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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Bureau of Industry and Security, Department of Commerce.
Final rule.
The Department of Commerce is amending the Export Administration Regulations (EAR) by adding twenty-four entities under twenty-six entries to the Entity List. These entities have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States and will be listed on the Entity List under the destinations of Latvia, Pakistan, Russia, Singapore, Switzerland, and the United Arab Emirates (U.A.E.). In addition, this final rule removes from the Entity List one entity listed in three entries under Oman, Saudi Arabia, and the U.A.E.
This rule is effective December 8, 2022.
Chair, End-User Review Committee, Office of the Assistant Secretary for Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-5991, Email:
The Entity List (supplement no. 4 to part 744 of the EAR (15 CFR parts 730-774)) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States, pursuant to § 744.11(b). The EAR impose additional license requirements on, and limit the availability of, most license exceptions for exports, reexports, and transfers (in-country) when a listed entity is a party to the transaction. The license review policy for each listed entity is identified in the “License Review Policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant
The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and makes all decisions to remove or modify an entry by unanimous vote.
The ERC has determined to add Fiber Optic Solutions under the destination of Latvia, and AO Kraftway Corporation PSC, AO Scientific Research Center for Electronic Computing, LLC Fibersense, and Scientific Production Company Optolink under the destination of Russia to the Entity List based on information that these companies significantly contribute to Russia's military and/or defense industrial base. In addition, the ERC determined to add AO PKK Milandr; Milandr EK OOO; Milandr ICC JSC; Milur IS, OOO; (OOO) Microelectronic Production Complex (MPK) Milandr; and Ruselectronics JSC under the destination of Russia and Milur SA under the destination of Switzerland to the Entity List due to their contributions to the Russian military and/or defense industrial base. The activity of these entities is contrary to the national security and foreign policy interests of the United States under §§ 744.11 and 744.21 of the EAR. These entities will receive a footnote 3 designation because the ERC has determined that they are Russian or Belarusian `military end users' in accordance with § 744.21. A footnote 3 designation subjects these entities to the Russia/Belarus-Military End User Foreign Direct Product (FDP) rule, detailed in § 734.9(g). These entities are added with a license requirement for all items subject to the EAR. They are added with a license review policy of denial for all items subject to the EAR other than food and medicine designated as EAR99, license applications for which will be reviewed on a case-by-case basis.
The ERC determined to add Falcon Trading International Trading Company, Hawk Electronic Supply, Merlin Trading Company, and Pulse Tech International Company under the destination of Singapore based on their actions and activities that are contrary to the national security and foreign policy interests of the United States. Specifically, these companies have supplied and/or attempted to supply items subject to the EAR to Pardazan System Namad Arman (PASNA), an entity located in Iran designated by the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) as a Specially Designated National (SDN). For these four entities added to the Entity List, BIS imposes a license requirement for all items subject to the EAR and will review license applications under a presumption of denial.
The ERC determined to add Dynamic Engineering Corporation to the Entity List because it poses an unacceptable risk of using or diverting items subject to the EAR for Pakistan's unsafeguarded nuclear activities, contrary to the national security and foreign policy interests of the United States. The ERC determined to add Rainbow Solutions, under the destination of Pakistan, based on its involvement in unsafeguarded nuclear activities and missile proliferation-related activities that are contrary to the national security and foreign policy of the United States. The ERC determined to add EnerQuip Private, Ltd., and Universal Drilling Engineers under the destination of Pakistan and Enerquip Limited (UAE) under the destination of the U.A.E. to the Entity List based on their contributions to unsafeguarded nuclear activities and missile proliferation-
For the reasons described above, this final rule adds the following twenty-four entities under twenty-six entries to the Entity List and includes, where appropriate, aliases:
This rule implements a decision of the ERC to remove one entity listed under three entries from the Entity List. The ERC determined to remove Safe Technical Supply Co., LLC from the Entity List based on information that BIS received pursuant to § 744.16(e) of the EAR and the review the ERC conducted in accordance with procedures described in supplement no. 5 to part 744 of the EAR. Prior to removal from the Entity List by this rule, Safe Technical Supply Co., LLC was listed under Oman, Saudi Arabia, and the U.A.E.
For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on December 8, 2022, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR).
On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.
1. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.
4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.
5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:
50 U.S.C. 4801-4852; 50 U.S.C. 4601
The additions read as follows:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 777 airplanes. This proposed AD was prompted by reports of cracks found in the station (STA) 2370 pivot bulkhead forward outer chord. Analysis revealed higher bending stresses across the chord than originally assessed. This proposed AD would require repetitive detailed and high frequency eddy current (HFEC) inspections of the STA 2370 pivot bulkhead forward outer chord and longeron fitting for cracking and applicable on-condition actions. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by January 23, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; website
• You may view this referenced service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available at
Luis Cortez-Muniz, Aerospace Engineer, Airframe Sections, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3958; 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 Luis Cortez-Muniz, Aerospace Engineer, Airframe Sections, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3958; email:
The FAA received a report indicating that cracks larger than 0.16 inch were found in the STA 2370 pivot bulkhead forward outer chord on airplanes with flight cycles lower than the inspection threshold of 16,000 flight cycles that was specified in certain Boeing service bulletins, which apply to airplanes having line numbers 1 through 244, inclusive. As of February 1, 2020, there were reports of 32 airplanes with crack findings before 16,000 flight cycles, and the lowest finding was at approximately 12,000 flight cycles. Boeing's finite-element model revealed higher bending stresses across the chord than originally assessed. The FAA issued AD 2022-06-07, Amendment 39-21973 (87 FR 24267, April 25, 2022) to address this unsafe condition for airplanes having line numbers 1 through 244, inclusive.
Further, based on those findings, Boeing and the FAA determined that airplanes having line number 245 and subsequent are also subject to such cracking. Boeing subsequently
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 Boeing Alert Requirements Bulletin 777-53A0098 RB, dated April 5, 2022. This service information specifies procedures for repetitive detailed and HFEC inspections of the STA 2370 pivot bulkhead forward outer chord and longeron fitting for cracking and applicable on-condition actions. On-condition actions include replacing the pivot bulkhead forward outer chord and splice angle; a detailed inspection of the upper aft longeron extension fittings at STA 2370 to STA 2380 and open hole HFEC inspection of the STA 2370 pivot bulkhead web, aft outer chord, upper and lower outer chord, and skin for any crack; and repair.
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 require accomplishing the actions specified in the service information already described except for any differences identified as exceptions in the regulatory text of this proposed AD.
The FAA estimates that this AD, if adopted as proposed, would affect 223 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 replacements or inspections that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need these replacements or inspections:
The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this proposed AD.
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.
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 this 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) by January 23, 2023.
None.
This AD applies to The Boeing Company Model 777-200, -200LR, -300, -300ER, and 777F airplanes, certificated in any category, as identified in Boeing Alert Requirements Bulletin 777-53A0098 RB, dated April 5, 2022.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of cracks found in the station (STA) 2370 pivot bulkhead forward outer chord. Analysis revealed higher bending stresses across the chord than originally assessed. The FAA is issuing this AD to address cracking in the STA 2370 pivot bulkhead forward outer chord. Such cracking, if not detected and corrected, could result in a severed pivot bulkhead outer chord, loss of horizontal stabilizer control, and loss of controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified by paragraph (h) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 777-53A0098 RB, dated April 5, 2022, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 777-53A0098 RB, dated April 5, 2022.
(1) Where the Compliance Time columns of the tables in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 777-53A0098 RB, dated April 5, 2022, use the phrase “the original issue date of Requirements Bulletin 777-53A0098 RB,” this AD requires using “the effective date of this AD.”
(2) Where Boeing Alert Requirements Bulletin 777-53A0098 RB, dated April 5, 2022, specifies contacting Boeing for repair instructions: This AD requires doing the repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD.
(1) The Manager, Seattle 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 responsible Flight Standards 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 (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Luis Cortez-Muniz, Aerospace Engineer, Airframe Sections, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3958; 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) Boeing Alert Requirements Bulletin 777-53A0098 RB, dated April 5, 2022.
(ii) [Reserved]
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; website
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(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,
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2012-02-07, which applies to certain General Electric Company (GE) CF6-45 and CF6-50 series model turbofan engines with a specified low-pressure turbine (LPT) rotor stage 3 disk installed. AD 2012-02-07 requires inspections of high-pressure turbine (HPT) and LPT rotors, engine checks, vibration surveys, an optional LPT rotor stage 3 disk removal after a failed HPT blade borescope inspection (BSI) or a failed engine core vibration survey, establishes a lower life limit for the affected LPT rotor stage 3 disks, and requires removing these disks from service at times determined by a drawdown plan. Since the FAA issued AD 2012-02-07, four additional events of separation of the LPT rotor assembly have been reported resulting in the LPT rotor assembly departing the rear of the engine. The manufacturer has improved the design of the LPT rotor stage 3 disk. This proposed AD would continue to require inspections of HPT and LPT rotor stage 1 and stage 2 blades, vibration surveys, and use of a lower life limit for the affected LPT rotor stage 3 disks. As a terminating action to the inspections, engine checks, and vibration surveys, this proposed AD would require removal and replacement of the LPT rotor stage 3 disk with a redesigned LPT rotor stage 3 disk. This proposed AD would also revise the compliance time of the drawdown plan for the removal and replacement of the LPT rotor stage 3 disk. This proposed AD would also prohibit the installation
The FAA must receive comments on this proposed AD by January 23, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
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 2012-02-07, Amendment 39-16930 (77 FR 4650, January 31, 2012) (AD 2012-02-07), for GE CF6-45A, CF6-45A2, CF6-50A, CF6-50C, CF6-50CA, CF6-50C1, CF6-50C2, CF6-50C2B, CF6-50C2D, CF6-50E, CF6-50E1, CF6-50E2, and CF6-50E2B model turbofan engines, including engines marked on the engine data plate as CF6-50C2-F and CF6-50C2-R, with a specified LPT rotor stage 3 disk, identified by part number (P/N), installed. AD 2012-02-07 superseded AD 2011-02-07, Amendment 39-16580 (76 FR 6323, February 4, 2011) and AD 2011-18-01, Amendment 39-16783 (76 FR 52213, August 22, 2011). AD 2012-02-07 was prompted by the determination that a new lower life limit for the affected LPT rotor stage 3 disks was necessary. AD 2012-02-07 retained the requirements of the two superseded ADs, which required inspections of HPT and LPT rotors, ultrasonic inspection (UI) of the LPT rotor stage 3 disk forward spacer arm, exhaust gas temperature (EGT) resistance check, EGT thermocouple inspection, cleaning, fluorescent-penetrant inspection (FPI) of the LPT rotor stage 3 disk, engine checks, and vibration surveys. AD 2012-02-07 also added an optional LPT rotor stage 3 disk removal after a failed HPT BSI or a failed engine core vibration survey, established a new lower life limit for the affected LPT rotor stage 3 disks, and required removing those disks from service at times determined by a drawdown plan. The agency issued AD 2012-02-07 to prevent critical life-limited rotating engine part failure, which could result in an uncontained engine failure and damage to the airplane.
Since the FAA issued AD 2012-02-07, the FAA has received reports of four additional events of separation of the LPT rotor assembly, which resulted in the LPT rotor assembly departing the rear of the engine. Following the most recent separation event, the FAA determined that due to the complexity of AD 2012-02-07, the limitations of certain operators to access required equipment and training needed to accomplish the inspections, and the manufacturer's redesign of the LPT rotor stage 3 disk, AD 2012-02-07 should be superseded. The redesigned LPT rotor stage 3 disk, P/N 2453M80P01, has a thicker forward spacer arm, which reduces stress on the forward arm area and increases its high cycle fatigue alternating stress capability.
Accordingly, the FAA is proposing to require the replacement of the affected LPT rotor stage 3 disk with a redesigned LPT rotor stage 3 disk, P/N 2453M80P01, as a terminating action to the HPT blade inspection, vibration survey, UI, EGT resistance check, EGT thermocouple inspection, cleaning, and FPI. This proposed AD would also revise the installation prohibition for affected LPT rotor stage 3 disks. AD 2012-02-07 prohibited the installation or reinstallation of an affected LPT rotor stage 3 disk if it had exceeded 6,200 cycles since new. This proposed AD would prohibit installing an affected LPT rotor stage 3 disk onto any engine.
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 designs.
This proposed AD would retain certain requirements of AD 2012-02-07. As a terminating action to the HPT blade inspection, vibration survey, UI, EGT resistance check, EGT thermocouple inspection, cleaning, and FPI of the LPT rotor stage 3 disk, this proposed AD would require removal and replacement of the LPT rotor stage 3 disk with improved design LPT rotor
The FAA estimates that this AD, if adopted as proposed, would affect 26 engines installed on airplanes of U.S. registry.
The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
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 January 23, 2023.
This AD replaces AD 2012-02-07, Amendment 39-16930 (77 FR 4650, January 31, 2012) (AD 2012-02-07).
This AD applies to General Electric Company (GE) CF6-45A, CF6-45A2, CF6-50A, CF6-50C, CF6-50CA, CF6-50C1, CF6-50C2, CF6-50C2B, CF6-50C2D, CF6-50E, CF6-50E1, CF6-50E2, and CF6-50E2B model turbofan engines, including engines marked on the engine data plate as CF6-50C2-F and CF6-50C2-R, with an installed low-pressure turbine (LPT) rotor stage 3 disk having a part number listed in Table 1 to paragraph (c) of this AD.
Joint Aircraft System Component (JASC) Code 7250, Turbine Section.
This AD was prompted by the occurrence of four events of separation of the LPT rotor assembly, occurring after the effective date of AD 2012-02-07, which resulted in the LPT rotor assembly departing the rear of the engine. The FAA is issuing this AD to prevent critical life-limited rotating engine part failure. The unsafe condition, if not addressed, could result in an uncontained engine failure and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Borescope Inspections (BSI) of High-Pressure Turbine (HPT) Rotor Stage 1 and Stage 2 Blades:
For the BSIs required by paragraphs (g)(1)(i) through (iii) of this AD, inspect the blades from the forward and aft directions. Inspect all areas of the blade airfoil. The inspection must include blade leading and trailing edges and their convex and concave airfoil surfaces. Inspect for signs of impact, cracking, burning, damage, and distress.
(i) Within 75 cycles since last inspection (CSLI) or before further flight, whichever occurs later, perform an initial BSI of the HPT rotor stage 1 and stage 2 blades.
(ii) Thereafter, within every 75 CSLI, repeat the BSI of the HPT rotor stage 1 and stage 2 blades.
(iii) Within the cycle limits after the engine has experienced any of the events specified in Table 1 to paragraph (g)(1) of this AD, borescope-inspect the HPT rotor stage 1 and stage 2 blades.
(iv) If the engine fails any of the BSIs required by this AD, before further flight, remove the engine from service.
(2) Engines with Damaged HPT Rotor Blades:
For those engines that fail any BSI requirements of this AD, before returning the engine to service, accomplish the actions required by paragraph (g)(2)(i) or (ii) of this AD:
(i) Remove the LPT rotor stage 3 disk from service; or
(ii) Perform a fluorescent-penetrant inspection (FPI) of the inner diameter surface forward cone body (forward spacer arm) of the LPT rotor stage 3 disk as specified in paragraphs (g)(6)(i)(A) through (C) of this AD.
(3) EGT Thermocouple Probe Inspections.
(i) Within 750 CSLI, or before further flight, whichever occurs later, inspect the EGT thermocouple probe for damage.
(ii) Thereafter, within every 750 CSLI, re-inspect the EGT thermocouple probe for damage.
(iii) If any EGT thermocouple probe shows wear through the thermocouple guide sleeve or contact between the turbine mid-frame liner and the EGT thermocouple probe, before further flight, remove and replace the EGT thermocouple probe and ensure the turbine mid-frame liner does not contact the EGT thermocouple probe.
(4) EGT System Resistance Checks.
(i) Within 750 cycles since the last resistance check on the EGT system or before further flight, whichever occurs later, perform an EGT system resistance check.
(ii) Thereafter, within every 750 cycles since the last resistance check, repeat the EGT system resistance check.
(iii) If an EGT system component fails the resistance system check, before further flight, remove and replace, or repair the EGT system component.
(5) Engine Core Vibration Survey.
(i) Within 350 cycles since the last engine core vibration survey or before further flight, whichever occurs later, perform an initial engine core vibration survey.
(ii) Use about a one-minute acceleration and a one-minute deceleration of the engine between ground idle and 84% N2 (about 8,250 rpm) to perform the engine core vibration survey.
(iii) Use a spectral/trim balance analyzer or equivalent to measure the N2 rotor vibration.
(iv) If the vibration level is above 5 mils Double Amplitude then, before further flight, remove the engine from service.
(v) For those engines that fail any engine core vibration survey requirements of this AD, then before returning the engine to service:
(A) Remove the LPT rotor stage 3 disk from service; or
(B) Perform an FPI of the inner diameter surface forward spacer arm of the LPT rotor stage 3 disk as specified in paragraph (g)(6)(i)(A) through (C) of this AD.
(vi) Thereafter, within every 350 cycles since the last engine core vibration survey, perform the engine core vibration survey as required in paragraphs (g)(5)(i) through (v) of this AD.
(vii) If the engine has experienced any vibration reported by maintenance or flight crew that is suspected to be caused by the engine core (N2), within 10 cycles after the report, perform the engine core vibration survey as required in paragraphs (g)(5)(i) through (v) of this AD.
(viii) Vibration surveys carried out in an engine test cell as part of an engine manual performance run fulfill the vibration survey requirements of paragraphs (g)(5)(ii) and (iii) of this AD.
(6) Initial and Repetitive FPI of LPT Rotor Stage 3 Disk.
(i) At the next shop visit after accumulating 1,000 cycles since the last FPI of the LPT rotor stage 3 disk forward spacer arm or before further flight, whichever occurs later:
(A) Clean the LPT rotor stage 3 disk forward spacer arm, including the use of a wet-abrasive blast, to eliminate residual or background fluorescence.
(B) Perform an FPI of the LPT rotor stage 3 disk forward spacer arm for cracks and for a band of fluorescence. Include all areas of the disk forward spacer arm and the inner diameter surface forward spacer arm of the LPT rotor stage 3 disk.
(C) If a crack or a band of fluorescence is present, before further flight, remove the disk from service.
(ii) Thereafter, at each engine shop visit that occurs after accumulating 1,000 cycles since the last FPI of the LPT rotor stage 3 disk forward spacer arm, clean and perform an FPI of the LPT rotor stage 3 disk forward spacer arm, as specified in paragraph (g)(6)(i)(A) through (C) of this AD.
(7) Removal of LPT Rotor Stage 3 Disk.
(i) For any installed LPT rotor stage 3 disk having a part number listed in Table 1 to paragraph (c) of this AD, at the first occurrence of any one of the conditions identified in paragraphs (g)(7)(i)(A) through (C) of this AD, remove the LPT rotor stage 3 disk from service and replace with LPT rotor stage 3 disk part number 2453M80P01.
(A) For a disk that has accumulated fewer than 3,200 cycles since new (CSN) as of March 6, 2012 (the effective date of AD 2012-02-07), remove the disk from service before accumulating 6,200 CSN.
(B) For a disk that accumulated 3,200 or more CSN as of March 6, 2012 (the effective date of AD 2012-02-07), do the actions required by paragraphs (g)(7)(i)(B)(
(
(
(C) Before exceeding 18 months from the effective date of this AD.
Replacement of the LPT rotor stage 3 disk in accordance with paragraph (g)(7) of this AD constitutes terminating action for the inspections, engine checks and vibration surveys required by paragraphs (g)(1) through (6) of this AD.
After the effective date of this AD, do not install or reinstall onto any engine an LPT rotor stage 3 disk listed in Table 1 to paragraph (c) of this AD that has accumulated 6,200 CSN or more.
(1) For the purposes of this AD, an EGT above redline is a confirmed over-temperature indication that is not a result of EGT system error.
(2) For the purposes of this AD, a shift in the smoothed EGT trending data is a shift in a rolling average of EGT readings that can be confirmed by a corresponding shift in the trending of fuel flow or fan speed/core speed (N1/N2) relationship. You can find further guidance about evaluating EGT trend data in GE Company Service Rep Tip 373 ”Guidelines For Parameter Trend Monitoring.”
(3) For the purposes of this AD, an engine shop visit is the induction of an engine into the shop, where the separation of a major engine flange occurs; except the following maintenance actions, or any combination, are not considered engine shop visits:
(i) Induction of an engine into a shop solely for removal of the compressor top or bottom case for airfoil maintenance or variable stator vane bushing replacement.
(ii) Induction of an engine into a shop solely for removal or replacement of the stage 1 fan disk.
(iii) Induction of an engine into a shop solely for replacement of the turbine rear frame.
(iv) Induction of an engine into a shop solely for replacement of the accessory gearbox or transfer gearbox, or both.
(v) Induction of an engine into a shop solely for replacement of the fan forward case.
(4) For the purposes of this AD, a raw EGT trend data point above the smoothed average is a confirmed temperature reading over the rolling average of EGT readings that is not a result of EGT system error.
You may take credit for the actions required by paragraph (g) of this AD if they were performed before the effective date of this AD using GE Service Bulletin (SB) No. CF6-50 SB 72-1315, Initial Issue, dated June 3, 2011, or GE SB No. CF6-50 SB 72-1315, Revision 1, dated June 30, 2011.
(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 identified in paragraph (m) of this AD and email it to:
(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.
(3) AMOCs approved previously for AD 2010-12-10, Amendment 39-16331 (75 FR 32649, June 9, 2010), AD 2011-02-07, Amendment 39-16580 (76 FR 6323, February 4, 2011), or AD 2011-18-01, Amendment 39-16783 (76 FR 52213, August 22, 2011) are approved as AMOCs for the corresponding provisions of this AD.
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:
None.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations that identify certain syndicated conservation easement transactions and substantially similar transactions as listed transactions, a type of reportable transaction. Material advisors and certain participants in these listed transactions are required to file disclosures with the IRS and are subject to penalties for failure to disclose. The proposed regulations affect participants in these transactions as well as material advisors. In addition, while the proposed regulations exclude qualified organizations from being treated as participants or parties to a prohibited tax shelter transaction subject to excise tax, this notice of proposed rulemaking requests comments on whether the final regulations should remove the exclusion from the application of the excise tax for qualified organizations that facilitate syndicated conservation easement transactions. Finally, this document provides notice of a public hearing on the proposed regulations.
Commenters are strongly encouraged to submit public comments electronically. Submit electronic submissions via the Federal eRulemaking Portal at
For those requesting to speak during the hearing, send an outline of topic submissions electronically via the Federal eRulemaking Portal at
Individuals who want to testify by telephone at the public hearing must send an email to
Concerning the proposed regulations, Theresa Melchiorre of the Office of Associate Chief Counsel (Income Tax and Accounting), (202) 317-7011; concerning submissions of comments and requests for hearing, Regina L. Johnson at (202) 317-5177 or
Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in the preamble under the
A public hearing is being held by teleconference on March 1, 2023, beginning at 10 a.m. ET unless no outlines are received by February 6, 2023.
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to comment by telephone at the hearing must submit written or electronic comments and an outline of the topics to be discussed as well as the time to be devoted to each topic by February 6, 2023, as prescribed in the preamble under the
A period of ten minutes will be allocated to each person for making comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available at
Announcement 2020-4, 2020-17 I.R.B. 667 (April 20, 2020), provides that until further notice, public hearings conducted by the IRS will be held telephonically. Any telephonic hearing will be made accessible to people with disabilities.
This document contains proposed additions to 26 CFR part 1 (Income Tax Regulations) under section 6011 of the Internal Revenue Code (Code). The additions identify certain transactions that are “listed transactions” for purposes of section 6011.
Section 6011(a) generally provides that, when required by regulations prescribed by the Secretary of the Treasury or her delegate (Secretary), “any person made liable for any tax imposed by this title, or with respect to the collection thereof, shall make a return or statement according to the forms and regulations prescribed by the Secretary. Every person required to make a return or statement shall include therein the information required by such forms or regulations.”
On February 28, 2000, the Treasury Department and the IRS issued a series of temporary regulations (T.D. 8877; T.D. 8876; T.D. 8875) and cross-referencing notices of proposed rulemaking (REG-103735-00; REG-110311-98; REG-103736-00) under sections 6011, 6111, and 6112. The temporary regulations and cross-referencing notices of proposed rulemaking were published in the
Following the 2003 promulgation of § 1.6011-4, Congress passed the American Jobs Creation Act of 2004 (AJCA), Public Law 108-357, 118 Stat. 1418 (October 22, 2004), which added sections 6707A, 6662A, and 6501(c)(10) to the Code, and revised sections 6111, 6112, 6707, and 6708 of the Code.
The Committee believes that the best way to combat tax shelters is to be aware of them. The Treasury Department, using the tools available, issued regulations requiring disclosure of certain transactions and requiring organizers and promoters of tax-engineered transactions to maintain customer lists and make these lists available to the IRS. Nevertheless, the Committee believes that additional legislation is needed to provide the Treasury Department with additional tools to assist its efforts to curtail abusive transactions. Moreover, the Committee believes that a penalty for failing to make the required disclosures, when the imposition of such penalty is not dependent on the tax treatment of the underlying transaction ultimately being sustained, will provide an additional incentive for taxpayers to satisfy their reporting obligations under the new disclosure provisions.
In Footnote 232 of the House Report, the Committee on Ways and Means notes that the statutory definitions of “reportable transaction” and “listed transaction” were intended to incorporate the pre-AJCA regulatory definitions while providing the Secretary with leeway to make changes to those definitions:
The provision states that, except as provided in regulations, a listed transaction means a reportable transaction, which is the same as, or substantially similar to, a transaction specifically identified by the Secretary as a tax avoidance transaction for purposes of section 6011. For this purpose, it is expected that the definition of “substantially similar” will be the definition used in Treas. Reg. sec. 1.6011-4(c)(4). However, the Secretary may modify this definition (as well as the definitions of “listed transaction” and “reportable transactions”) as appropriate.
Section 6707A(c)(1) defines a “reportable transaction” as “any transaction with respect to which information is required to be included with a return or statement because, as determined under regulations prescribed under section 6011, such transaction is of a type which the Secretary determines as having a potential for tax avoidance or evasion.” A “listed transaction” is defined by section 6707A(c)(2) as “a reportable transaction which is the same as, or substantially similar to, a transaction specifically identified by the Secretary
Section 6111(a), as revised by the AJCA, provides that each material advisor with respect to any reportable transaction must make a return setting forth: (1) information identifying and describing the transaction, (2) information describing any potential tax benefits expected to result from the transaction, and (3) such other information as the Secretary may prescribe. Such return must be filed not later than the date specified by the Secretary. Section 6111(b)(2) provides that a reportable transaction has the meaning given to such term by section 6707A(c).
Section 6112(a), as revised by the AJCA, provides that each material advisor with respect to any reportable transaction (as defined in section 6707A(c)) must (whether or not required to file a return under section 6111 with respect to such transaction) maintain a list (1) identifying each person with respect to whom such advisor acted as a material advisor and (2) containing such other information as the Secretary may by regulations require.
On August 3, 2007, the Treasury Department and the IRS published final regulations in the
Section 1.6011-4(a) provides that every taxpayer that has participated in a reportable transaction within the meaning of § 1.6011-4(b) and who is required to file a tax return must file a disclosure statement within the time prescribed in § 1.6011-4(e).
Section 1.6011-4(d) and (e) provide that the disclosure statement—Form 8886,
Reportable transactions include listed transactions, confidential transactions, transactions with contractual protection, loss transactions, and transactions of interest.
Section 1.6011-4(c)(4) provides that a transaction is “substantially similar” if it is expected to obtain the same or similar types of tax consequences and is either factually similar or based on the same or similar tax strategy. Receipt of an opinion regarding the tax consequences of the transaction is not relevant to the determination of whether the transaction is the same as or substantially similar to another transaction. Further, the term substantially similar must be broadly construed in favor of disclosure. For example, a transaction may be substantially similar to a listed transaction even though it may involve different entities or use different Code provisions.
Section 1.6011-4(c)(3)(i)(A) provides that a taxpayer has participated in a listed transaction if the taxpayer's tax return reflects tax consequences or a tax strategy described in the published guidance that lists the transaction under § 1.6011-4(b)(2). Published guidance may identify other types or classes of persons that will be treated as participants in a listed transaction. Published guidance may also identify types or classes of persons that will not be treated as participants in a listed transaction.
Section 1.6011-4(e)(2)(i) provides that if a transaction becomes a listed transaction after the filing of a taxpayer's tax return reflecting the taxpayer's participation in the listed transaction and before the end of the period of limitations for assessment for any taxable year in which the taxpayer participated in the listed transaction, then a disclosure statement must be filed with OTSA within 90 calendar days after the date on which the transaction becomes a listed transaction. This requirement extends to an amended return and exists regardless of whether the taxpayer participated in the transaction in the year the transaction became a listed transaction. The Commissioner of Internal Revenue (Commissioner) may also determine the time for disclosure of listed transactions in the published guidance identifying the transaction.
Participants required to disclose these transactions under § 1.6011-4 who fail to do so are subject to penalties under section 6707A. Section 6707A(b) provides that the amount of the penalty is 75 percent of the decrease in tax shown on the return as a result of the reportable transaction (or which would have resulted from such transaction if such transaction were respected for Federal tax purposes), subject to minimum and maximum penalty amounts. The minimum penalty amount is $5,000 in the case of a natural person and $10,000 in any other case. For a listed transaction, the maximum penalty amount is $100,000 in the case of a natural person and $200,000 in any other case.
Additional penalties may also apply. In general, section 6662A imposes a 20 percent accuracy-related penalty on any understatement (as defined in section 6662A(b)(1)) attributable to an adequately disclosed reportable transaction. If the taxpayer had a requirement to disclose participation in the reportable transaction but did not adequately disclose the transaction in accordance with the regulations under section 6011, the taxpayer is subject to an increased penalty rate equal to 30 percent of the understatement.
Participants required to disclose listed transactions who fail to do so are also subject to an extended period of limitations under section 6501(c)(10). That section provides that the time for assessment of any tax with respect to the transaction shall not expire before the date that is one year after the earlier of the date the participant discloses the transaction or the date a material advisor discloses the participation pursuant to a written request under section 6112(b)(1)(A).
Section 301.6111-3(a) of the Procedure and Administration Regulations provides that each material advisor with respect to any reportable
Section 301.6111-3(b)(1) provides that a person is a material advisor with respect to a transaction if the person provides any material aid, assistance, or advice with respect to organizing, managing, promoting, selling, implementing, insuring, or carrying out any reportable transaction, and directly or indirectly derives gross income in excess of the threshold amount as defined in § 301.6111-3(b)(3) for the material aid, assistance, or advice. Under § 301.6111-3(b)(2)(i) and (ii), a person provides material aid, assistance, or advice if the person provides a tax statement, which is any statement (including another person's statement), oral or written, that relates to a tax aspect of a transaction that causes the transaction to be a reportable transaction as defined in § 1.6011-4(b)(2) through (7).
Material advisors must disclose transactions on Form 8918,
Section 301.6111-3(d)(2) provides that the IRS will issue to a material advisor a reportable transaction number with respect to the disclosed reportable transaction. Receipt of a reportable transaction number does not indicate that the disclosure statement is complete, nor does it indicate that the transaction has been reviewed, examined, or approved by the IRS. Material advisors must provide the reportable transaction number to all taxpayers and material advisors for whom the material advisor acts as a material advisor as defined in § 301.6111-3(b). The reportable transaction number must be provided at the time the transaction is entered into, or, if the transaction is entered into prior to the material advisor receiving the reportable transaction number, within 60 calendar days from the date the reportable transaction number is mailed to the material advisor.
Additionally, material advisors must prepare and maintain lists identifying each person with respect to whom the advisor acted as a material advisor with respect to the reportable transaction in accordance with § 301.6112-1(b) and furnish such lists to the IRS in accordance with § 301.6112-1(e).
Section 6707(a) provides that a material advisor who fails to file a timely disclosure, or files an incomplete or false disclosure statement, is subject to a penalty. Pursuant to section 6707(b)(2), for listed transactions, the penalty is the greater of (A) $200,000, or (B) 50 percent of the gross income derived by such person with respect to aid, assistance, or advice which is provided with respect to the listed transaction before the date the return is filed under section 6111.
A material advisor may also be subject to a penalty under section 6708 for failing to maintain a list under section 6112(a) and failing to make the list available upon written request to the Secretary in accordance with section 6112(b) within 20 business days after the date of such request. Section 6708(a) provides that the penalty is $10,000 per day for each day of the failure after the 20th day. However, no penalty will be imposed with respect to the failure on any day if such failure is due to reasonable cause.
Section 4965 of the Code, which was enacted in 2006, is intended to deter certain “tax-exempt entities” (as defined in section 4965(c)) from facilitating prohibited tax shelter transactions, which include listed transactions. Section 4965(a)(1) provides, in part, that if a transaction is a prohibited tax shelter transaction at the time a tax-exempt entity becomes a party to the transaction, the entity must pay a tax for the taxable year and any subsequent taxable year as provided in section 4965(b)(1). Tax-exempt entities subject to the tax are listed in section 4965(c)(1)-(3) and include, among others, entities and governmental units described in sections 501(c) and 170(c) (other than the United States). A tax-exempt entity that is a party to a prohibited tax shelter transaction generally is also subject to various reporting and disclosure obligations. Additionally, an entity manager is subject to excise taxes under section 4965(a)(2) if the manager approves the entity as a party (or otherwise causes the entity to be a party) to a prohibited tax shelter transaction and knows or has reason to know that the transaction is a prohibited tax shelter transaction.
The amount of the section 4965 tax owed by a tax-exempt entity depends on whether the tax-exempt entity knows, or has reason to know, that a transaction is a prohibited tax shelter transaction at the time the entity becomes a party to the transaction. A tax-exempt entity is treated as knowing or having reason to know that a transaction is a prohibited tax shelter transaction if one or more of its entity managers knew or had reason to know that the transaction was a prohibited tax shelter transaction at the time the entity manager(s) approved the entity as (or otherwise caused the entity to be) a party to the transaction.
Section 53.4965-4(a)(1) provides that a tax-exempt entity is a “party” to a prohibited tax shelter transaction if it facilitates a prohibited tax shelter transaction by reason of its tax-exempt, tax-indifferent, or tax-favored status. In addition, under § 53.4965-4(a)(2) and (b), the Secretary may issue published guidance to identify tax-exempt entities by type, class, or role that will or will not be treated as parties to a prohibited tax shelter transaction.
If the tax-exempt entity unknowingly becomes a party to a prohibited tax shelter transaction, the section 4965 tax generally equals the greater of (1) the product of the highest rate of tax under section 11 (currently 21 percent) and the entity's net income attributable to the prohibited tax shelter transaction, or (2) the product of the highest rate of tax under section 11 and 75 percent of the proceeds received by the entity that are attributable to the prohibited tax shelter transaction. If the tax-exempt entity knew or had reason to know that the transaction was a prohibited tax shelter transaction at the time the tax-exempt entity became a party to the transaction, the section 4965 tax increases to the greater of (1) 100 percent of the entity's net income attributable to the prohibited tax shelter transaction, or (2) 75 percent of the entity's proceeds attributable to the prohibited tax shelter transaction.
The terms “net income” and “proceeds” are defined in § 53.4965-8.
The amount of the section 4965 tax on an “entity manager” equals $20,000 for each time the manager approves the tax-exempt entity as (or otherwise causes such entity to be) a party to a prohibited tax shelter transaction and knows or has reason to know that the transaction is a prohibited tax shelter transaction. This liability is not joint and several.
Section 53.6011-1 requires that a tax-exempt entity subject to the section 4965 excise tax must file Form 4720,
Section 6011(g) and § 301.6011(g)-1 provide that any taxable party to a prohibited tax shelter transaction must disclose to each tax-exempt entity that the taxable party knows or has reason to know is a party to such transaction that the transaction is a prohibited tax shelter transaction.
Section 170(f)(3)(A) provides that, in the case of a contribution (not made by a transfer in trust) of an interest in property that consists of less than the taxpayer's entire interest in such property, a deduction will be allowed only to the extent that the value of the interest contributed would be allowable as a deduction under section 170 if such interest had been transferred in trust.
Section 170(f)(3)(B)(iii) provides that section 170(f)(3)(A) does not apply to a qualified conservation contribution.
Section 170(h)(1) provides that, for purposes of section 170(f)(3)(B)(iii), the term “qualified conservation contribution” means a contribution (1) of a qualified real property interest, (2) to a qualified organization, (3) exclusively for conservation purposes.
Under section 170(h)(2), the term “qualified real property interest” means any of the following interests in real property: (A) the entire interest of the donor other than a qualified mineral interest as defined in section 170(h)(6); (B) a remainder interest; and (C) a restriction (granted in perpetuity) on the use that may be made of the real property.
Section 170(h)(3) provides that the term “qualified organization” generally includes governmental units, certain public charities, and Type I supporting organizations thereto.
Section 170(h)(4)(A) generally provides that the term “conservation purpose” includes (1) the preservation of land areas for outdoor recreation by, or the education of, the general public; (2) the protection of a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem; (3) the preservation of open space (including farmland and forest land) where such preservation is either for the scenic enjoyment of the general public, or pursuant to a clearly delineated Federal, State, or local governmental conservation policy, and that will yield a significant public benefit, or (4) the preservation of an historically important land area or a certified historic structure (as defined in section 170(h)(4)(C)).
Section 170(h)(4)(B) provides a special rule with respect to buildings in registered historic districts. Among other requirements, any contribution of a qualified real property interest that is a restriction with respect to the exterior of a building described in section 170(h)(4)(C)(ii) is not considered to be exclusively for conservation purposes unless such interest includes a restriction which preserves the entire exterior of the building (including the front, sides, rear, and height of the building), and prohibits any change in the exterior of the building which is inconsistent with the historical character of such exterior.
Section 170(h)(4)(C) provides that, for purposes of section 170(h)(4)(A)(iv), the term “certified historic structure” means any building, structure, or land area which is listed in the National Register, or any building which is located in a registered historic district (as defined in section 47(c)(3)(B) of the Code) and is certified by the Secretary of the Interior to the Secretary as being of historic significance to the district. A building, structure, or land area satisfies section 170(h)(4)(C) if it satisfies that definition either at the time of the transfer or on the due date (including extensions) for filing the transferor's return under chapter 1 of the Code for the taxable year in which the transfer is made.
Section 170(h)(5)(A) provides that, for purposes of section 170(h), a contribution is not treated as exclusively for conservation purposes unless the conservation purpose is protected in perpetuity. Section 170(h)(2)(C) and section 1.170A-14(b)(2) provide in part that a perpetual conservation restriction is a restriction granted in perpetuity on the use that may be made of real property including an easement or other interest in property that under state law has attributes similar to an easement.
Some promoters have been syndicating conservation easement transactions that purport to give investors in a partnership or other pass-through entity (pass-through entity) the opportunity to claim a charitable contribution deduction in amounts that significantly exceed the amounts invested. In one type of an abusive syndicated conservation easement transaction, the promoter obtains an appraisal that purports to be a qualified appraisal as defined in section
On December 23, 2016, the IRS released Notice 2017-10, 2017-4 I.R.B. 544, which was subsequently modified by Notice 2017-29, 2017-20 I.R.B. 1243, and Notice 2017-58, 2017-42 I.R.B. 326, alerting taxpayers and their representatives that syndicated conservation easement transactions described in Notice 2017-10, and substantially similar transactions, are tax avoidance transactions and identifying them as listed transactions for purposes of § 1.6011-4(b)(2) and sections 6111 and 6112. Notice 2017-10 also alerts persons involved with the transactions that certain responsibilities may arise from their involvement. Notice 2017-10, as modified by Notice 2017-29, specifically excludes a donee described in section 170(c) from being treated as a party to the transaction under section 4965 of the Code (“section 4965 carve-out”), a participant under § 1.6011-4, or a material advisor under section 6111(b)(1). Notice 2017-10 applies to easements placed on any real property, including historically important land areas and certified historic structures.
Notice 2017-10 describes the following transaction as a listed transaction. An investor receives promotional materials that offer investors in a pass-through entity the possibility of a charitable contribution deduction that equals or exceeds an amount that is two and one-half times (that is, 250 percent of) the amount of the investor's investment. The promotional materials may be oral or written. For purposes of Notice 2017-10, promotional materials include, but are not limited to, documents described in § 301.6112-1(b)(3)(iii)(B). The investor purchases an interest, directly or indirectly (through one or more tiers of pass-through entities), in the pass-through entity that holds real property. The pass-through entity that holds the real property contributes a conservation easement encumbering the property to a tax-exempt entity and allocates, directly or through one or more tiers of pass-through entities, a charitable contribution deduction to the investor. Following that contribution, the investor reports on his or her federal income tax return a charitable contribution deduction with respect to the conservation easement.
Notice 2017-10 creates a rule only for purposes of reporting and penalties under the reportable transaction rules. No inference should be drawn from Notice 2017-10 (or these regulations) regarding the appropriateness of any deduction in any specific case, including cases in which the deduction is less than two and one-half times the amount of an investor's investment.
The foregoing efforts to combat abuse notwithstanding, the Treasury Department and IRS fully support otherwise proper deductions attributable to the voluntary contribution of a properly valued restriction on real property requiring the real property to be granted and protected for conservation purposes in perpetuity.
On March 3, 2022, the Sixth Circuit issued an order in
Relying on an analysis similar to the Sixth Circuit's analysis in
The Treasury Department and the IRS disagree with the Sixth Circuit's decision in
These proposed regulations inform taxpayers that participate in syndicated conservation easement transactions, and substantially similar transactions, and persons who act as material advisors with respect to these transactions, and substantially similar transactions, that, once these proposed regulations are published in final form, those taxpayers and material advisors must disclose the transactions in accordance with the final regulations and the regulations issued under section 6011 and 6111. Material advisors must also maintain lists as required by section 6112. Prior to the date these regulations are published as final regulations, it is the position of the Treasury Department and the IRS that disclosure and list maintenance requirements for syndicated conservation easement transactions identified as listed transactions in Notice 2017-10 continue to be in effect, other than in the Sixth Circuit. In addition, taxpayers, including taxpayers in the Sixth Circuit, who have filed a tax return reflecting their participation in a syndicated conservation easement transaction before the final regulations are published and who have not disclosed the transaction pursuant to Notice 2017-10 will be required to file a disclosure statement within 90 calendar days after the date on which the final regulations are published if the period of limitations for assessment for any taxable year in which the taxpayer participated in the transaction remains
The IRS intends to challenge the purported tax benefits from these syndicated conservation easement transactions based on the overvaluation of the conservation easement. The IRS may also challenge the purported tax benefits from these transactions based on failure to comply with the requirements of section 170 (including, for example, lack of donative intent or the failure to comply with requirements of section 170(h)), lack of economic substance, lack of business purpose, violation of the partnership anti-abuse rule, or application of other rules or doctrines based on the facts of a particular case.
Proposed § 1.6011-9(a) provides that a transaction that is the same as, or substantially similar to, a syndicated conservation easement transaction described in proposed § 1.6011-9(b) is a listed transaction for purposes of § 1.6011-4(b)(2) and sections 6111 and 6112. “Substantially similar to” is defined in § 1.6011-4(c)(4) to include any transaction that is expected to obtain the same or similar types of tax consequences and that is either factually similar or based on the same or a similar tax strategy. In the context of a syndicated conservation easement transaction, that would include, for example, transactions in which the contributed property is described in section 170(h)(2)(A) or (B) or a fee interest in real property.
Proposed § 1.6011-9(b) defines a syndicated conservation easement transaction as a transaction in which the four elements described in proposed § 1.6011-9(b)(1) through (4) occur (regardless of the order in which they occur). These four elements are as follows:
A taxpayer receives promotional materials that offer investors in a pass-through entity the possibility of a charitable contribution deduction that equals or exceeds an amount that is two and one-half times the amount of the taxpayer's investment in the pass-through entity. The proposed regulations refer to this element as the “2.5 times rule.” Proposed § 1.6011-9(c)(4) states that, for this purpose, the term “promotional materials” includes materials described in § 301.6112-1(b)(3)(iii)(B) and any other written or oral communication regarding the transaction provided to investors, such as marketing materials, appraisals (including preliminary appraisals, draft appraisals, and the appraisal that is attached to the taxpayer's return), websites, transactional documents such as the deed of conveyance, private placement memoranda, tax opinions, operating agreements, subscription agreements, statements of the anticipated value of the conservation easement, and statements of the anticipated amount of the charitable contribution deduction. These proposed regulations provide additional guidance on how to determine whether the 2.5 times rule is met, as discussed in Part II of the Explanation of Provisions section of this preamble.
The taxpayer acquires an interest, directly or indirectly through one or more tiers of pass-through entities, in the pass-through entity that owns real property (that is, the taxpayer becomes an investor in the entity that owns the real property).
The pass-through entity that owns the real property contributes an easement on such real property to a qualified organization and treats the easement as a conservation easement. A conservation easement is defined in these proposed regulations (in proposed § 1.6011-9(c)(2)) as a restriction, exclusively for conservation purposes, granted in perpetuity (per the relevant subsections of section 170), on the use that may be made of specified real property.
The pass-through entity allocates, directly or through one or more tiers of pass-through entities, a charitable contribution deduction to the taxpayer.
The taxpayer reports on the taxpayer's Federal income tax return a charitable contribution deduction with respect to the conservation easement.
These proposed regulations include three rules to address potential avoidance of the 2.5 times rule. First, to prevent promoters from circumventing the 2.5 times rule by having promotional materials contain language that is ambiguous as to the amount of the potential charitable deduction, the proposed regulations provide that the highest deduction amount stated or implied in the promotional materials, taken as a whole, applies. Thus, if the promotional materials suggest a range of possible charitable contribution deduction amounts, the highest suggested deduction amount determines whether the 2.5 times rule is met. Similarly, if one piece of promotional materials (for example, an appraisal or oral statement) suggests a higher charitable contribution deduction amount than do other promotional materials, then the highest suggested charitable contribution deduction amount will determine whether the 2.5 times rule is met.
Second, the proposed regulations include a rebuttable presumption deeming the 2.5 times rule to be met if (i) the pass-through entity donates a conservation easement within three years following taxpayer's investment in the pass-through entity, (ii) the pass-through entity allocates a charitable contribution deduction to the taxpayer that equals or exceeds two and one-half times the amount of the taxpayer's investment, and (iii) the taxpayer claims a deduction that equals or exceeds two and one-half times the amount of the taxpayer's investment. This presumption is intended to address taxpayers and promoters who may not be forthcoming about the content or receipt of the promotional materials (as broadly defined under the proposed regulations). By the fact that the taxpayer claimed a charitable contribution deduction that equals or exceeds an amount that is two and one-half times the amount of their investment in the pass-through entity, the Treasury Department and the IRS will presume that the taxpayer received promotional materials that offered investors the possibility of being allocated a charitable contribution deduction that equals or exceeds an amount that is two and one-half times the amount of the taxpayer's investment in the pass-through entity. The presumption may be rebutted if the taxpayer establishes to the satisfaction of the Commissioner that none of the promotional materials contained a suggestion or implication that investors might receive a charitable contribution deduction that equals or exceeds an amount that is two and one-half times the amount of their investment in the pass-through entity. The Treasury
Finally, to prevent taxpayers from investing excess amounts in the pass-through entity to avoid meeting the 2.5 times rule, the proposed regulations contain an “anti-stuffing” rule. The anti-stuffing rule provides that the amount of a taxpayer's investment in the pass-through entity for purposes of determining application of the 2.5 times rule is limited to the portion of the taxpayer's investment that is attributable to the portion of the real property on which a conservation easement is placed and that produces the charitable contribution deduction described in paragraph (b)(3) of this section. For example, if a portion of the taxpayer's investment in the pass-through entity is attributable to property held directly or indirectly by the pass-through entity other than the real property on which a conservation easement is placed (including any other real property, cash, cash equivalents, digital assets, marketable securities, or other assets), that portion of the taxpayer's investment is not attributable to the portion of the real property on which a conservation easement is placed for purposes of the 2.5 times rule. The proposed regulations include an example illustrating the application of this rule.
Whether a taxpayer has participated in the listed transaction described in proposed § 1.6011-9(b) is determined under § 1.6011-4(c)(3)(i)(A). Participants include, but are not limited to, an owner of a pass-through entity, the pass-through entity (any tier, if multiple tiers are involved in the transaction), or any other taxpayer whose tax return reflects tax consequences or a tax strategy described in these proposed regulations. The proposed regulations provide, consistent with Notice 2017-10, that a qualified organization to which a syndicated conservation easement described in proposed § 1.6011-9(b) is donated is not treated as a participant under § 1.6011-4(c)(3)(i)(A) to the listed transaction described in these proposed regulations.
Material advisors, including promoters, appraisers and return preparers who make a tax statement with respect to transactions described in proposed § 1.6011-9(b), have disclosure and list maintenance obligations under sections 6111 and 6112.
The proposed regulations provide, consistent with Notice 2017-10, that a qualified organization
While some land trusts facilitate syndicated conservation easement transactions that the land trusts know, or have reason to know, are abusive, other land trusts take affirmative steps to avoid participating in abusive transactions. For example, some land trusts, when engaging in transactions with pass-through entities of unrelated parties, require a donor's appraisal and will decline to participate in any transaction in which, among other things: (i) the appraisal indicates an increase in value of more than two and one-half times the basis in the property; (ii) the easement or property is donated within 36 months of the pass-through entity's acquisition of the property; and (iii) the value of the donation (not the deduction) is $1 million or greater.
The Treasury Department and the IRS request comments on specific ways that qualified organizations can engage in due diligence to avoid entering into abusive syndicated conservation easement transactions described in these proposed regulations. For example: what questions should qualified organizations ask donors to avoid entering into a syndicated conservation easement transaction described in these proposed regulations; when is the qualified organization best positioned to make the inquiries; and what written information or materials could the donor provide to the qualified organization to ensure the qualified organization will not be participating in an inappropriate transaction?
Tax-exempt entities that facilitate abusive syndicated conservation easement transactions described in these proposed regulations do so by reason of their tax-exempt, tax-indifferent, or tax-favored status. Thus, if the final regulations were to eliminate the section 4965 carve-out, a qualified organization that accepts a syndicated conservation easement described in these proposed regulations would be subject to the section 4965 excise tax. However, if the qualified organization did not know, or have reason to know, that the contribution of the easement was part of a syndicated conservation
Conversely, if the qualified organization knows or has reason to know (under the rules discussed in Part IV.A. of the Background section of this preamble) that a contribution of an easement is part of a syndicated conservation easement transaction described in these proposed regulations, the qualified organization would be subject to the increased section 4965 entity-level tax provided in section 4965(b)(1)(B). In addition, any entity manager who approves or otherwise causes the qualified organization to accept the contribution of an easement that the entity manager knows or has reason to know is part of a syndicated conservation easement transaction described in these proposed regulations would be subject to the $20,000 tax imposed by section 4965(a)(2).
The Treasury Department and the IRS request comments on eliminating the section 4965 carve-out in final regulations, including whether there are specific situations in which a qualified organization should or should not be considered to know or have reason to know that a conservation easement contribution is part of a syndicated conservation easement transaction described in these proposed regulations.
As described in Part IV.A. of the Background section of this preamble, § 53.4965-4(b) provides that the Secretary can identify tax-exempt entities that will not be treated as parties to a prohibited tax shelter transaction in published guidance by type, class, or role. As an alternative to eliminating the section 4965 carve-out in final regulations, the Treasury Department and the IRS are considering whether to include a more limited carve-out in the final regulations. Such a limited carve-out could provide, for example, that a tax-exempt entity that conducted an adequate amount of due diligence before entering into a transaction is not treated as a party to a syndicated conservation easement transaction.
The Treasury Department and the IRS request comments on what would constitute adequate due diligence to warrant relieving a tax-exempt entity from potential liability for the section 4965 excise tax and what additional safeguards might be needed. For example, the Treasury Department and the IRS request comments on whether, if final regulations include a more limited carve-out, the carve-out should provide relief only for organizations that have not previously been involved
As noted in Part IV.A. of the Background section of this preamble, the section 4965 excise tax is based on an entity's net income attributable to the prohibited tax shelter transaction or proceeds received by the entity that are attributable to a prohibited tax shelter transaction. The Treasury Department and the IRS request comments on determining the amount of net income and proceeds attributable to the prohibited tax shelter transaction in the context of a syndicated conservation easement transaction, including what gross income (if any) typically is derived from (and what deductions are attributable to) the transaction; the value of the gift or contribution that would be treated as proceeds for purposes of section 4965; and whether the IRS should designate additional amounts as proceeds for section 4965 purposes, as permitted by § 53.4965-8.
In addition to the specific comment requests above, the Treasury Department and the IRS request comments regarding all aspects of the potential elimination or limitation of the section 4965 carve-out in final regulations, including any alternative ways to deter tax-exempt entities from acting as parties to syndicated conservation easement transactions and whether any additional guidance is needed on the application of section 4965 in the syndicated conservation easement context.
Participants required to disclose these transactions under § 1.6011-4 who fail to do so are subject to penalties under section 6707A. Participants required to disclose these transactions under § 1.6011-4 who fail to do so are also subject to an extended period of limitations under section 6501(c)(10). Material advisors required to disclose these transactions under section 6111 who fail to do so are subject to penalties under section 6707. Material advisors required to maintain lists of investors under section 6112 who fail to do so (or who fail to provide such lists when requested by the IRS) are subject to penalties under section 6708(a). In addition, the IRS may impose other penalties on persons involved in these transactions or substantially similar transactions, including accuracy-related penalties under section 6662 or section 6662A, the section 6694 penalty for understatements of a taxpayer's liability by a tax return preparer, the section 6695A penalty for certain valuation misstatements attributable to incorrect appraisals, the section 6700 penalty for promoting abusive tax shelters, and the section 6701 penalty for aiding and abetting understatement of tax liability.
Taxpayers who have filed a tax return (including an amended return (or Administrative Adjustment Request (AAR) for certain partnerships)) reflecting their participation in these transactions prior to [DATE OF PUBLICATION OF FINAL RULE IN THE
In addition, material advisors have disclosure requirements with regard to transactions occurring in prior years. However, notwithstanding § 301.6111-3(b)(4)(i) and (iii), material advisors are required to disclose only if they have made a tax statement on or after [DATE
Proposed § 1.6011-9(a) would identify syndicated conservation easement transactions described in proposed § 1.6011-9(b) as listed transactions effective as of the date of publication in the
These proposed regulations do not revoke or modify Notice 2017-10.
The collection of information contained in these proposed regulations is reflected in the collection of information for Forms 8886 and 8918 that have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507(c)) under control numbers 1545-1800 and 1545-0865.
To the extent there is a change in burden as a result of these regulations, the change in burden will be reflected in the updated burden estimates for the Forms 8886 and 8918. The requirement to maintain records to substantiate information on Forms 8886 and 8918 is already contained in the burden associated with the control number for the forms and remains unchanged.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
The Secretary of the Treasury hereby certifies that the proposed regulations will not have a significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6). As previously explained, the basis for these proposed regulations is Notice 2017-10, 2017-4 I.R.B. 544 (modified by Notice 2017-29, 2017-20 I.R.B. 1243, and Notice 2017-58, 2017-42 I.R.B. 326). The following chart sets forth the gross receipts of respondents to Notice 2017-10 that report federal tax information using Form 1065 (U.S. Return of Partnership Income) and Form 1120-S (U.S. Income Tax Return for an S Corporation):
This chart shows that the majority of respondents to Notice 2017-10 reported gross receipts under $5 million. Even assuming that these respondents constitute a substantial number of small entities, the proposed regulations will not have a significant economic impact on these entities because the proposed regulations implement sections 6111 and 6112 and § 1.6011-4 by specifying the manner in which and time at which an identified transaction must be reported. Accordingly, because the proposed regulations are limited in scope to time and manner of information reporting and definitional information, the economic impact of the proposal is expected to be minimal. Further, the Treasury Department and the IRS expect that the reporting burden is low; the information sought is necessary for regular annual return preparation and ordinary recordkeeping. The estimated burden for any taxpayer required to file Form 8886 is approximately 10 hours, 16 minutes for recordkeeping, 4 hours, 50 minutes for learning about the law or the form, and 6 hours, 25 minutes for preparing, copying, assembling, and sending the form to the IRS. The IRS's Research, Applied Analytics, and Statistics division estimates that the appropriate wage rate for this set of taxpayers is $98.87 (2021 dollars) per hour. Thus, it is estimated that a respondent will incur costs of approximately $2,127.00 per filing. Disclosures received to date by the Treasury Department and the IRS in response to the reporting requirements of Notice 2017-10 indicate that this small amount will not pose any significant economic impact for those taxpayers now required to disclose under the proposed regulations.
For the reasons stated, a regulatory flexibility analysis under the Regulatory Flexibility Act is not required. The Treasury Department and the IRS invite comments on the impact of the proposed regulations on small entities. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for the Office of Advocacy of the Small Business Administration for comment on its impact on small business.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a state, local, or tribal government, in the aggregate, or by the private sector, of $100 million (updated annually for inflation). This proposed rule does not include any Federal mandate that may result in expenditures by state, local, or tribal governments, or by the private sector in excess of that threshold.
Executive Order 13132 (Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on state and local governments, and is not required by statute, or preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This proposed rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt state law within the meaning of the Executive Order.
The Administrator of the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, has determined that this proposed rule is not a significant regulatory action, as that term is defined in section 3(f) of Executive Order 12866. Therefore, OIRA has not reviewed this proposed rule pursuant to section 6(a)(3)(A) of Executive Order 12866 and the April 11, 2018, Memorandum of Agreement between the Treasury Department and the Office of Management and Budget (OMB).
Guidance cited in this preamble is published in the Internal Revenue Bulletin and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at
The principal author of these proposed regulations is Theresa Melchiorre, Office of Associate Chief Counsel (Income Tax & Accounting).
Income Taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.6011-9 also issued under 26 U.S.C. 6001 and 26 U.S.C. 6011. * * *
(a)
(b)
(1) A taxpayer receives promotional materials that offer investors in a pass-through entity the possibility of being allocated a charitable contribution deduction that equals or exceeds an amount that is two and one-half times the amount of the taxpayer's investment in the pass-through entity as determined under paragraph (d) of this section (2.5 times rule);
(2) The taxpayer acquires an interest directly, or indirectly through one or more tiers of pass-through entities, in the pass-through entity that owns real property (that is, becomes an investor in the entity);
(3) The pass-through entity that owns the real property contributes an easement on such real property, which it treats as a conservation easement within the meaning of paragraph (c)(2) of this section, to a qualified organization and allocates, directly or through one or more tiers of pass-through entities, a charitable contribution deduction to the taxpayer; and
(4) The taxpayer claims a charitable contribution deduction with respect to the conservation easement on the taxpayer's Federal income tax return.
(c)
(1)
(2)
(3)
(4)
(5) Qualified organization. The term
(6)
(d)
(2)
(3)
(4)
(ii)
(e)
(2)
(i) An owner of a pass-through entity;
(ii) A pass-through entity;
(iii) Any other taxpayer whose Federal income tax return reflects tax consequences or a tax strategy arising from the syndicated conservation easement transaction described in paragraph (b) of this section.
(3)
(f)
(g)
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to revise its regulation that governs the program that furnishes caskets and urns for the burial of remains of veterans with no known next-of-kin (NOK) where sufficient resources are not available for this purpose. First, VA proposes to implement the Charles Duncan Buried with Honor Act of 2016 that expanded the casket and urn authority to apply to eligible veteran burials in State and Tribal cemeteries that received a VA cemetery grant. Further, VA proposes to issue flat-rate allowances for caskets and urns rather than calculate the average cost for those items on an annual basis. Using flat-rate allowances would promote consistency and efficiency in the administration of this program. Additionally, we propose an update to the casket specifications based on feedback from funeral directors and other funeral industry professionals. Finally, VA proposes to amend the regulation by eliminating the retroactive reimbursement provisions. This change would reflect the fact that these provisions are no longer needed because the relevant applicability period has passed.
Comments must be received by VA on or before February 6, 2023.
Comments must be submitted through
Daniel Catron, Supervisory Program Analyst, National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420;
Section 2306(f) of title 38, United States Code (U.S.C.), authorizes VA to furnish a casket or urn for burial of the unclaimed remains of veterans for whom VA cannot identify the NOK and determines that sufficient resources for the furnishing of a casket or urn for burial are not available. In 2016, Congress authorized an expansion of the casket and urn program to include VA grant-funded State and Tribal veterans' cemeteries. Therefore, burial of an eligible veteran must take place in a VA national cemetery or a veterans' cemetery of a State or Tribal Organization for which VA has provided a grant under 38 U.S.C. 2408. VA proposes to amend its regulations in 38 CFR 38.628 to reflect the expanded scope of the program. To implement this change, we propose to revise the introductory text of paragraph (a) and the text of paragraph (c)(1) of § 38.628.
Consistent with other VA burial-related benefits, VA proposes to pay flat-rate allowances to individuals or entities that purchase caskets and urns for burial of unclaimed remains of veterans who die without NOK and sufficient resources for burial. Under current § 38.628(a), VA will reimburse any individual or entity for the actual cost of a casket or urn purchased for an eligible veteran, and under § 38.628(d), reimbursements will be capped by the average market cost for a 20-gauge metal casket or a durable urn during the fiscal year preceding the calendar year of the claim. In this proposed rule, VA would replace reimbursements based on actual costs capped by annual average market prices with flat-rate allowances that are based on historical payment averages.
Since the inception of the casket and urn reimbursement program eight years ago, VA has received feedback from funeral homes expressing dissatisfaction with VA's annual calculations of the average market costs, which many have stated do not reflect what they normally charge private individuals and entities, because the calculations do not include commercial mark-ups for caskets or urns. VA appreciates this input. We note that the purpose of the casket and urn program is to offset costs for individuals and entities that bring eligible veterans to VA national and grant-funded cemeteries, and not to purchase caskets or urns from funeral homes at the same rates funeral homes would charge in connection with commercial funerals or to reimburse the full cost of caskets and urns that may far exceed the regulatory standards. In order to avoid confusion regarding the “actual cost” standard, VA clarified the regulation by requiring that actual costs be shown by invoices reflecting the purchase price of the casket or urn purchased by the individual or entity requesting reimbursement.
Funeral homes have also expressed a lack of confidence in VA's annual average market cost calculations, given the wide variance in the maximum reimbursement rates from year to year. VA acknowledges the variations in the calculated maximum rates do not reflect actual variations in market costs over the same period, which have remained relatively static. Since the program began, the maximum reimbursement rate based on average market cost for a casket has fluctuated 96.8 percent, with a high of $2,681 and a low of $1,362. The maximum reimbursement rate based on average market cost for an urn has been as high as $244 and as low as $120, producing a 103.3-percent variance.
VA is also concerned that reimbursement at the purchase price as shown by an invoice has encouraged certain individuals and entities to attempt to inflate reimbursements. VA has frequently received invoices showing purchase prices equal to the year's maximum reimbursement rate. Because those rates were based on cost averages of market prices from the previous fiscal year, VA questioned the validity of those invoices. Actual fraud in these cases, however, is difficult to prove and costly for the government to prosecute.
After VA clarified the regulatory standard requiring an invoice showing purchase prices and began challenging questionable invoices, however, program utilization decreased.
In response to these issues, VA proposes to cease the annual calculation and payment of reimbursement rates that vary from year to year, which have created confusion and caused lack of confidence among those who participate in the program. VA believes those issues would be eliminated by the proposed payment of flat-rate allowances for eligible claims. This would be a more consistent and predictable method of offsetting the costs of caskets and urns purchased for the dignified interment of unclaimed veterans' remains.
To effectuate the flat-rate allowances, VA proposes to amend § 38.628 to remove all references to “reimburse” and “reimbursement” and replace them with “allowance”. These references would appear in the section heading of the regulation, the introductory text of paragraph (a), the introductory text of paragraph (c), and paragraph (d). We also propose to remove the text referring to actual cost in paragraph (a), and we propose to clarify in paragraph (a) that the amount of the allowances would be established in paragraph (d). As shown in proposed paragraph (e), VA would, on an annual basis, make cost-of-living adjustments for the flat-rate allowances using the Consumer Price Index, a methodology used in similar VA monetary allowances. Consistent with the Veterans Benefits Administration (VBA) cost increases for monetary allowances under 38 U.S.C. 2303, from June to June each year, the National Cemetery Administration (NCA) would apply the percentage increase (rounded to the nearest dollar) for caskets and urns. Use of VBA's cost-of-living increase analysis would promote consistency across VA benefit programs and ensure the casket and urn allowances meet current costs, to the extent practicable.
For urns, VA proposes to use historical average payments made by VA, which were based on invoices showing the purchase prices of urns meeting the regulatory specifications. VA reviewed maximum reimbursement rates for urns applicable for calendar years 2015 ($172), 2016 ($244), 2017 ($163), 2018 ($169), 2019 ($162), 2020 ($149), and 2021 ($145), which equates to an average annual reimbursement cap of $172 during that period. VA also found that the average actual reimbursement rate during that period was $138, which was the same as the average actual cost, shown by invoices, for a total of 77 urn claims. This payment average based on invoice price is lower than the $172 average of annual reimbursement caps calculated from 2015 to 2021. We note that during that time frame, based on VA historical payment data, invoice prices for urns that met § 38.628(c)(5)(ii) specifications did not have any significant increases or decreases. A flat rate allowance based on historical invoice payment data, which remained relatively static when compared to previously calculated maximum reimbursement rates based on market price cost averages that changed more significantly from year to year, is a more logical means of administering this benefit. Additionally, we believe this standard would encourage potential claimants to choose urns that meet the regulatory standards priced within the predictable and consistent flat-rate reimbursement amount. Based on this information, we propose the flat-rate allowance in paragraph (d) for urns to be $138, which is reflective of the average VA reimbursement based on actual cost from 2015 to 2021 for urns meeting regulatory specifications. And, as noted previously, VA would annually assess the allowance for cost-of-living increases.
For caskets, VA proposes to revise the definition of a “casket” for allowance purposes in § 38.628(c)(5)(i) by removing the requirement for a gasketed seal. Based on input from funeral homes and other funeral industry professionals, the gasketed seal is not necessary, except when remains are transported by air in pressurized settings. Most claimants present casketed remains for interment that are locally transported by land from funeral homes, rendering the gasketed seal unnecessary. Also, gasketed caskets are more costly than non-gasketed caskets that still serve the purpose of safely containing human remains.
Similar to VA's analysis supporting the proposed flat-rate urn allowance, VA considered historical payment data for caskets that met regulatory
Finally, VA proposes to amend the regulation by eliminating the retroactive reimbursement provisions by removing paragraph (e) from § 38.628. Current paragraph (e) allows for retroactive reimbursement for caskets or urns purchased before July 2, 2014, for burial of the remains of a veteran who died on or after January 10, 2014, to be paid at the calendar year 2015 rates. This provision was included because the casket and urn authority took effect on January 10, 2014, before the regulations were finalized on April 13, 2015. However, the paragraph is no longer necessary because the relevant time periods have passed. VA would pay the allowances that apply based on the date of claim for reimbursement.
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 not 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, because the number of claims and the amounts involved are expected to be small. We estimate the average cost of a burial receptacle that meets regulatory specifications under this rule would be $1,199 for caskets and $138 for urns in 2023. We also estimate that the total number of allowances for 2023 would be 259 for caskets and 18 for urns. Because the proposed rulemaking would provide for issuance of an allowance, the individual or entity purchasing the burial receptacle would only be entitled to recoup the allowance rate, regardless of the actual purchase price. The purpose of the casket and urn reimbursement is to help offset a claimant's cost for bringing unclaimed veterans' remains to burial in a VA national or grant-funded cemetery. Generally, because the allowance is calculated based on historical average payments from qualifying purchase prices, this would result in the individual or entity avoiding a significant financial loss or gain for having made the purchase.
Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
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 an 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.
Although this action contains provisions constituting collections of information at 38 CFR 38.628, under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or revised collections of information are associated with this proposed rule. The information collection for 38 CFR 38.628 is currently approved by the Office of Management and Budget (OMB) and has been assigned OMB control number 2900-0799.
Administrative practice and procedure, Cemeteries, Claims, Veterans.
Denis McDonough, Secretary of Veterans Affairs, approved this document on November 30, 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 38 as set forth below:
38 U.S.C. 107, 501, 512, 2306, 2400, 2402, 2403, 2404, 2407, 2408, 2411, 7105.
(a) VA will issue a flat-rate allowance, as established in paragraph (d) of this section, to any individual or entity for a casket or urn, purchased by the individual or entity for the burial in a national cemetery or in a veterans' cemetery of a State or Tribal Organization that has received a grant under 38 U.S.C. 2408, of an eligible deceased veteran for whom VA:
(c) An individual or entity may request an allowance from VA under paragraph (a) of this section by completing and submitting VA Form 40-10088 and supporting documentation, in accordance with the instructions on the form. Prior to approving issuance of an allowance, VA must find all of the following:
(1) The veteran is eligible for burial in a VA national cemetery or in a veterans' cemetery of a State or Tribal Organization that has received a grant under 38 U.S.C. 2408;
(5) * * *
(i) Caskets must be of metal construction of at least 20-gauge thickness, designed for containing human remains, sufficient to contain the remains of the deceased veteran, and include external fixed rails or swing arm handles.
(d) The allowance for a claim received in any calendar year under paragraph (a) of this section is $1,199.00 for a metal casket and $138.00 for an urn of durable material.
(e) VA will make cost-of-living adjustments for the flat-rate casket and urn allowances using the Consumer Price Index (CPI). Each fiscal year, VA will provide a percentage increase (rounded to the nearest dollar) in the casket and urn flat-rate allowances equal to the percentage by which the CPI (all items, United States city average) for the 12-month period (June to June) preceding the beginning of the fiscal year for which the percentage increase is made exceeds the CPI for the 12-month period preceding the 12-month period described in this paragraph (e). VA will only make cost-of-living increases to the flat rate allowances when the CPI has increased.
Federal Communications Commission.
Proposed rule.
The Federal Communications Commission (FCC or Commission) proposes to modify or eliminate certain provisions of its Video Relay Service (VRS) rules. Specifically, the Commission proposes to: increase from 50% to 80% the portion of a VRS provider's monthly minutes that may be handled by Communications Assistants (CAs) working from home; reduce or eliminate the three-year experience rule for CAs working from home, and allow VRS providers to use contract CAs for 30% of the providers' monthly call minutes; and allow Telecommunications Relay Services (TRS) Fund compensation of calls placed by registered VRS users to the United States from outside the country, for up to one year after leaving the country, as long as they notify their provider of such travel at any time before placing the first such call. The Commission also requests comment on whether any other at-home VRS rules should be modified.
Comments are due January 9, 2023. Reply comments are due February 6, 2023.
You may submit comments, identified by CG Docket Nos. 03-123, 10-51, and 13-24, by either of the following methods:
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process,
William Wallace, Disability Rights Office, Consumer and Governmental Affairs Bureau, at 202-418-2716, or
This is a summary of the Commission's Notice of Proposed Rulemaking, document FCC 22-51, adopted on June 28, 2022, released on June 30, 2022, in CG Docket Nos. 03-123, 10-51, and 13-24. The full text of document FCC 22-51 is available for public inspection and copying via the Commission's Electronic Comment Filing System (ECFS).
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
1. Under section 225 of the Communications Act of 1934, as amended (the Act), 47 U.S.C. 225, the Commission must ensure that TRS is available “to the extent possible and in the most efficient manner” to persons “in the United States” who are deaf, hard of hearing, or deafblind, or who have speech disabilities, so that they can communicate by telephone in a manner that is functionally equivalent to voice communication service. VRS, a form of TRS, enables people with hearing or speech disabilities who use sign language to make telephone calls over a broadband connection using a video communication device. The video link allows a CA to view and interpret the party's signed conversation and relay the conversation back and forth with a voice caller. Providers of VRS are compensated from the TRS Fund for service provided in accordance with applicable rules. To be eligible to receive payment from the TRS Fund, a VRS provider must be granted certification by the Commission. To allow TRS users to choose among competing service providers, the Commission has certified multiple firms to offer each of these services.
2.
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4.
5.
6. VRS providers report an increasing shortage of ASL interpreters able and willing to work as VRS CAs. This shortage, which appears to have begun before the onset of the COVID-19 pandemic, has been aggravated by the pandemic but appears likely to continue well beyond its end. In light of these developments, the Commission proposes to eliminate or modify certain requirements that may be no longer needed in their current form and that may unnecessarily restrict the available pool of ASL interpreters who are able and willing to work as VRS CAs.
7.
8. The Commission seeks comment on this proposal, including the assumptions above and the costs, risks, and benefits. If the cap is permanently raised, would VRS providers maintain or increase the percentage of CAs working at home? What factors do providers consider (apart from public health considerations related to the pandemic) in deciding whether to maintain or increase reliance on CAs working from home? For example, do providers consider primarily the opportunity to save costs, or to improve or maintain service quality,
9. What are the possible adverse effects, if any, of raising the cap? How is the quality of interpreting affected, if at all, when calls are handled by CAs working at home? Are consumers able to discern that a call is being handled by a CA working at home? If so, what differences, if any, do consumers detect in the quality of at-home versus call-center calls? The Commission also invites VRS providers to share the results of any analyses they have conducted regarding differences, if any, in call quality or complaint frequency for call-center and teleworking CAs.
10. What specific concerns, if any, would be raised by permanently raising the cap, with respect to providers' ability to serve demand efficiently, protect the confidentiality of conversations, and prevent waste, fraud, and abuse? What technical, operational, training, or other challenges have been faced by providers, and how have they responded to ensure that service quality, confidentiality, and other requirements do not suffer? What specific lessons have VRS providers learned about the advantages, disadvantages, and challenges of having calls handled by CAs working at home?
11. The Commission also seeks information on how providers select and train CAs allowed to work at home. Do providers require CAs to work in call centers if one is available within commuting distance and there is no valid reason why the CA must work at home? Or is each CA allowed to choose where to work, if qualified to work at home? Should the Commission impose any additional training or other requirements in connection with increased use of CAs working at home or other proposals in the NPRM?
12. The Commission also seeks comment, supported by quantitative data where possible, on whether 80%—or a different percentage—is an appropriate limit for monthly at-home minutes. Alternatively, should the Commission eliminate the cap altogether, and rely solely on VRS providers' business judgement to determine to what extent it is appropriate to rely on at-home CAs? Is a minimum level of call center staffing necessary to ensure continuity of service? Alternatively, is such a minimum necessary to ensure that certain types of calls are handled appropriately—
13.
14. The Commission also believes that competition among VRS providers will help ensure that VRS providers make appropriate decisions regarding the qualifications of CAs they allow to work at home. Pursuant to the Commission's longstanding policy to allow VRS users to choose among multiple providers, consumers have the opportunity to choose the VRS provider that offers the highest quality of service. Therefore, it appears that VRS providers have a substantial incentive to ensure that any CA allowed to work at home is qualified to do so. The Commission seeks comment on its proposal and these underlying assumptions. What are the costs and benefits of maintaining a three-year experience requirement for at-home CAs? How should the
15. The Commission seeks comment on alternative ways to modify the rule. For example, should the Commission retain an experience requirement? Would one or two years of interpreting experience meet the goal of ensuring effective interpretation without direct supervision? Is it necessary for initial VRS training to be conducted at a call center? Should CAs have logged a certain number of minutes of supervised, call-center-based VRS call handling before being allowed to work at home? Or are the remaining requirements in § 64.604(b)(8)(ii)(A) of the Commission's rules sufficient to provide assurance that a VRS CA can work effectively without in-person supervision? Are there any other conditions that may be warranted to support continued high quality VRS service in connection with any of the Commission's proposals?
16. The Commission seeks comment on whether other changes should be made in the at-home VRS call-handling rules, based on experience over the last two years. Commenters should identify any current rule that they think should be modified, explain in detail why such modifications would advance the purposes of section 225 of the Act, and provide factual support for their recommendations based on actual experience.
17.
18. The Commission believes that its proposed modification of the current restriction on contracting for interpretation services (which would not change the rule's restriction on contracting for call center functions) will help alleviate the ongoing shortage of VRS CAs. The restriction on contracting for interpretation services has been waived on an emergency basis during the COVID-19 pandemic, but the shortage of VRS CAs, while aggravated by the pandemic, is likely to outlast it.
19. The record suggests that permanently allowing VRS providers to contract for interpretation services will enable providers to continue retaining the services of many qualified ASL interpreters who prefer not to sign up as VRS provider employees. According to Convo, many of the VRS interpreters it hires through a contractor only want a short assignment or want to supplement their community-interpreting income by working limited shifts as a VRS CA. Convo also asserts that contract CAs can help providers respond to short term fluctuations in both demand and CA availability, for example, when a weather event causes both a spike in traffic and the closing of a call center. The Commission believes that VRS providers and users can benefit from the flexibility that contracting allows providers during short-time fluctuations in demand. Does allowing VRS providers to contract for up to 30% of their monthly minutes provide sufficient flexibility for that purpose? The Commission seeks comment on its proposal, these underlying assumptions, and the costs and benefits of allowing VRS providers to contract for interpretation services from uncertified entities.
20. The Commission also seeks comment on any risks of harm currently posed by the use of contract CAs. Some commenters on the Convo Petition raised the concern that relaxing the rule could reinstate incentives and opportunities for fraud and abuse by VRS providers. Have there been changes in the VRS industry in the last 10 years that reduce these concerns? Are other measures instituted by the Commission sufficient to prevent fraud and abuse? Since April 2020, when the Bureau initially waived the prohibition on contracting for CA services as part of the Commission's pandemic emergency measures, has there been any indication of increased waste, fraud, and abuse? Would allowing VRS providers to contract for interpretation services on a permanent basis run the risk of changing providers' incentives regarding the making of VRS calls that would not otherwise be made?
21. The Commission also seeks comment on what conditions it could impose to limit any risk of waste, fraud, and abuse that may result from the use of contract CAs? In adopting the contracting restriction, the Commission explained that the proliferation of ineligible VRS providers prior to 2011 had frustrated its ability to exercise effective oversight of the VRS program. Should organizations contracting with a VRS provider for interpretation services be required to register with the Commission and agree to direct oversight, including audits, inspection of records, etc.? Alternatively, should the Commission require the VRS provider to expressly accept responsibility for any fraud or abuse committed by a contracting CA or agency? In addition, what records should the Commission require VRS providers to keep regarding transactions with and services provided by contracting CAs or agencies, in addition to copies of the contracts themselves? What information about the use of contract CAs should be included in VRS providers' annual reports? For example, should the Commission require VRS providers to identify each entity with which it has contracted for interpretation services and the number of conversation minutes handled by each? Should the Commission allow contract CAs to be stationed outside the United States?
22. The Commission also seeks comment on permissible payment arrangements for contract CAs. For example, the Commission's current rules prohibit VRS providers from providing compensation or other benefits to CAs in any manner that is based upon the number of VRS minutes or calls that the CA relays, either individually or as part of a group. Is this rule sufficient—and sufficiently clear—to prevent incentives to generate minutes that would not otherwise have been made by individuals using VRS, artificially lengthen the time of a call, or create fictional calls where no relaying takes place? To limit incentives for fraud and abuse, should the Commission expressly require VRS providers to pay contract interpreters or agencies based on hours of availability, rather than call or session minutes? Are there other safeguards that the Commission should require in contracts with contracting CAs or agencies?
23. Is 30% an appropriate cap on the number of minutes handled by contract interpreters? Would a different percentage cap strike a more appropriate balance between the need for provider flexibility and the risk of waste, fraud, and abuse? Should the Commission direct the Consumer and Governmental Affairs Bureau to conduct a review of the level of the cap,
24. To enable enforcement of the cap and facilitate review of the need for or possible changes in the cap, the Commission proposes to require VRS providers to identify, in their monthly call reports, those CAs that are working on a contract basis. The Commission seeks comment on this proposal.
25. The Commission also seeks comment on how its rules on at-home call-handling should be amended to address the use of contract CAs to work from home workstations. Should contract CAs be allowed to work from home? What amendments to the Commission's rules, if any, would be needed to ensure compliance with the Commission's at-home call-handling requirements? Because contract CAs are not employees of the VRS provider, should VRS providers be required to obtain written assurance from contract CAs that they will comply with each relevant requirement if they are allowed to work from home?
26.
27. The Commission's rules currently prohibit TRS Fund compensation for any VRS calls placed to the United States from foreign IP addresses, except calls made by a U.S. resident who has pre-registered with his or her default provider prior to leaving the United States, during specified periods of time while on travel and from specified regions of travel, for which there is an accurate means of verifying the identity and location of such callers. In adopting this rule, the Commission stated, in a footnote, that “specified periods of time” was not intended to mean extended periods of time, which it defined as more than four weeks.
28. In the Declaratory Ruling in document FCC 22-51, the Commission finds that interpreting this exception as limited to periods of no longer than four weeks imposes unnecessary restrictions on registered VRS users who are traveling internationally. That interpretation was adopted at a time when the VRS program was plagued by fraud and abuse, much of which involved international calls placed to the United States from foreign IP addresses. Since then, however, the anti-fraud measures adopted by the Commission appear to have been effective in suppressing illegal VRS calling. Further, in 2019, the Commission implemented the User Database, in which the identity of each registered VRS user is entered and verified in a central database. The vetting of each VRS user by the TRS Fund administrator provides additional assurance against payment of compensation for fraudulent VRS calls, including calls from unknown users located outside the United States.
29. The Commission proposes to amend its rules to clarify that calls originating from international IP addresses may be compensated if placed within one year after a user leaves the United States. The proposed revision would: relax the current preregistration requirement to allow notification to the user's default VRS provider at any time prior to placing such calls; and clarify that such notifications may specify travel periods for up to one year. Under this proposed modification, the content of the required notification must include the specific regions of travel, the date of departure from the United States, and the approximate date when the individual intends to return to the United States. The Commission seeks comment on the proposal and its costs and benefits. Does the proposed revision, in conjunction with the existing User Database rules and other fraud prevention measures, sufficiently address the risk of waste, fraud and abuse that the current rule was intended to prevent?
30. The Commission also notes that as a result of the pandemic waiver orders, the prohibition on calling the United States from abroad has been largely waived. Is there evidence of waste, fraud, or abuse in international calling during that period? If so, does such evidence warrant changes to this proposal?
31.
32. The Commission seeks comment on codifying these determinations. Is one year an appropriate maximum duration? For example, is this period long enough to cover students studying abroad, employees on temporary work assignments abroad, or individuals on extended travel? Is a one-year limit, combined with other safeguards such as the User Database, an effective means of ensuring that the use of VRS by individuals located outside the United States is limited to U.S. residents who are only temporarily living abroad and have an intent to return to the United States?
33.
34.
35. Should the scope or conditions of this proposed exception be modified? For example, are there other categories of users who should be included in the exception? In the case of lengthy foreign assignments, how should providers (and indirectly the Fund administrator) be made aware of the status of such users—via an ad hoc notice from the user, from the relay official or other responsible individual specified in an enterprise registration,
36. As required by the Regulatory Flexibility Act of 1980, as amended, the Commission has prepared the Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this document. Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadline for comments provided in this document.
37.
38.
39.
40.
41. The Commission proposes to allow VRS providers to employ contract CAs and to permit contract CAs to handle up to 30% of a provider's total monthly call minutes. VRS providers may have to separately track call minutes handled by contract CAs. If a VRS provider employs contract CAs, it may be required to, upon request, make available to the Commission and the TRS Fund administrator written copies of such contracts. VRS providers who employ contract CAs also may be required to submit reports on such personnel at regular intervals.
42. The Commission proposes to allow VRS users to make calls to the United States from international locations for up to one year while on travel and require VRS users to notify their default VRS providers of their travel plans before they start making such calls. The Commission also proposes to allow federal employees, contractors, and their immediate family members to make VRS calls from international locations for the length of their service while stationed abroad plus up to an additional 90 days to allow for travel while returning to the United States after such individuals notify their default VRS provider of where they are stationed and the length of their service tour. New or modified reporting, recordkeeping, or other compliance obligations may be imposed on VRS providers in association with tracking VRS users while on international travel.
43.
44. The proposal to permit VRS providers to hire contract CAs is designed to increase the pool of American Sign Language interpreters available and willing to work as VRS CAs. Hiring contract CAs would be optional for VRS providers. Those VRS providers that choose to hire contract CAs may be subject to certain reporting, recordkeeping, and other obligations associated with the hiring of such personnel. The proposed requirements would apply equally to all VRS providers using contract CAs and are necessary to prevent waste, fraud, and abuse of the TRS Fund. To the extent there are differences in operating costs resulting from economies of scale, those costs are reflected in the different rate structures applicable to large and small VRS providers.
45. The proposal to modify from four weeks to one year the time period during which VRS users may make calls to the United States from international locations is designed to provide more flexibility to VRS users and bring the specified period of time in line with the Commission's updated interpretation of
46.
The Commission seeks comment on proposed rule amendments that may result in modified information collection requirements. If the Commission adopts any modified information collection requirements, the Commission will publish another notice in the
Individuals with disabilities, Telecommunications, Telecommunications relay services.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend Title 47 of the Code of Federal Regulations as follows:
47 U.S.C. 151, 152, 154, 201, 202, 217, 218, 220, 222, 225, 226, 227, 227b, 228, 251(a), 251(e), 254(k), 255, 262, 276, 403(b)(2)(B), (c), 616, 617, 620, 1401-1473, unless otherwise noted; Public Law 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.
(a) * * *
(7)
(i) VRS calls that originate from an international IP address will not be compensated, except in accordance with this section. For purposes of this section, an international IP address is defined as one that indicates that the individual initiating the call is located outside the United States and its territories.
(ii) A VRS provider may seek TRS Fund compensation for VRS calls placed to the United States by a United States resident who is a registered VRS user, if:
(A) Such calls are placed one year or less after the VRS user departs the United States; and
(B) At any time prior to placing such calls, the VRS user notifies the user's default provider of the specific region(s) of travel, the date of departure from the United States, and the intended date of return to the United States.
(iii) A registered VRS user may request approval from the Commission's Disability Rights Office for an extension of the one-year international calling period. Such request shall include a showing that the user's primary residence remains in the United States, even though the user will remain outside the United States longer than one year. Upon approval of such an extension, the user shall notify the user's default VRS provider of such change, and the provider may seek compensation for international calls placed by the user through the end of such extended return date.
(iv) A VRS provider may seek TRS Fund compensation for VRS calls placed to the United States, pursuant to an individual or enterprise VRS registration, by a United States resident who is a United States military or federal government employee or contractor temporarily stationed abroad, or an immediate family member of such employee or contractor, if:
(A) Such calls are placed either during the period of such foreign assignment or within 90 days after the end date of such foreign assignment; and
(B) At any time prior to placing such calls, the registered VRS user, or the Relay official or other responsible individual designated in an enterprise registration, notifies the default VRS provider of the specific regions of foreign assignment, the date of departure from the United States, and the intended end date of the foreign assignment, and that the user (or an immediate family member of the user) is a United States military or federal employee or contractor, and is temporarily stationed outside the United States. If the foreign assignment is extended, the registered VRS user, or the Relay official or other responsible individual designated in an enterprise registration, shall notify the default VRS provider of the new end date of such foreign assignment and of any change of the region where the user is stationed.
(C) For purposes of this section, an “immediate family member” is a parent, spouse, or child of a United States military or federal government employee or contractor.
(D) If the intended end date of the foreign assignment is not known as of the time of notification to the default VRS provider, the notification may specify one-year from the date of departure from the United States as the end date.
(b) * * *
(8) * * *
(i) * * *
(A) Eighty percent (80%) of a VRS provider's total minutes for which compensation is paid in that month; or
(B) Eighty percent (80%) of the provider's average projected monthly conversation minutes for the calendar year, according to the projections most recently filed with the TRS Fund administrator.
(ii) * * *
(A) Allow a CA to work at home only if the CA is a qualified interpreter who has the experience, skills, and knowledge necessary to effectively interpret VRS calls without in-person supervision, has learned the provider's protocols for at-home call handling, and understands and follows the TRS mandatory minimum standards set out in this section; and
(c) * * *
(5) * * *
(iii) * * *
(N) * * *
(
(
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
FMCSA is proposing to narrow the scope of regulations from which relief is provided automatically for motor carriers providing direct assistance when an emergency has been declared. Through the proposed changes, the Agency would ensure that the relief granted through emergency declarations is appropriate and tailored to the specifics of the circumstances and emergency being addressed. The Agency also proposes revisions to the process for extending an automatic emergency exemption where circumstances warrant.
Comments must be received on or before February 6, 2023.
You may submit comments identified by Docket Number FMCSA-2022-0028 using any of the following methods:
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•
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Ms. Kathryn Sinniger, Regulatory Law Division, Office of the Chief Counsel, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, (202) 570-8062,
FMCSA organizes this NPRM as follows:
If you submit a comment, please include the docket number for this NPRM (FMCSA-2022-0028), indicate the specific section of this document to which your 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 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.
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to the 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 the NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. FMCSA will treat such marked submissions as confidential under the Freedom of Information Act, and they will not be
To view any documents mentioned as being available in the docket, go to
DOT solicits comments from the public to better inform its regulatory process, in accordance with 5 U.S.C. 553(c). DOT posts these comments, without edit, including any personal information the commenter provides, to
Written comments and recommendations for the information collection discussed in this NPRM should be sent within 60 days of publication to the docket for this rulemaking, as indicated above in paragraph A. “Submitting Comments.”
Section 390.23 of title 49, Code of Federal Regulations (CFR), automatically creates a 30-day exemption from 49 CFR parts 390 through 399 when the President, a Governor, or FMCSA issues a declaration of an
Based on Agency subject matter expertise and input from States, affected localities, industry groups and others, FMCSA believes that most emergencies justify allowing carriers and drivers providing direct assistance in responding to the emergency relief from the normal hours of service (HOS) limits to deliver critical supplies and services to the communities in need. However, other safety regulations, including the driver qualification requirements of part 391, the vehicle inspection and other operating requirements such as prohibitions on operating while ill or fatigued in part 392, or the parts and accessories required by part 393 often have no direct bearing on the motor carrier's ability to provide assistance to the emergency relief efforts.
Safety regulations ensure that companies, vehicles, and drivers meet the minimum requirements to operate safely. While the temporary relief from some regulations may be necessary during an emergency, waiving every regulation in parts 390-399 could negatively impact the safety of commercial motor vehicles (CMVs) operating on the roadways. However, the Agency has no information that suggests that past or existing emergency exemptions have in fact negatively impacted road safety.
In order to provide clarity on which emergency exemptions are necessary during an emergency, FMCSA proposes to narrow the automatic applicability of § 390.23 to the HOS limits in §§ 395.3 and 395.5. This change would clarify that carriers and drivers are not authorized to overlook other important safety requirements while performing direct assistance to emergency relief efforts. By limiting the scope of the current rule on emergency regulatory relief, the NPRM would clarify that the Federal Motor Carrier Safety Regulations (FMCSRs) not relevant to most emergency situations remain in effect while retaining the Agency's flexibility to tailor emergency regulatory relief to the specific circumstances of an emergency.
This NPRM proposes changes to the definitions in §§ 390.5 and 390.5T. It would modify the definition for
This NPRM would revise § 390.23 in several ways. While Presidential declarations of emergency would continue to trigger a 30-day exemption from all FMCSRs in parts 390 through 399, the proposed rule would limit the duration and scope of the existing automatic regulatory relief that takes effect upon a regional declaration of an emergency by a Governor, a Governor's authorized representative, or FMCSA. The automatic regulatory relief would apply for only 5 days, as opposed to 30 days, and would exempt CMV drivers only from the HOS regulations in §§ 395.3 and 395.5, as opposed to all regulations in parts 390 through 399. This change would both shorten the time the automatic regulatory relief is in place as well as limit the scope of relief provided, ensuring that any impact on safety continues to be minimized during the period of the automatic regulatory relief. FMCSA determined that the period of 5 days for automatic relief was appropriate for regional declarations of emergency, as its experience in monitoring emergency declarations demonstrated that in most cases, the actual emergency (
Section 390.23 would maintain the statutory requirement from the Reliable Home Heating Act (49 U.S.C. 31136 note) that when a Governor declares a state of emergency due to a shortage of residential heating fuel, the automatic regulatory relief lasts for a period of 30 days and exempts any motor carrier or driver operating a CMV to provide residential heating fuel in the geographic area so designated as under a state of emergency from all regulations in parts 390 through 399. Consistent with the statute, the initial automatic exemption may be extended two times by the Governor, for a total of 90 days, if the Governor determines that the emergency shortage has not ended.
Third, for local emergencies, the automatic regulatory relief would be limited to the HOS regulations in §§ 395.3 and 395.5. This regulatory relief was already limited to 5 days, thus no change to the length of the automatic relief is needed. As with the changes proposed for regional declarations, this change would ensure that any impact on safety continues to be minimized during the period of the automatic regulatory relief.
Finally, this NPRM proposes to revise § 390.25 to simplify the language allowing FMCSA to extend and modify the regulatory relief outlined in § 390.23. It would also require that requests for extensions or modifications to exemptions be made via email. The proposal would maintain the provision allowing FMCSA to establish a new time limit and place any restrictions upon the emergency relief and proposes specifically naming reporting requirements as one of the restrictions FMCSA may choose to include. FMCSA will request approval from the Office of Information and Regulatory Affairs (OIRA) in OMB for a collection of information as part of this rulemaking process.
The Agency does not expect this proposed rule to result in substantive incremental impacts relative to the baseline established in the FMCSRs. Most of the changes proposed in this rule have already been in practice through modifications to existing exemptions, including those related to the Coronavirus Disease 2019 (COVID-19) emergency. FMCSA presents a qualitative analysis of the potential costs and benefits of limiting emergency exemptions, as there is uncertainty surrounding the number of motor carriers and drivers who currently utilize exemptions beyond HOS waivers.
In limiting the exemptions to the HOS regulations in §§ 395.3 and 395.5, as opposed to all of 49 CFR parts 390 through 399, this change may result in costs to certain motor carriers and drivers using those additional exemptions. However, as most emergency exemptions are limited to HOS requirements, including the current COVID-19 emergency exemption, the Agency believes this change would not result in incremental costs relative to the baseline.
Because automatic regulatory relief would decrease from 30 to 5 days for some non-Presidential declarations of emergencies, the proposed rule may result in an increase in the number of extension requests from motor carriers and drivers. An increase in the number of extension requests would increase the burden on drivers and motor carriers to prepare and submit extension requests, as well as the burden on the Agency to review and respond to them. FMCSA presents a quantitative analysis of the impacts of the proposed requirement for individuals to request extensions or modifications to exemptions via email.
While the existing FMCSRs offer relief from safety regulations in parts 390 through 399, FMCSA believes that most exemptions used during emergencies have been related to relief from the HOS requirement. The Agency has no information that suggests that existing emergency exemptions have negatively impacted road safety. This rule would provide clarity on which exemptions are necessary during an emergency and would ensure the public continues to benefit from the other important safety requirements in parts 390 through 399.
Under 49 U.S.C. 31136(a)(1), DOT is required to adopt regulations to ensure that “commercial motor vehicles are maintained, equipped, loaded, and operated safely,” but in accordance with 31136(e) may “grant in accordance with section 31315 waivers and exemptions from, or conduct pilot programs with respect to, any regulations prescribed under this section.” Section 31315(a) of 49 U.S.C. provides that the Secretary may grant waivers or exemptions from compliance in whole or in part with a regulation issued under section 31136 in certain situations. Section 31502(e) of 49 U.S.C. provides that certain regulations issued under 49 U.S.C. 31502 or 31136 shall not apply to the driver of a utility service vehicle during an emergency period, as declared by an elected official of one or more State or local governments having jurisdiction.
Title 49 U.S.C. 31136 note requires that the Secretary issue the regulations found within this document as proposed 49 CFR 390.23(a)(1)(ii)(B).
Finally, 49 U.S.C. 31133 provides that the Secretary of Transportation may perform other acts the Secretary considers appropriate. These responsibilities and authorities have been delegated by the Secretary to FMCSA. (49 U.S.C. 113 and 49 CFR 1.87)
For nearly 30 years, FMCSA has cited 49 CFR 390.23 “Relief from regulations” to provide automatic relief to motor carriers from various regulations. These relief provisions originated with the July 30, 1992,
FHWA undertook this rulemaking to address emergencies created by regional disasters. The 1992 final rule exempts motor carriers and drivers operating in interstate commerce from the requirements of parts 390 through 399 of the regulations when providing direct assistance as part of a disaster relief effort. To accomplish this, the rule provided that the exemption would be utilized only when a disaster had occurred and the President of the United States, a Governor of a State, or his or her authorized representative had publicly declared that assistance was needed to supplement State and local efforts to save lives and property, to protect public health and safety, or otherwise to lessen the impact of a disaster in any part of the U.S. The exemption would last the length of the emergency or 30 days from the time of the initial declaration, whichever was less, except that a motor carrier could apply for, and the Agency could approve, an extension of time prior to the expiration of the relief exemption. The Agency believed that the rule's definitions of
After a disaster has been declared, the exemption may be used by all motor carriers providing direct assistance to the disaster relief effort. The authorized individual declaring the disaster need not specify individual motor carriers allowed to use the exemption; rather, an individual motor carrier will decide if it wishes to participate in the relief effort and operate under the exemption. The final rule established the 30-day relief period, however, the time period lasts only as long as there is direct assistance being provided to the emergency relief effort, not to exceed 30 calendar days, unless extended by the Agency.
In the 1992 final rule, FHWA included a provision in the rule to deal with local emergencies by exempting motor carriers and drivers from parts 390 through 399 after a Federal, State, or local government official having authority to declare public emergencies has made such a declaration. Any motor carrier or driver providing direct assistance once a declaration of an emergency has been made by a government official may utilize this exemption. The exemption is effective for the motor carrier and/or driver as long as they are providing direct assistance to the emergency relief effort, but for no longer than 5 calendar days including the initial day of the emergency.
FHWA included a provision allowing for extension of the relief from regulations in § 390.25. This section provides that the Agency may extend the 30-day time period of the exemption contained in § 390.23(a)(1) (regional emergencies), but not the 5-day time period contained in § 390.23(a)(2) (local emergencies) or the 24-hour period contained in § 390.23(a)(3) (dealing with tow trucks). Any motor carrier or driver seeking to extend the 30-day limit shall obtain approval from the Agency in the region in which the motor carrier's principal place of business is located before the expiration of the 30-day period. The motor carrier or driver shall give full details of the additional relief requested. The Agency shall determine if such relief is necessary, taking into account both the severity of the ongoing emergency and the nature of the relief services to be provided by the carrier or driver. If the Agency approves an extension of the exemption, it shall establish a new time limit and place on the motor carrier or driver any other restrictions deemed necessary. In the 1992 final rule, FHWA stated that it did not believe that motor carriers and drivers should be allowed an extension of a local emergency or tow truck exemption in the absence of a declared regional emergency.
In the 1992 final rule, FHWA argued that emergencies are events that require immediate action to protect human life and the public welfare, and that the final rule removed regulatory requirements that could slow emergency response efforts by drivers and motor carriers. There have been technical amendments to §§ 390.23 and 390.25 published since the 1992 final rule, including revisions to reflect the transfer of authority for the regulations from FHWA to FMCSA; however, these amendments did not substantively amend either section.
On March 13, 2020, the President issued an emergency declaration in light of the COVID-19 pandemic. On the same date, FMCSA issued a regional declaration of emergency. Both declarations automatically triggered relief from all regulations in 49 CFR parts 390 through 399 for a period of 30 days in accordance with § 390.23(a). FMCSA has continually extended the emergency declaration since then in accordance with § 390.25(a). In its extensions of the COVID-19 emergency declaration,
Some Agency stakeholders have raised concerns in this regard. In October 2020, for example, the Commercial Vehicle Safety Alliance submitted a petition for a rulemaking asking FMCSA to revise §§ 390.23 and 390.25, and noting the potential safety risks posed by the blanket exemption provision:
For example, while it may be appropriate that during an emergency, all, or portions of, the hours-of-service regulations be waived to expedite the delivery of emergency supplies, there are many other critical safety components and driver requirements that are necessary to safely operate a commercial motor vehicle. Waiving Part 392, for example, which contains drug and alcohol requirements, as well as safe driving practices for a commercial motor vehicle, does nothing to expedite the delivery of emergency products or services, but may have a serious negative impact on highway safety.
Letter dated October 7, 2020, from Collin Mooney, Executive Director, CVSA, to Wiley Deck, then FMCSA Deputy Administrator. (A copy of the CVSA letter has been added to the docket (FMCSA-2022-0028).) The Agency has met with other groups in the past 18 months that have expressed similar concerns. Additionally, the Agency recently requested comment on the extent to which motor carriers are continuing to rely on the COVID-19 emergency declaration to deliver certain commodities and whether there has been any impact on safety (Sept. 7, 2022, 87 FR 54630), and received over three hundred comments.
FMCSA agrees that blanket relief from all the FMCSRs in all emergencies is not appropriate and that motor carriers and drivers of CMVs generally need relief only from the HOS regulations found in §§ 395.3 and 395.5 in order to provide direct assistance to emergency relief efforts. FMCSA initiated this rulemaking to ensure that any impact on safety would continue to be minimized
As noted above, FMCSA believes that the automatic emergency regulatory relief authorized by § 390.23 is unnecessarily broad for the intended purpose, as the primary, immediate constraint that drivers and carriers face when providing direct assistance during an emergency is the HOS limits.
FMCSA proposes to revise, remove, and add definitions to reflect changes made to the emergency exemption rules. These changes include removing an obsolete term, moving the definition of one term to the definition section, and revising two definitions (as discussed below in the “section-by-section” portion of this NPRM).
FMCSA also proposes to shorten the duration and limit the scope of the initial, automatic regulatory relief triggered by an emergency declaration in certain situations. The scope of relief would be limited to specific provisions of the HOS regulations unless the emergency declaration is made by the President under the authority of 42 U.S.C. 5191(b). The relief would also be limited to a period of 5 days unless the emergency declaration is made by the President under the authority of 42 U.S.C. 5191(b). Presidential declarations will continue to trigger a 30-day exemption from all FMCSRs in parts 390 through 399.
Any party, including a State or local official, who believes an extension of the HOS relief or broader regulatory relief is necessary, would be required to request relief and/or an extension from FMCSA. The Agency would evaluate any such request and could approve, modify, or deny the request, as appropriate. FMCSA would also have independent authority to extend or modify the emergency relief. No formal request or form would be required to request relief. Requests would be submitted to FMCSA's emergency declaration email inbox (
More sharply focused regulatory relief will continue to authorize emergency transportation in the public interest while allowing the Agency to better tailor regulatory relief to specific needs in emergencies. It will also avoid automatic suspension of the rest of the FMCSRs in 49 CFR parts 390 through 399, which pose no serious obstacles to drivers and carriers providing direct assistance to emergency relief efforts but could encourage an unwelcome indifference to compliance with safety regulations.
Beginning with the extension effective in September 2021, FMCSA included a reporting requirement as part of the COVID-19 emergency exemption, requiring motor carriers or drivers to inform FMCSA on how often they relied upon the emergency relief from the HOS regulations in the previous month. This data is used to determine whether the emergency regulatory relief should continue to be extended.
The usefulness of this data prompted FMCSA to propose adding language to § 390.25 to expressly note that one of the conditions FMCSA may include when extending an emergency exemption is to collect information from those carriers and drivers relying upon the regulatory relief. Information on the burden of such a collection of information may be found later in this NPRM.
This section-by-section analysis describes the proposed changes in numerical order.
This NPRM proposes changes to the definitions found in §§ 390.5 and 390.5T. The definition for
The definition for
This NPRM proposes several revisions to § 390.23. Paragraph (a) would be clarified to include only those Presidential declarations of emergency issued under 42 U.S.C. 5191(b). These declarations would continue to trigger automatic regulatory relief from parts 390 through 399 for the duration of the emergency, or 30 days from the declaration, whichever is less. This change is being made to ensure that the broader relief triggered by a Presidential declaration of emergency is limited to those situations where a President “determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority.” In addition, this change clarifies the relevant time periods for emergency regulatory relief and eliminates overlapping and potentially conflicting periods where a Presidential disaster or emergency declaration is issued in response to a request from a State when the State has already declared an emergency resulting in relief from certain Federal motor carrier safety regulations. Paragraph (b) of § 390.23 would be used for the emergency declaration scenarios laid out in 42 U.S.C. 5191(a) and (c), where the Presidential declaration is based on an underlying State or Indian Tribal request.
Paragraph (c) would cover local emergencies, whether declared by a Federal, State, or local government official with authority to declare an emergency. The automatic regulatory relief in this case would be limited to a period of 5 days or for the period of assistance (whichever is less) and provide relief only from the HOS requirements in §§ 395.3 and 395.5.
Paragraph (d) of proposed § 390.23 carries forward the special provision for tow trucks from existing paragraph (a)(3). The emergency regulatory relief provided in this paragraph applies only to the HOS regulations in § 395.3 and lasts for no more than 24 hours. No substantive changes are proposed.
Paragraph (e) would carry forward the provisions in existing paragraph (b), outlining the details of when direct assistance to an emergency effort terminates, and the impact of that termination on the terms of the emergency regulatory relief. Changes to this paragraph are made only to clarify the rule; no substantive changes are proposed.
FMCSA is proposing to change the section heading to indicate that the section applies not only to extensions of emergency relief, but also to their modification. The section would be divided into two paragraphs. Proposed paragraph (a) of § 390.25 would provide that FMCSA may extend or modify any of the emergency regulatory relief issued under § 390.23 on its own initiative, or upon request by an interested party who provides a detailed explanation of the
FMCSA has considered the impact of this NPRM under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and DOT's regulatory policies and procedures. OIRA within OMB determined that this notice of proposed rulemaking is not a significant regulatory action under section 3(f) of E.O. 12866, as supplemented by E.O. 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Accordingly, OMB has not reviewed it under that order.
As described above, the changes proposed in this NPRM would exempt CMV drivers and motor carriers only from the HOS regulations in §§ 395.3 and 395.5, as opposed to all regulations in 49 CFR parts 390 through 399, following a regional or local declaration of emergency. In addition, when a regional declaration of emergency is triggered, the automatic regulatory relief would apply for only 5 days, as opposed to the current 30-day standard. The proposed rule would retain the existing automatic regulatory relief of 30 days under Presidential and 5 days under local declarations of emergencies.
We do not expect this proposed rule to result in substantive incremental impacts relative to the baseline established in the FMCSRs. Most of the changes proposed in this rule have already been in practice through modifications to existing exemptions, including the COVID-19 emergency exemption.
Since the publication of the 1992 final rule, the FMCSRs have provided the option for motor carriers and drivers to be exempt from the requirements in parts 390 through 399 following a declaration of a Presidential, regional, or local emergency. Beginning in 2020, the COVID-19 related emergency exemption has been utilized to aid with supply chain shortages during the pandemic, as well as with distributing medical products for dealing with COVID-19 (such as tests, treatments, and vaccines). The unprecedented need to continually extend an emergency exemption prompted FMCSA to reevaluate the rule for exemptions issued in response to an emergency declaration.
In September 2021, FMCSA modified the COVID-19 exemption to narrow the issued relief to just the HOS requirements in §§ 395.3 and 395.5. Based on Agency experience and expertise, FMCSA believes the HOS limits are the primary, immediate constraints drivers and carriers face when providing direct assistance during an emergency. As such, any driver currently operating under the COVID-19 exemption is already afforded only HOS-related exemptions and not a broad exemption from all requirements of parts 390 through 399.
The need for practical and effective exemptions has been highlighted since the COVID-19 pandemic of 2020. The NPRM emphasizes the need for ensuring that relief granted by emergency declarations is appropriate and tailored to the specifics of the circumstances and emergency being addressed. FMCSA believes that a blanket relief from all FMCSRs in parts 390 through 399 is not necessary. Most often, motor carriers and drivers of CMVs need relief from only the HOS regulations in §§ 395.3 and 395.5 in order to provide direct assistance to emergency relief efforts.
FMCSA presents a qualitative analysis of the potential costs and benefits of limiting emergency exemptions to HOS waivers. There is uncertainty surrounding the number of motor carriers and drivers who currently utilize exemptions beyond the HOS regulations in §§ 395.3 and 395.5 because FMCSA has not previously collected data on the use of the exemptions, and therefore cannot quantitively inform the potential impacts of limiting emergency exemptions. While the Agency did begin collecting data on COVID-19 exemption use in September of 2021, this data is insufficient to quantitatively estimate these impacts. It provides FMCSA with a basis for the number of respondents to potential data collections on extensions of emergency exemptions, but it does not provide insight into the use of exemptions beyond HOS exemptions. In order to quantify these impacts, the Agency would need historical data on how many motor carriers and drivers operating during emergency declarations use exemptions from the requirements in parts 390 through 399, excluding the HOS regulations in §§ 395.3 and 395.5, as well as data on how many trips drivers make during those periods. Comprehensive and verifiable data in this area are likely unavailable.
In narrowing the exemptions to the HOS regulations in §§ 395.3 and 395.5, as opposed to all of parts 390 through 399, this proposed rule may result in costs to certain motor carriers and drivers using those additional exemptions. As mentioned above, FMCSA does not have data to indicate how many carriers and drivers are using emergency-related exemptions beyond the HOS exemptions. However, most emergency exemptions are limited to HOS requirements, including the COVID-19 emergency exemption; therefore, the Agency believes this change would not result in incremental costs relative to the baseline.
As discussed in the Paperwork Reduction Act (PRA) section below, FMCSA estimates that there could be 477 monthly respondents if the Agency adds a reporting requirement to an extension or modification of an exemption. This estimate is based on the average number of responses the Agency received from the COVID-19 emergency exemption data collection. This would represent an upper-bound estimate for how many motor carriers the Agency expects would be required to report their use of an extension and thus be subject to an information collection. The costs of this proposed rule are associated with the cost of compliance to all parts of 390 through 399 except the HOS regulations in §§ 395.3 and 395.5, whereas the 477 respondents denoted below represent all individuals using extensions of emergency exemptions which include a reporting requirement. The number of individuals who may incur costs to comply with parts 390 through 399 would be a subset of the individuals using extensions of emergency exemptions. As such, the number of affected entities would likely be fewer than 477 individuals. The Agency does
The proposed rule may result in an increase in the number of extension requests from motor carriers and drivers, as exemption periods resulting from non-Presidential emergency declarations would be reduced from 30 to 5 days. This rule would require individuals to request extensions or modifications to exemptions via email whenever they seek such action from FMCSA. These requests are currently made to local FMCSA offices, but they may be made by any means.
A requirement for drivers and motor carriers to submit extension requests would increase the burden on drivers and motor carriers to prepare and submit such requests, as well as the burden on the Agency to review and respond to them. As mentioned in the PRA section below, the Agency estimates that 50 individuals
The Agency estimates that requests for extensions would take 15 minutes each to review. The requests would be reviewed by a GS-13, step 5 in the Washington, DC area with a loaded hourly wage of $117.69. The total annual cost to review these extension requests is $1,471.10 ($117.69 × 12.5 hours).
While the existing FMCSRs offer relief from safety regulations in parts 390 through 399, FMCSA believes that most exemptions used during emergencies have been related to HOS requirement relief. The Agency has no information that suggests that existing emergency exemptions have negatively impacted road safety. This rule would provide clarity on which exemptions are necessary during an emergency and would ensure the public continues to benefit from the other important safety requirements in parts 390 through 399. In addition, in requiring that individuals request extensions or modifications to exemptions via email, the Agency would be able to more efficiently track exemption requests.
Pursuant to the Congressional Review Act (5 U.S.C. 801-808), OIRA designated this rule as not a
Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance notice of proposed rulemaking (ANPRM) or proceed with a negotiated rulemaking, if a proposed rule is likely to lead to the promulgation of a major rule. As this proposed rule is not likely to result in the promulgation of a major rule, the Agency is not required to issue an ANPRM or to proceed with a negotiated rulemaking.
The Regulatory Flexibility Act (5 U.S.C. 601
The proposed rule would affect motor carriers and drivers. Drivers are not considered small entities because they do not meet the definition of a small entity in section 601 of the RFA. Specifically, drivers are considered neither a small business under section 601(3) of the RFA, nor are they considered a small organization under section 601(4) of the RFA. The Small Business Administration's (SBA) size standard for a small entity (13 CFR 121.201) differs by industry code. The entities affected by this rule fall into many different industry codes. In order to determine if this rule would have an impact on a significant number of small entities, FMCSA examined the 2017 Economic Census data
According to the 2017 Economic Census, approximately 99.4 percent of truck transportation firms, and approximately 99.2 percent of transit and ground transportation firms, had annual revenue less than the SBA's revenue thresholds of $30 million and $16.5 million, respectively, to be defined as a small entity. Therefore, FMCSA has determined that this rule would impact a substantial number of small entities. However, as emergencies are generally infrequent and the primary impact of the rule would be to marginally limit the breadth of the automatic exemptions that apply after a regional or local emergency declaration, FMCSA has determined that this rule would not have a significant impact on the affected entities.
Consequently, I certify that the proposed action would not have a significant economic impact on a substantial number of small entities.
In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996,
Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman (Office of the National Ombudsman, see
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) requires Federal agencies to assess the effects of their discretionary regulatory actions. The Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $178 million (which is the value equivalent of $100 million in 1995, adjusted for inflation to 2021 levels) or more in any 1 year. Though this NPRM would not result in such an expenditure, and the analytical requirements of UMRA do not apply as a result, the Agency discusses the effects of this rule elsewhere in this preamble.
This NPRM contains information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c),
As required by the Paperwork Reduction Act of 1995, FMCSA will submit a copy of this NPRM to OMB for review.
You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for FMCSA to perform its functions; (2) the accuracy of the estimated burden; (3) ways for FMCSA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized without reducing the quality of the collected information.
A rule has implications for federalism under section 1(a) of E.O. 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
FMCSA has determined that this rule would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.
The Consolidated Appropriations Act, 2005,
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency that receives records contained in a system of records from a Federal agency for use in a matching program.
The E-Government Act of 2002,
No new or substantially changed technology would collect, maintain, or disseminate information as a result of this proposed rule. Accordingly, FMCSA has not conducted a PIA.
In addition, the Agency submitted a Privacy Threshold Assessment (PTA) to evaluate the risks and effects the proposed rulemaking might have on collecting, storing, and sharing personally identifiable information. The PTA has been submitted to FMCSA's Privacy Officer for review and preliminary adjudication and to DOT's Privacy Officer for review and final adjudication.
This rule does not have Tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect
FMCSA analyzed this proposed rule pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, FMCSA proposes to amend 49 CFR part 390 as follows:
49 U.S.C. 113, 504, 508, 31132, 31133, 31134, 31136, 31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; secs. 212 and 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744), 113 Stat. 1748, 1773; sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; secs. 32101(d) and 32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; secs. 5403, 5518, and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1558, 1560; sec. 2, Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.81, 1.81a, 1.87.
The revisions and addition read as follows:
The revisions and addition read as follows:
(a)
(b)
(1)
(2) [Reserved]
(c)
(d)
(e)
(2) Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo not destined for the emergency relief effort, or when the motor carrier dispatches such driver or commercial motor vehicle to another location to begin operations in commerce.
(3) When the driver has been relieved of all duty and responsibilities upon termination of direct assistance to an emergency relief effort, no motor carrier shall permit or require any driver used by it to drive nor shall any such driver drive in commerce until the driver has met the requirements of §§ 395.3(a) and (c) and 395.5(a) of this chapter.
(a) FMCSA may extend the period of the regulatory relief or modify the scope of emergency relief contained in § 390.23. Interested parties may also request an extension or modification by providing a detailed explanation of the need for an extension or modification of the relief. Any interested party seeking to extend the period of regulatory relief shall send its request to the FMCSA emergency declarations mailbox,
(b) If FMCSA initiates or approves an extension of the regulatory relief, it shall establish a new time limit and may place terms and conditions on motor carriers or drivers relying upon the continued or modified relief. These terms and conditions may include reporting requirements concerning operations under the exemption.
Issued under authority delegated in 49 CFR 1.87.
United States Agency for International Development (USAID).
Notice of request for emergency OMB approval.
In accordance with the emergency review procedures of the Paperwork Reduction Act of 1995 (PRA), the United States Agency for International Development (USAID), is announcing that it has submitted a request to the Office of Management and Budget (OMB) for emergency approval of a new information collection to inform technical approaches to implementing USAID's COVID-19 Implementation Plan. If granted, this emergency approval will be valid for six months from the date of approval.
If this request for approval is granted, USAID plans to collect performance data for a period of six months, beginning on or about December 15, 2022.
Requests for additional information should be directed to Megan McGuire,
The proposed collection would request reporting from USAID award recipients (Implementing Partners) of performance indicators to be submitted through USAID's Development Information Solution (DIS) on the frequency designated in their awards. This activity-level information, in conjunction with contextual data, will allow USAID to track progress against the objectives of the U.S. Global COVID-19 Response and Recovery Framework. It will be used for adaptive management, evidence-based strategic decision-making, and accountability. Information will be requested of contracts and grants in the Global VAX surge countries (Angola, Côte d'Ivoire, Eswatini, Ghana, Lesotho, Nigeria, Senegal, South Africa, Tanzania, Uganda, and Zambia) and for contracts and grants receiving more than $500,000 in COVID-19 funds obligated after 9/1/2022 in Ethiopia, Liberia, Madagascar, Malawi, Mozambique, Haiti and the Philippines.
The performance data would supplement contextual, country-level data currently analyzed by USAID and will provide critical, timely insight into the Agency's COVID-19 response. The collection and reporting of performance indicators by USAID's IPs will facilitate adaptive management, strategic planning, and ensure that COVID-10 response activities are continually aligned with the Agency's primary objectives and the evolving nature of the pandemic. The data will inform the strategic and operational approaches of both the Agency's Washington offices and field-based Missions involved in the COVID-19 response.
USAID estimates an annual time burden of 333 hours per award or 83 hours per response, assuming most awards report on a quarterly basis. USAID expects that a total of 41 awards will be subject to the information collection requirements; for these awards, the time burden is expected to total 13,653 hours per year, or 6,827 hours for the six-month period specified in the emergency information collection review.
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 required 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 January 9, 2023 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.
In the Executive Order 14058, the Secretary of Agriculture tasked FSA with simplifying the direct loan application process. As such, forms FSA-2001, FSA-2002, FSA-2003, FSA-2004, FSA-2005, FSA-2006, FSA-2037, FSA-2038, FSA-2302, and FSA-2330 have been consolidated into a single form for the purposes of direct loan making and that consolidation is reflected in this collection.
Commission on Civil Rights.
Notice; cancellation of meeting.
The Commission on Civil Rights published a notice in the
The meeting scheduled for Wednesday, December 21, 2022, at 2:00 p.m. (ET) is cancelled.
Ivy Davis, (202) 539-8468.
The notice is in the
U.S. Census Bureau, Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act (PRA) of 1995, invites 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. The purpose of this notice is to allow for 60 days of public comment on the proposed revision of the National Survey of Children's Health, prior to the submission of the information collection request (ICR) to OMB for approval.
To ensure consideration, comments regarding this proposed information collection must be received on or before February 6, 2023.
Interested persons are invited to submit written comments by email to
Requests for additional information or specific questions related to collection activities should be directed to Carolyn Pickering, Survey Director, by way of phone (301-763-3873) or email (
Sponsored primarily by the U.S. Department of Health and Human Services' Health Resources Services Administration's Maternal and Child Health Bureau (HRSA MCHB), the National Survey of Children's Health (NSCH) is designed to produce data on the physical and emotional health of children under 18 years of age who live in the United States. The United States Department of Agriculture (USDA), the United States Department of Health and Human Services' Centers for Disease Control and Prevention (CDC), the National Center on Birth Defects and Developmental Disabilities (CDC-NCBDDD), and the Division of Nutrition, Physical Activity, and Obesity (CDC-DNPAO) sponsor supplemental content on the NSCH. Additionally, the upcoming cycle of the NSCH plans to include fifteen (15) age, state, or regional oversamples. The age-based oversample would be funded by the United States Department of Health and Human Services' Center for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion (CDC-NCCDPHP). The state- or region-based oversamples would be sponsored by Children's Health Care of Atlanta, the State of California, the State of Colorado, the State of Illinois, the State of Kansas, the State of Louisiana, the State of Minnesota, the State of Nebraska, the State of New Mexico, the State of Ohio, the State of Pennsylvania, the State of Tennessee, the State of Wisconsin, and the State of Wyoming.
The NSCH collects information on factors related to the well-being of children, including access to health care, in-home medical care, family interactions, parental health, school and after-school experiences, and neighborhood characteristics. The goal
NSCH is seeking clearance to make the following changes:
• Increased sample size—The MCHB sponsored NSCH sample plus the separately sponsored age-, state-, or region-based oversamples will be approximately 385,000 addresses for the 2023 NSCH, compared with 360,000 in 2022. The increased sample will allow individual states and agencies to produce statistically sound child health estimates in a fewer number of pooled years than if the sample were to remain the same annually, thereby resulting in more timely age-, state- and region-based health estimates of children.
• Revised questionnaire content—The NSCH questionnaires with newly proposed and revised content from the sponsors at HRSA MCHB are currently undergoing two rounds of cognitive testing. This testing request was submitted under the generic clearance package and approved by OMB.
• Oversamples
Besides the proposed changes listed above, the 2023 NSCH will proceed with the current design outlined in the previous OMB ICR package, including the use of incentives. Response rates for the unconditional monetary incentive group continues to show a statistically significant difference over the control group that did not receive an unconditional monetary incentive. As part of the initial screener mailing, 90% will include $5 and 10% will not receive an incentive. The incentive assignment to each sampled address would still be random as was done in prior cycles and approved by OMB. Additionally, the use of a $5 or $10 incentive with the initial paper topical mailing will be used. Additional incentives and mailing strategies may be used to both reduce nonresponse bias and improve response rates per request of the sponsor and as funding allows. We will continue to make modifications to data collection strategies based on modeled information about paper or internet response preference. Results from prior survey cycles will continue to be used to inform the decisions made regarding future cycles of the NSCH.
From prior cycles of the NSCH, using American Association for Public Opinion Research definitions of response, we can expect for the 2023 NSCH an overall screener completion rate to be about 44.4% and an overall topical completion rate to be about 31.3%.
The Topical Completion Rate is the proportion of topical-eligible households (
The 2023 NSCH plan for the web push data collection design includes approximately 70% of the production addresses receiving an initial invite with instructions on how to complete an English or Spanish-language screener questionnaire via the web. Households that decide to complete the web-based survey will be taken through the screener questionnaire to determine if they are eligible for one of three topical instruments. Households that list at least one child who is 0 to 17 years old in the screener are directed into a topical questionnaire immediately after the last screener question. If a household in the web push treatment group decides to complete the paper screener, the household will receive an additional topical questionnaire incentive. This group will receive two web survey invitation letters requesting their participation in the survey prior to receiving up to two additional paper screener questionnaires in the second and third follow-up mailings.
The 2023 NSCH plan for the mixed-mode data collection design includes up to 30% of the production addresses receiving a paper screener questionnaire in either the initial or the first nonresponse follow-up and instructions on how to complete an English or Spanish language screener questionnaire via the web. Households that decide to complete the web-based survey will follow the same screener and topical selection path as the web push. Households that choose to complete the paper screener questionnaire rather than completing the survey on the internet and that have eligible children will be mailed a paper topical questionnaire upon receipt of their completed paper screener at the Census Bureau's National Processing Center. If a household in the mixed-mode group chooses to complete the paper screener instead of completing the web-based screener via the internet, then the household will receive an additional topical questionnaire incentive. This group will receive both a web survey invitation letter along with a mailed paper screener questionnaire with either the initial invitation or the first follow-up and each additional nonresponse follow-up mailing.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated 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 personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that producers and/or exporters subject to this administrative review made sales of subject merchandise at less than normal value during the period of review (POR), May 1, 2020, through April 30, 2021. Additionally, Commerce determines that a company for which we initiated a review had no shipments during the POR.
Applicable December 8, 2022.
Alice Maldonado or David Crespo, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4682 or (202) 482-3693, respectively.
This review covers 11 producers and/or exporters of the subject merchandise. Commerce selected two companies, NLMK Verona SpA (NVR) and Officine Tecnosider s.r.l. (OTS), for individual examination. One company, Lyman Steel Company (Lyman), reported having no shipments during the POR,
On June 6, 2022, Commerce published the
Commerce conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The products covered by the
Commerce was unable to conduct on-site verification of the information relied upon for the final results of this review. However, we took additional steps in lieu of an on-site verification to verify this information, in accordance with section 782(i) of the Act.
All issues raised in the case and rebuttal briefs are listed in the appendix to this notice and addressed in the Issues and Decision Memorandum. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
As noted in the
Based on a review of the record and comments received from interested parties regarding our
The Act and Commerce's regulations do not address the establishment of a rate to be applied to companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act.
Generally, when calculating margins for non-selected respondents, Commerce looks to section 735(c)(5) of the Act for guidance, which provides instructions for calculating the all-others rate in an investigation. Section 735(c)(5)(A) of the Act provides that when calculating the all-others rate, Commerce will exclude any zero and
We are assigning the following weighted-average dumping margins to the firms listed below for the period May 1, 2020, through April 30, 2021:
Commerce intends to disclose the calculations performed in connection with these final results of review to parties in this review within five days after public announcement of the final results or, if there is no public announcement, within five days of the date of publication of this notice in the
Pursuant to section 751(a)(2)(C) of the Act, and 19 CFR 351.212(b)(1), Commerce shall determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review.
Pursuant to 19 CFR 351.212(b)(1), where the respondent reported the entered value of its U.S. sales, we calculated importer-specific
For the companies that were not selected for individual review, we will assign an assessment rate based on the cash deposit rates calculated for NVR and OTS, excluding any rates that are zero,
Commerce's “automatic assessment” will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know that the merchandise they sold to the intermediary (
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 for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
This notice serves as a final 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 review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is being issued in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that, except as noted below, imports of certain crystalline silicon photovoltaic cells, whether or not assembled into modules (solar cells and modules), that were exported from the Kingdom of Cambodia (Cambodia), Malaysia, the Kingdom of Thailand (Thailand), or the Socialist Republic of Vietnam (Vietnam) using parts and components produced in the People's Republic of China (China), as specified below, are circumventing the antidumping duty (AD) and countervailing duty (CVD) orders on solar cells and modules from China.
Applicable December 8, 2022.
Jose Rivera, Toni Page, and Peter Shaw (Cambodia and Malaysia) and Jeff Pedersen and Paola Aleman Ordaz (Thailand and Vietnam), Offices VII and IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0842, (202) 482-1398, (202) 482-0697, (202) 482-2769, and (202) 482-4031, respectively.
On December 7, 2012, Commerce published in the
On May 12, 2022, Commerce selected two respondents from each of the examined third countries as the mandatory respondents in these circumvention inquiries.
On August 22, 2022, Commerce extended the deadline for issuing the preliminary determinations in these circumvention inquiries by 90 days, until November 28, 2022.
The products subject to the
These circumvention inquiries cover certain solar cells and modules that have been completed in Cambodia, Malaysia, Thailand, or Vietnam, using parts and components from China, as specified below, that are then subsequently exported from Cambodia, Malaysia, Thailand, or Vietnam to the United States (inquiry merchandise).
Specifically, these circumvention inquiries cover: (A) crystalline silicon photovoltaic cells that meet the physical description of crystalline silicon photovoltaic cells in the scope of the underlying
If modules, laminates, and panels consisting of crystalline silicon photovoltaic cells do not meet both of the conditions in item (B) above, then these circumvention inquiries do not cover the modules, laminates, and panels, or the crystalline silicon photovoltaic cells within the modules, laminates, and panels, even if those crystalline silicon photovoltaic cells were produced in Cambodia, Malaysia, Thailand, or Vietnam from wafers produced in China. Wafers produced outside of China with polysilicon sourced from China are not considered to be wafers produced in China for purposes of these circumvention inquiries.
Commerce made these preliminary circumvention findings in accordance with section 781(b) of the Act and 19 CFR 351.226. For a full description of the methodology underlying the preliminary determinations,
As detailed in the Preliminary Decision Memoranda, with the exception of certain U.S. imports from the exporters identified in Appendix III to this notice, we preliminarily determine that U.S. imports of inquiry merchandise are circumventing the
We preliminarily determine that solar cells/solar modules exported from, and produced in, Cambodia, Malaysia, or Vietnam by the entities identified in Appendix III to this notice using wafers produced in China exported by specific companies are not circumventing the
Pursuant to section 776(a) of the Act, if necessary information is not available on the record, or an interested party withholds requested information, fails to provide requested information by the deadline or in the form and manner requested, or significantly impeded a proceeding, Commerce shall use the facts otherwise available in reaching the applicable determination. Moreover, pursuant to section 776(b) of the Act, Commerce may use inferences adverse to the interests of an interested party in selecting from among the facts otherwise available if the party fails to cooperate by acting to the best of its ability to provide requested information.
Commerce requested information from certain companies in each of the examined countries related to the
Therefore, we preliminarily find that necessary information is not available on the record and that the companies that failed to timely respond to the Q&V questionnaire withheld requested information, failed to provide requested information by the deadline or in the form and manner requested, and significantly impeded these inquiries. Moreover, we find that these companies failed to cooperate to the best of their abilities to provide the requested Q&V information because they did not provide any response to Commerce's Q&V questionnaire. Consequently, we used adverse inferences with respect to these companies in selecting from among the facts otherwise available on the record, pursuant to sections 776(a) and (b) of the Act. For details regarding the adverse facts available used in our decisions,
Based on the adverse facts available used, we preliminarily determine that the companies listed in Appendix II to this notice exported inquiry merchandise and that U.S. entries of that merchandise are circumventing the
U.S. entries of inquiry merchandise made on or after April 1, 2022, that are ineligible for certification based on the failure of the companies in Appendix II to cooperate, or for other reasons, shall remain subject to suspension of liquidation until final assessment instructions on those entries are issued, whether by automatic liquidation instructions, or by instructions pursuant to the final results of an administrative review.
On June 6, 2022, the President of the United States signed Proclamation 10414, “Declaration of Emergency and Authorization for Temporary Extensions of Time and Duty-Free Importation of Solar Cells and Modules from Southeast Asia” (the Proclamation). In the Proclamation, the President directed the Secretary of Commerce (the Secretary) to.
On September 12, 2022, Commerce added Part 362 to its regulations to implement the Proclamation. Pursuant to 19 CFR 362.103(b)(1)(i), Commerce will direct U.S. Customs and Border Protection (CBP) to discontinue the suspension of liquidation and collection of cash deposits that were ordered based on Commerce's initiation of these circumvention inquiries. In addition, pursuant to 19 CFR 362.103(b)(1)(ii) and (iii), Commerce will not direct CBP to suspend liquidation, and require cash deposits, of estimated ADs and CVDs based on these affirmative preliminary determinations of circumvention on, any “Applicable Entries.” However, Commerce will direct CBP to suspend liquidation, and collect cash deposits, of estimated ADs and CVDs based on these affirmative preliminary determinations of circumvention on, imports of “Southeast Asian-Completed cells and modules” that are not “Applicable Entries.”
Pursuant to 19 CFR 362.102, `Southeast Asian-Completed Cells and Modules” are:
“Applicable Entries means the entries of Southeast Asian-Completed Cells and Modules that are entered into the United States, or withdrawn from warehouse, for consumption before the Date of Termination and, for entries that enter after November 15, 2022, are used in the United States by the Utilization Expiration Date.”
Therefore, based on these affirmative preliminary determinations of circumvention, Commerce intends to direct CBP to suspend liquidation of,
Upon termination of the Proclamation, Commerce will issue instructions to CBP that are described in 19 CFR 362.103(b)(2). Moreover, given the instant preliminary country-wide affirmative determinations of circumvention with respect to Cambodia, Malaysia, Thailand, and Vietnam, and the fact that the “Date of Termination” is currently June 6, 2024, pursuant to 19 CFR 362.103(b)(3), Commerce intends to issue an instruction to CBP in which it: (1) informs CBP that the Date of Termination is June 6, 2024; and (2) with the exception of the entries for which the importer and exporter have met the requirements of the relevant certifications described in the “Certified Entries” section of this notice below, directs CBP to begin suspension of liquidation, and require a cash deposit of estimated ADs and CVDs, at the applicable rate described below, for each unliquidated entry of inquiry merchandise entered, or withdrawn from warehouse, for consumption on or after the Date of Termination of the Proclamation. The applicable cash deposit rates are as follows: (1) for exporters of inquiry merchandise that have a company-specific cash deposit rate under the
Entries prior to the Date of Termination for which the importer and exporter have met the certification requirements described below and in Appendix IV, V,
In order to administer these preliminary country-wide affirmative determinations of circumvention, and the preliminary company-specific negative determinations of circumvention, and to implement the Proclamation, Commerce has established the following types of certifications: (1) importer and exporter certifications that specific entries meet the regulatory definition of “Applicable Entries” (
Importers and exporters that claim that: (1) an entry of “Southeast Asian-Completed cells and modules” is an “Applicable Entry”; (2) an entry of solar cells or solar modules is not subject to suspension of liquidation or the collection of cash deposits based on the preliminary negative circumvention determination with respect to one of the companies listed in Appendix III; or (3) the entry of solar cells or solar modules is not subject to suspension of liquidation or the collection of cash deposits based on the inputs used to manufacture such merchandise, must complete the applicable certification and meet the certification and documentation requirements described below, as well as the requirements identified in the applicable certification.
Importers are required to complete and maintain the applicable importer certification, and maintain a copy of the applicable exporter certification, and retain all supporting documentation for both certifications. With the exception of the entries described below, the importer certification must be completed, signed, and dated by the time the entry summary is filed for the relevant entry. The importer, or the importer's agent, must submit both the importer's certification and the exporter's certification to CBP as part of the entry process by uploading them into the document imaging system (DIS) in ACE. Where the importer uses a broker to facilitate the entry process, it should obtain the entry summary number from the broker. Agents of the importer, such as brokers, however, are not permitted to certify on behalf of the importer.
Exporters are required to complete and maintain the applicable exporter certification and provide the importer with a copy of that certification and all supporting documentation (
Additionally, the claims made in the certifications and any supporting documentation are subject to verification by Commerce and/or CBP. Importers and exporters are required to maintain the certifications and supporting documentation for the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.
For all solar cells or solar modules from Cambodia, Malaysia, Thailand, or Vietnam that were entered, or withdrawn from warehouse, for consumption during the period April 1, 2022, (the date of initiation of these circumvention inquiries) through the date of publication of the preliminary determinations in the
For unliquidated entries (and entries for which liquidation has not become final) of solar cells and solar modules that were declared as non-AD/CVD type entries (
If it is determined that an importer and/or exporter has not met the certification and/or related documentation requirements for certain entries, Commerce intends to instruct CBP to suspend, pursuant to these preliminary country-wide affirmative determinations of circumvention and the
Interested parties may comment on these certification requirements, and on the certification language contained in the appendices to this notice in their case briefs.
As provided in 19 CFR 351.226(f)(3), Commerce intends to verify the information relied upon in making its final determinations.
Case briefs or other written comments for a particular country should be
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing for a particular country, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice in the
Commerce, consistent with section 781(e) of the Act, will notify the U.S. International Trade Commission (ITC) of these preliminary determinations to include the merchandise subject to these circumvention inquiries within the
These determinations are issued and published in accordance with section 781(b) of the Act and 19 CFR 351.226(g)(1).
I hereby certify that:
(A) My name is {IMPORTING COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF IMPORTING COMPANY}, located at {ADDRESS OF IMPORTING COMPANY}.
(B) I have direct personal knowledge of the facts regarding importation of the solar cells and solar modules produced in {SELECT ONE OF THE FOLLOWING COUNTRIES: KINGDOM OF CAMBODIA, MALAYSIA, THE KINGDOM OF THAILAND, OR THE SOCIALIST REPUBLIC OF VIETNAM} that were entered into the Customs territory of the United States under the entry summary number(s) identified below which are covered by this certification. “Direct personal knowledge” refers to the facts the certifying party is expected to have in its own records. For example, the importer should have direct personal knowledge of the exporter and/or seller's identity and location.
(C) If the importer is acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
The solar cells and/or solar modules covered by this certification were imported by {NAME OF IMPORTING COMPANY} on behalf of {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER}.
If the importer is not acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
{NAME OF IMPORTING COMPANY} is not acting on behalf of the first U.S. customer.
(D) The solar cells and/or solar modules covered by this certification were shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM THE MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
(E) I have personal knowledge of the facts regarding the production and exportation of the solar cells and modules identified below. “Personal knowledge” includes facts obtained from another party, (
(F) The imported solar cells and/or solar modules covered by this certification:
1. Were produced in {SELECT ONE OF THE FOLLOWING COUNTRIES: KINGDOM OF CAMBODIA, MALAYSIA, THE KINGDOM OF THAILAND, OR THE SOCIALIST REPUBLIC OF VIETNAM} using parts and components manufactured in the People's Republic of China;
2. Were exported to the United States from {SELECT ONE OF THE FOLLOWING COUNTRIES: KINGDOM OF CAMBODIA, MALAYSIA, THE KINGDOM OF THAILAND, OR THE SOCIALIST REPUBLIC OF VIETNAM} without further assembly in another country;
3. Are not covered by: (a) the antidumping duty or countervailing duty orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China; or (b) the antidumping duty order on certain crystalline silicon photovoltaic products from Taiwan;
4. Were entered into the United States, or were withdrawn from warehouse, for consumption before 06/06/2024, or before the date the emergency described in Presidential Proclamation 10414 is terminated, whichever occurs first; and
5. If entered, or withdrawn from warehouse, after November 15, 2022, the solar cells and/or solar modules will be utilized in the United States by no later than 180 days after the earlier of 06/06/2024, or the date the emergency described in Presidential Proclamation 10414 is terminated. Utilized means the solar cells or solar modules will be used or installed in the United States. Solar cells or solar modules which remain in inventory or in a warehouse in the United States, are resold to another party, are subsequently exported, or are destroyed after importation are not considered utilized.
(G) This certification applies to the following entries (repeat this block as many times as necessary):
(H) I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
(I) I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of the exporter's certification (attesting to information regarding the production and/or exportation of the imported merchandise identified above), and any supporting documentation provided to the importer by the exporter, until the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.
(J) I understand that {NAME OF IMPORTING COMPANY} is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with the importer certification, and any supporting documentation, and a copy of the exporter's certification, and any supporting documentation provided to the importer by the exporter, upon the request of either agency.
(K) I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce.
(L) I understand that failure to maintain the required certifications and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the antidumping duty and countervailing duty cash deposits determined by Commerce; and
(iii) the importer no longer being allowed to participate in the certification process.
(M) I understand that agents of the importer, such as brokers, are not permitted to make this certification.
(N) This certification was completed and signed on, or prior to, the date of the entry summary if the entry date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
(O) I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
The party that made the sale to the United States should fill out the exporter certification.
I hereby certify that:
(A) My name is {COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES}, located at {ADDRESS OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES};
(B) I have direct personal knowledge of the facts regarding the production and exportation of the solar cells and solar modules for which sales are identified below. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, an exporter should have direct personal knowledge of the producer's identity and location.
(C) The solar cells and/or solar modules covered by this certification were shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
(D) The solar cells and/or solar modules covered by this certification:
1. Were produced in {SELECT ONE OF THE FOLLOWING COUNTRIES: KINGDOM OF CAMBODIA, MALAYSIA, THE KINGDOM OF THAILAND, OR THE SOCIALIST REPUBLIC OF VIETNAM} using parts and components manufactured in the People's Republic of China;
2. Were exported to the United States from {SELECT ONE OF THE FOLLOWING COUNTRIES: KINGDOM OF CAMBODIA, MALAYSIA, THE KINGDOM OF THAILAND, OR THE SOCIALIST REPUBLIC OF VIETNAM} without further assembly in another country; and
3. Are not covered by: (a) the antidumping duty or countervailing duty orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China; or (b) the antidumping duty order on certain crystalline silicon photovoltaic products from Taiwan.
(E) This certification applies to the following sales to {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER} (repeat this block as many times as necessary):
(F) I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
(G) I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES}is required to provide the U.S. importer with a copy of this certification and is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with a copy of this certification, and any supporting documents, upon the request of either agency.
(H) I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce.
(I) I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the antidumping and countervailing duty cash deposits determined by Commerce; and
(iii) the seller/exporter no longer being allowed to participate in the certification process.
(J) I understand that agents of the seller/exporter, such as freight forwarding companies or brokers, are not permitted to make this certification.
(K) This certification was completed and signed, and a copy of the certification was provided to the importer, on, or prior to, the date of shipment if the shipment date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
(L) I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
I hereby certify that:
(A) My name is {IMPORTING COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF IMPORTING COMPANY}, located at {ADDRESS OF IMPORTING COMPANY}.
(B) I have direct personal knowledge of the facts regarding importation of the solar cells and solar modules produced in Vietnam that were entered into the Customs territory of the United States under the entry summary number(s) identified below which are covered by this certification. “Direct personal knowledge” refers to the facts the certifying party is expected to have in its own records. For example, the importer should have direct personal knowledge of the exporter and/or seller's identity and location.
(C) If the importer is acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
The solar cells and/or solar modules covered by this certification were imported by {NAME OF IMPORTING COMPANY} on behalf of {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER}.
If the importer is not acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
{NAME OF IMPORTING COMPANY} is not acting on behalf of the first U.S. customer.
(D) The solar cells and/or solar modules covered by this certification were shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM THE MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
(E) I have personal knowledge of the facts regarding the production and exportation of the solar cells and modules identified below. “Personal knowledge” includes facts obtained from another party, (
(F) The solar cells and/or solar modules covered by this certification were:
1. Sold to the United States by Boviet Solar Technology Co., Ltd.
2. Exported to the United States by Boviet Solar Technology Co., Ltd.
3. Produced in Vietnam by Boviet Solar Technology Co., Ltd., using wafers manufactured in the People's Republic of China that were exported to Vietnam by Ningbo Kyanite International Trade Co., Ltd.
(G) The U.S. Department of Commerce (Commerce) found that solar cells and/or solar modules produced by Boviet Solar Technology Co., Ltd., using wafers manufactured in China that were exported by the wafer supplier listed in item F above, and exported by Boviet Solar Technology Co., Ltd. are not circumventing the antidumping duty and countervailing duty orders on
(H) This certification applies to the following entries (repeat this block as many times as necessary):
(I) I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
(J) I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of the exporter's certification (attesting to information regarding the production and/or exportation of the imported merchandise identified above), and any supporting documentation provided to the importer by the exporter, until the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.
(K) I understand that {NAME OF IMPORTING COMPANY} is required to provide U.S. Customs and Border Protection (CBP) and/or Commerce with the importer certification, and any supporting documentation, and a copy of the exporter's certification, and any supporting documentation provided to the importer by the exporter, upon the request of either agency.
(L) I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce.
(M) I understand that failure to maintain the required certifications and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the antidumping duty and countervailing duty cash deposits determined by Commerce; and
(iii) the importer no longer being allowed to participate in the certification process.
(N) I understand that agents of the importer, such as brokers, are not permitted to make this certification.
(O) This certification was completed and signed on, or prior to, the date of the entry summary if the entry date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
(P) I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
The party that made the sale to the United States should fill out the exporter certification.
I hereby certify that:
(A) My name is {COMPANY OFFICIAL'S NAME} and I am an official of Boviet Solar Technology Co., Ltd., located at B5, B6, Song Khe Industrial Zone, Noi Hoang District Bac Giang Province, Vietnam;
(B) I have direct personal knowledge of the facts regarding the production and exportation of the solar cells and solar modules for which sales are identified below. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, an exporter should have direct personal knowledge of the producer's identity and location.
(C) The solar cells and/or solar modules covered by this certification were shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
(D) The solar cells and/or solar modules covered by this certification were:
1. Sold to the United States by Boviet Solar Technology Co., Ltd.
2. Exported to the United States by Boviet Solar Technology Co., Ltd.
3. Produced in Vietnam by Boviet Solar Technology Co., Ltd. using wafers manufactured in the People's Republic of China (China) that were exported to Vietnam by Ningbo Kyanite International Trade Co., Ltd.
(E) The U.S. Department of Commerce (Commerce) found that solar cells and/or solar modules produced by Boviet Solar Technology Co., Ltd., using wafers manufactured in China that were exported by the wafer supplier listed in item D above, and exported by Boviet Solar Technology Co., Ltd. are not circumventing the antidumping duty and countervailing duty orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China.
(F) This certification applies to the following sales to {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER} (repeat this block as many times as necessary):
(G) I understand that Boviet Solar Technology Co., Ltd. is required to maintain a copy of this certification and sufficient documentation supporting this certification (
(H) I understand that Boviet Solar Technology Co., Ltd. is required to provide the U.S. importer with a copy of this certification and is required to provide U.S. Customs and Border Protection (CBP) and/or Commerce with a copy of this certification, and any supporting documents, upon the request of either agency.
(I) I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce.
(J) I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the antidumping and countervailing duty cash deposits determined by Commerce; and
(iii) the seller/exporter no longer being allowed to participate in the certification process.
(K) I understand that agents of the exporter, such as freight forwarding companies or brokers, are not permitted to make this certification.
(L) This certification was completed and signed, and a copy of the certification was provided to the importer, on, or prior to, the date of shipment if the shipment date is more
(M) I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
I hereby certify that:
(A) My name is {IMPORTING COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF IMPORTING COMPANY}, located at {ADDRESS OF IMPORTING COMPANY}.
(B) I have direct personal knowledge of the facts regarding importation of the solar cells and solar modules produced in {COUNTRY} that were entered into the Customs territory of the United States under the entry summary number(s) identified below which are covered by this certification. “Direct personal knowledge” refers to the facts the certifying party is expected to have in its own records. For example, the importer should have direct personal knowledge of the exporter and/or seller's identity and location.
(C) If the importer is acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
The solar cells and/or solar modules covered by this certification were imported by {NAME OF IMPORTING COMPANY} on behalf of {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER}.
If the importer is not acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
{NAME OF IMPORTING COMPANY} is not acting on behalf of the first U.S. customer.
(D) The solar cells and/or solar modules covered by this certification were shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM THE MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
(E) I have personal knowledge of the facts regarding the production and exportation of the solar cells and modules identified below. “Personal knowledge” includes facts obtained from another party, (
(F) If the imported products covered by this certification are solar cells that are not in solar modules or products that contain solar cells that are not in a solar module, then the importer certifies that the solar cells produced in {COUNTRY} that are covered by this certification were not manufactured using wafers produced in China, regardless of whether sourced directly from a Chinese producer or from a downstream supplier.
(G) If the imported products covered by this certification are solar modules or products that contain solar modules, then the importer certifies that the solar modules produced in {COUNTRY} that are covered by this certification were not manufactured using wafers produced in China, regardless of whether sourced directly from a Chinese producer or from a downstream supplier, or the solar modules produced in {COUNTRY} that are covered by this certification were manufactured using wafers produced in China but no more than two of the following inputs that were used to manufacture the solar modules were produced in China, regardless of whether sourced directly from a Chinese producer or from a Chinese downstream supplier:
(H) The solar cells and/or solar modules covered by this certification are not covered by: (a) the antidumping duty or countervailing duty orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China; or (b) the antidumping duty order on certain crystalline silicon photovoltaic products from Taiwan.
(I) This certification applies to the following entries (repeat this block as many times as necessary):
(J) I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
(K) I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of the exporter's certification (attesting to information regarding the production and/or exportation of the imported merchandise identified above), and any supporting documentation provided to the importer by the exporter, until the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.
(L) I understand that {NAME OF IMPORTING COMPANY} is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with the importer certification, and any supporting documentation, and a copy of the exporter's certification, and any supporting documentation provided to the importer by the exporter, upon the request of either agency.
(M) I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce.
(N) I understand that failure to maintain the required certifications and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the antidumping duty and countervailing duty cash deposits determined by Commerce; and
(iii) the importer no longer being allowed to participate in the certification process.
(O) I understand that agents of the importer, such as brokers, are not permitted to make this certification.
(P) This certification was completed and signed on, or prior to, the date of the entry summary if the entry date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
(Q) I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
The party that made the sale to the United States should fill out the exporter certification.
I hereby certify that:
(A) My name is {COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES}, located at {ADDRESS OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES};
(B) I have direct personal knowledge of the facts regarding the production and exportation of the solar cells and solar modules for which sales are identified below. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, an exporter should have direct personal knowledge of the producer's identity and location.
(C) The solar cells and/or solar modules covered by this certification were shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
(D) If the exported products covered by this certification are solar cells that are not in solar modules or products that contains solar cells that are not in a solar module, then the seller certifies that the solar cells produced in {COUNTRY} that are covered by this certification were not manufactured using wafers produced in China, regardless of whether sourced directly from a Chinese producer or from a downstream supplier.
(E) If the exported products covered by this certification are solar modules or products that contain solar modules, then the seller certifies that the solar modules produced in {COUNTRY} that are covered by this certification were not manufactured using wafers produced in China, regardless of whether sourced directly from a Chinese producer or from a downstream supplier, or the solar modules produced in {COUNTRY} that are covered by this certification were manufactured using wafers produced in China but no more than two of the following inputs that were used to manufacture the solar modules were produced in China, regardless of whether sourced directly from a Chinese producer or from a Chinese downstream supplier:
(F) The solar cells and/or solar modules covered by this certification are not covered by: (a) the antidumping duty or countervailing duty orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China; or (b) the antidumping duty order on certain crystalline silicon photovoltaic products from Taiwan.
(G) This certification applies to the following sales to {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER} (repeat this block as many times as necessary):
(H) I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
(I) I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES}is required to provide the U.S. importer with a copy of this certification and is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with a copy of this certification, and any supporting documents, upon the request of either agency.
(J) I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce.
(K) I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the antidumping and countervailing duty cash deposits determined by Commerce; and
(iii) the seller/exporter no longer being allowed to participate in the certification process.
(L) I understand that agents of the seller/exporter, such as freight forwarding companies or brokers, are not permitted to make this certification.
(M) This certification was completed and signed, and a copy of the certification was provided to the importer, on, or prior to, the date of shipment if the shipment date is after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
(N) I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On July 29, 2022, the U.S. Department of Commerce (Commerce) published a notice of a preliminary scope determination and affirmative preliminary circumvention determination in the
Applicable December 1, 2022.
Kabir Archuletta, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2593.
In the
On November 30, 2022, Commerce issued a memorandum via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS) notifying interested parties that it was extending the deadline for certifications of entries on or after June 17, 2020, and until August 28, 2022, until thirty days after the deadline for the final determination of this inquiry. Accordingly, unless the final determination is extended, certifications of entries on or after June 17, 2020, and until August 28, 2022, will be due by March 2, 2023.
In addition, after considering interested party comments to date, Commerce is considering modifying its eligibility determination and allowing 22 of the companies that Commerce precluded from participating in the certification program in the
In the event of an affirmative final determination, Commerce intends to instruct CBP to liquidate all suspended entries from June 17, 2020, through December 31, 2021, pursuant to the previously issued automatic liquidation instructions (ALIs) applicable to those periods.
Entries made on or after January 1, 2022, that are ineligible for certification (from the 22 companies that failed to cooperate, the 14 companies that failed to respond, or for other reasons) shall remain subject to suspension until final assessment on those entries, whether by ALIs, or final results of administrative review.
This notice is issued and published in accordance with section 781(b) of the Tariff Act of 1930, as amended and 19 CFR 351.225(f) and (h).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of incidental harassment authorization.
NMFS has received a request from the City of Ketchikan, Alaska (COK) for the reissuance of a previously issued incidental harassment authorization (IHA) with the only change being effective dates. The initial IHA authorized take of nine species of marine mammals, by Level A and Level B harassment, incidental to construction.
This authorization is effective from October 1, 2023, through September 30, 2024.
An electronic copy of the final 2021 IHA previously issued to the COK, the Navy's application, and the
Rob Pauline, Office of Protected Resources, NMFS, (301) 427-8401.
The construction is associated with the Berth III New Mooring Dolphins Project in Ketchikan, AK (March 3, 2021; 86 FR12411). The project has already been delayed by one year and NMFS had reissued the IHA to the COK (September 10, 2021; 86 FR 50704). None of the work covered in the initial IHA has been conducted. The initial IHA was effective from October 1, 2021, through September 30, 2022. The first reissued IHA was effective from October 1, 2022, through September 30, 2023. The COK has requested a subsequent reissuance of the IHA with new effective dates of October 1, 2023, through September 30, 2024. The scope of the activities and anticipated effects remain the same, authorized take numbers are not changed, and the required mitigation, monitoring, and reporting remains the same as included in the initial IHA. NMFS is, therefore, issuing an identical IHA to cover the incidental take analyzed and authorized in the initial IHA.
Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
On March 3, 2021, NMFS published final notice of our issuance of an IHA authorizing take of marine mammals incidental to the Berth III New Mooring Dolphins Project (86 FR 12411). The effective dates of that IHA were October 1, 2021, through September 30, 2022. On July 21, 2021, the COK informed NMFS that the project would be delayed by one year and requested a reissuance of the initial IHA. NMFS sent the reissued IHA to the COK on September 2, 2021 with effective dates of October 1, 2022, through September 30, 2023 (September 10, 2021; 86 FR 50704). None of the work identified in the initial IHA (
The planned activities (including mitigation, monitoring, and reporting), authorized incidental take, and anticipated impacts on the affected stocks are the same as those analyzed and authorized through the previously issued initial IHA and the first reissued IHA.
The purpose of the COK's Berth III construction project is to accommodate a new fleet of large cruise ships (
Species that are expected to be taken by the planned activity include humpback whale (
We refer to the documents related to the previously issued IHA, which include the
The COK will conduct activities as analyzed in the initial 2021 IHA. As described above, the number of authorized takes of the same species and stocks of marine mammals are identical to the numbers that were found to meet the negligible impact and small numbers standards and authorized under the initial IHA and no new information has emerged that would change those findings. The reissued 2023 IHA includes identical required mitigation, monitoring, and reporting measures as the initial IHA, and there is no new information suggesting that our analysis or findings should change.
Based on the information contained here and in the referenced documents, NMFS has determined the following: (1) the required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) the Navy's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Because the only change to the IHA are effective dates, the CE on record for issuance of the initial IHA applies to this action.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
The effects of this proposed Federal action were adequately analyzed in NMFS' Biological Opinion for the Berth III New Mooring Dolphins Project, dated February 11, 2021, which concluded that the take NMFS proposed to authorize through this IHA would not jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify any designated critical habitat.
NMFS has issued an IHA to the COK for in-water construction activities associated with the specified activity from October 1, 2023, through September 30, 2024. All previously described mitigation, monitoring, and reporting requirements from the initial 2021 IHA are incorporated.
Consumer Product Safety Commission.
Notice.
As required by the Paperwork Reduction Act of 1995 (PRA), the Consumer Product Safety Commission (CPSC) requests comments on a proposed extension of approval of a collection of information for the Publicly Available Consumer Product Safety Information Database. The CPSC will consider all comments received in response to this notice before requesting an extension of approval of this collection of information from the Office of Management and Budget (OMB).
Submit written or electronic comments on the collection of information by February 6, 2023.
You may submit comments, identified by Docket No. CPSC-2010-0041, by any of the following methods:
For further information, or a copy of the supporting statement, contact: Cynthia
Section 212 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) added section 6A to the Consumer Product Safety Act (CPSA), which requires the CPSC to establish and maintain a publicly available, searchable database (Database) on the safety of consumer products and other products or substances regulated by the CPSC. Among other things, section 6A of the CPSA requires the CPSC to collect reports of harm from the public for potential publication in the publicly available Database, and to collect and publish comments from manufacturers about reports of harm.
In a proposed rule published on May 24, 2010 (75 FR 29156), the CPSC announced that a proposed collection of information in conjunction with the Database, called the Publicly Available Consumer Product Safety Information Database, had been submitted to OMB for review and clearance under 44 U.S.C. 3501-3520. The CPSC issued a final rule on the Database on December 9, 2010 (75 FR 76832). The final rule interprets various statutory requirements in section 6A of the CPSA pertaining to the information to be included in the Database. The final rule also establishes provisions regarding submitting reports of harm; providing notice of reports of harm to manufacturers; publishing reports of harm and manufacturer comments in the Database; and dealing with confidential and materially inaccurate information.
OMB approved the collection of information for the Database under control number 3041-0146. OMB's most recent extension of approval, issued on March 31, 2020, will expire on March 31, 2023. Accordingly, the CPSC now proposes to request an extension of approval of this collection of information.
The primary purpose of this information collection is to populate the publicly searchable Database of consumer product safety information mandated by section 6A of the CPSA. The Database information collection has four components: reports of harm, manufacturer comments, branding information, and the Small Batch Manufacturer Registry (SBMR).
A manufacturer or private labeler may request that the CPSC designate information in a report of harm as confidential. Such a request may be made using the business portal, by email, by mail, or by fax. Additionally, any person or entity reviewing a report of harm or comment from a manufacturer or private labeler, either before or after publication in the Database, may request that the report or comment, or portions of the report or comment, be excluded from the Database because it contains materially inaccurate information. Such a request may be made by manufacturers or private labelers using the business portal, by email, mail or fax, and may be submitted by anyone else by email, mail, or fax.
We
Based on the data set forth in Tables 1 and 2 above, the annual reporting cost is estimated to be $443,089. This estimate is based on the sum of two estimated total figures for reports of harm and manufacturer or private labeler submissions. The estimated number of respondents and responses are based on the actual responses received in FY 2022. We assume that the number of responses and respondents will be similar in future years.
We had previously estimated the time associated with the electronic and telephone submission of reports of harm at 12 and 10 minutes, respectively; and because we have had no indication that these estimates are not appropriate or accurate, we used those figures for present purposes as well. We estimate that the time associated with a paper or PDF form would be 20 minutes, on average.
To estimate the costs for submitting reports of harm, we multiplied the estimated total burden hours associated with reports of harm (1,304 hours + 229 hours + 366 hours = 1,899 hours) by an estimated total compensation for all workers in private industry of $38.61 per hour,
To estimate the burden associated with submitting a general comment regarding a report of harm through the business portal, we averaged the burden provided by each company within each group, and then we calculated a weighted average from the three groups, weighting each group by the proportion of comments received from that group. We found that the average time to submit a general comment regarding a report of harm is 117 minutes, based on the data in Table 3 (((15 minutes + 45 minutes + 30 minutes + 15 minutes)/4 companies)*.31 + ((105 minutes + 45 minutes + 150 minutes + 15 minutes)/4 companies)*.39 + ((240 minutes + 60 minutes + 480 minutes)/3 companies)*.30 = 117 minutes).
Registered businesses generally submit comments through the CPSC website. Unregistered businesses submit comments by mail, email, or fax. We estimate that submitting comments via mail, email, or fax takes a little longer because often, we must ask businesses to amend their submissions to include the required certifications. Thus, we estimated that, on average, comments submitted by mail, email, or fax take 30 minutes longer than comments submitted through the CPSC website (117 minutes + 30 minutes = 147 minutes).
The submission of a claim of materially inaccurate information is a relatively rare event for all respondents, so we averaged all responses together. Eight of the businesses contacted had submitted claims of materially inaccurate information. We found that the average time to submit a claim that a report of harm contains a material inaccuracy is 165 minutes ((30 minutes + 90 minutes + 45 minutes + 90 minutes + 60 minutes + 660 minutes + 45 minutes + 300 minutes)/8 companies = 165 minutes).
Registered businesses generally submit claims of materially inaccurate information through the business portal. Unregistered businesses submit such claims by mail, email, or fax. We estimate that submitting claims via mail, email, or fax takes a little longer because we often must ask businesses to amend their submission to include the required certifications. Thus, we estimate that, on average, claims submitted by mail, email, or fax take 30 minutes longer than those submitted through the CPSC website (165 minutes + 30 minutes = 195 minutes).
The submission of a claim of confidential information is another relatively rare event for all respondents, so we averaged all responses together. Five of the businesses contacted had submitted claims of confidential information. We found that the average time to submit a claim that a report of harm contains confidential information through the CPSC website is 42 minutes ((45 minutes + 15 minutes + 60 minutes + 30 minutes + 60 minutes)/5 companies = 42 minutes).
Registered businesses generally submit confidential information claims through the business portal. Unregistered businesses submit confidential information claims by mail, email, or fax. We estimate that submitting claims by mail, email, or fax takes a little longer because often, we must ask businesses to amend their submission to include the required certifications. Thus, we estimate that a confidential information claim submitted by mail, email, or fax would take 30 minutes longer than those submitted through the CPSC website (42 minutes + 30 minutes = 72 minutes).
For voluntary brand identification, we estimate that a response would take 10 minutes, on average. Most responses consist only of the brand name and a product description. In many cases, a business will submit multiple entries in a brief period of time, and we can see from the date and time stamps on these records that an entry often takes less than 2 minutes. CPSC staff enters the same data in a similar form, based on our own research, and that experience was also factored into our estimate.
For small batch manufacturer identification, we estimate that a response would take 10 minutes, on average. The form consists of three check boxes and the information should be readily accessible to the respondent.
The responses summarized in Table 2 are generally submitted by manufacturers. To avoid underestimating the cost associated with the collection of this data, we assigned the higher hourly wage associated with a manager or professional in goods-producing industries to these tasks. To estimate the cost of manufacturer submissions, we multiplied the estimated total burden hours in Table 2 (5,125 hours), by an estimated total compensation for a manager or professional in goods-producing industries of $72.15 per hour,
Therefore, the total estimated annual cost to respondents is $443,089 ($73,320 burden for reports of harm + $369,769 burden for manufacturer submissions = $443,089).
We estimate the annualized cost to the CPSC to be $981,516. This figure is based on the costs for four categories of work for the Database: Reports of Harm, Materially Inaccurate Information Claims, Manufacturer Comments, and Small Batch Identification. Each category is described below. No government cost is associated with firms' voluntary brand identification because this information is entered directly into the Database by the manufacturer with no processing required by the government. The information assists the government in directing reports of harm to the correct manufacturer. Because we only have one request to treat information as confidential in FY 2022, we included the government's time to process this claim with the claims of materially inaccurate information.
The Reports of Harm category also includes sending consent requests for reports when necessary, processing that consent when received, determining whether a product is out of CPSC's jurisdiction, and confirming that pictures and attachments do not have any personally identifiable information. The Reports of Harm category also entails notifying manufacturers or private labelers when one of their products is reported, completing a risk of harm determination form for every report eligible for publication, referring some reports to a subject matter expert within the CPSC for a determination whether the reports meet the requirement of having a risk of harm, and determining whether a report meets all the statutory and regulatory requirements for publication. Detailed costs are:
We estimate the annualized cost to the CPSC of $958,533, by adding the four categories of work related to the Database summarized in Tables 4 through 7 (Reports of Harm ($789,459) + MII Claims ($79,632) + Manufacturer Comments ($13,320) + Small Batch Identification ($76,122) = $958,533).
This information collection renewal request is based on an estimated 7,024 burden hours per year for the Database, which represents a decrease of 6,319 hours since this collection of information was last approved by OMB in 2019. Total burden from reports of harm decreased by 4,647 hours (from 6,546 to 1,899), and total burden for manufacturer's submission decreased by 1,672 hours, from 6,797 to 5,125. Declines in total burden hours are attributed to a decline in the number of reports of harm submitted by mail, email, and fax. However, CPSC staff discovered that the 2019 update for this control number contained an error that increased the estimated burden, by inadvertently including a large number of death certificates collected by CPSC staff in the reports of harm submitted by mail, email, and fax. In addition, for this update there was a decrease in small batch manufacturer activity.
The CPSC solicits written comments from all interested persons about the proposed collection of information. The CPSC specifically solicits information relevant to the following topics:
• Whether the collection of information described above is necessary for the proper performance of the CPSC's functions, including whether the information would have practical utility.
• Whether the estimated burden of the proposed collection of information is accurate.
• Whether the quality, utility, and clarity of the information to be collected could be enhanced.
• Whether the burden imposed by the collection of information could be minimized by using automated, electronic, or other technological collection techniques, or other forms of information technology.
Department of Defense (DoD).
Committee renewal of federal advisory committee.
The DoD is publishing this notice to announce that it is renewing the Department of Defense Wage Committee (“the DoD Wage Committee”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-697-1142.
The DoD Wage Committee is being renewed, pursuant to 5 CFR 532.227(a), as directed by 5 U.S.C. 5343(c), and in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C., Appendix) and 41 CFR 102-3.50(c), and as part of the renewal process, the DoD is filing a new DoD Wage Committee charter along with its membership balance plan. The charter and contact information for the DoD Wage Committee's Designated Federal Officer (DFO) are found at
The DoD Wage Committee provides independent advice and recommendations on matters relating to the conduct of wage surveys and the establishment of wage schedules for all appropriated fund and non-appropriated fund wage areas. The DoD Wage Committee, as directed by 5 CFR 532.209 and 532.227 and the Office of Personnel Management Operating Manual, Federal Wage System, Appropriated and Non-Appropriated Funds, S3-2 Agency Level, provides the Secretary of Defense or the Deputy Secretary of Defense (“the DoD Appointing Authority”), through the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), independent advice and recommendations on all matters relating to the conduct of wage surveys and the establishment of wage schedules for all appropriated fund and non-appropriated fund wage areas of blue-collar employees within the Federal Wage System.
The DoD Wage Committee shall: (a) consider and makes recommendations to the DoD on any matter involved in developing specifications for a wage survey on which the DoD proposes not to accept the recommendations of a local wage survey committee and any matters on which a minority report has been filed; (b) consider the survey data, upon completion of a wage survey, of the local wage survey committee's report and recommendations, and the statistical analyses and proposed pay schedules derived from them, as well as any other data or recommendations pertinent to the survey, and recommends wage schedules to the pay-fixing authority; and (c) have a majority of the DoD Wage Committee to constitute a decision and recommendation of the DoD Wage Committee, but a member of the minority may file a report with the DoD Wage Committee's recommendations. All DoD Wage Committee work will be in response to written terms of reference approved by the DoD Appointing Authority or the USD(P&R), unless otherwise provided by in statute or Presidential directive.
The DoD Wage Committee; pursuant to 5 CFR 532.227(b), shall consist of five members, with the chairperson and two members designated by the head of the DoD. Of the remaining two members, pursuant to 5 CFR 532.227(b)(1), one member shall be designated by each of the two labor organizations having the largest number of wage employees covered by exclusive recognition in the DoD. The other two members shall have management backgrounds.
The appointment of DoD Wage Committee members will be approved by the DoD Appointing Authority, for a term of service of one-to-two years, with
DoD Wage Committee members who are full-time or permanent part-time Federal civilian officers or employees, or active duty members of the Uniformed Services, shall be appointed pursuant to 41 CFR 102-3.130(a) to serve as regular government employee members. As determined by the DoD Appointing Authority, the individuals designated by each of the two labor organizations having the largest number of wage employees covered by exclusive recognition in the DoD shall be appointed pursuant to 41 CFR 102-3.130(a) to serve as representative members consistent with 5 CFR 532.227(b)(1). Individual members who are appointed to serve as representative members shall represent the views of their designated labor organizations. All other members of the DoD Wage Committee are appointed to exercise their own best judgment on behalf of the DoD, without representing any particular point of view, and to discuss and deliberate in a manner that is free from conflict of interest. With the exception of reimbursement of official DoD Wage Committee-related travel and per diem, DoD Wage Committee members serve without compensation.
The DoD Appointing Authority shall appoint the DoD Wage Committee's leadership from among the membership previously approved to serve on the DoD Wage Committee in accordance with DoD policy and procedures for a term of service of one-to-two years, with annual renewal, not to exceed the member's approved appointment.
The public or interested organizations may submit written statements to the DoD Wage Committee membership about the DoD Wage Committee's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the DoD Wage Committee. All written statements shall be submitted to the DFO for the DoD Wage Committee, and this individual will ensure that the written statements are provided to the membership for their consideration.
Take notice that November 22, 2022, National Fuel Gas Supply Corporation (National Fuel) filed a prior notice request for authorization, in accordance with 18 CFR Sections 157.205, 157.208, 157.210 and 157.216 of the Federal Energy Regulatory Commission's (Commission) regulations under the Natural Gas Act and National Fuel's blanket certificate issued in Docket No. CP83-4-000 to construct, own, and operate (1) approximately 2.4 miles of new 12-inch-diamet pipeline and appurtenances on the Line SNY Lateral; (2) replace approximately 6.4 miles of 12-inch-diameter vintage bare steel pipe on Line SNY; (3) abandon approximately 8.1 miles of 12-inch-diameter vintage bare steel pipe; and (4) increase the maximum allowable operating pressure of Line SNY. All of the facilities are located in Erie County, New York. National Fuel estimates that the cost of the project will be approximately $30 million, all as more fully set forth in the application which is on file with the Commission and open for public inspection.
In addition to publishing the full text of this document in the
Any questions concerning this application should be directed to Margaret Sroka, Senior Attorney, National Fuel Gas Supply Corporation, 6363 Main Street, Williamsville, New York 14221, by telephone at (716) 857-7066, or by email at
Pursuant to Section 157.9 of the Commission's Rules of Practice and Procedure,
There are three ways to become involved in the Commission's review of this project: you can file a protest to the project, you can file a motion to intervene in the proceeding, and you can file comments on the project. There is no fee or cost for filing protests, motions to intervene, or comments. The deadline for filing protests, motions to intervene, and comments is 5:00 p.m. Eastern Time on January 31, 2023. How to file protests, motions to intervene, and comments is explained below.
Pursuant to section 157.205 of the Commission's regulations under the NGA,
Protests must comply with the requirements specified in section 157.205(e) of the Commission's
Any person has the option to file a motion to intervene in this proceeding. Only intervenors have the right to request rehearing of Commission orders issued in this proceeding and to subsequently challenge the Commission's orders in the U.S. Circuit Courts of Appeal.
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
All timely, unopposed motions to intervene are automatically granted by operation of Rule 214(c)(1). Motions to intervene that are filed after the intervention deadline are untimely and may be denied. Any late-filed motion to intervene must show good cause for being late and must explain why the time limitation should be waived and provide justification by reference to factors set forth in Rule 214(d) of the Commission's Rules and Regulations. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies (paper or electronic) of all documents filed by the applicant and by all other parties.
Any person wishing to comment on the project may do so. The Commission considers all comments received about the project in determining the appropriate action to be taken. To ensure that your comments are timely and properly recorded, please submit your comments on or before January 31, 2023. 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.
There are two ways to submit protests, motions to intervene, and comments. In both instances, please reference the Project docket number CP23-19-000 in your submission.
(1) You may file your protest, motion to intervene, and comments by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your submission by mailing it to the address below. Your submission must reference the Project docket number CP23-19-000.
The Commission encourages electronic filing of submissions (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail or email (with a link to the document) at: Margaret Sroka, Senior Attorney, National Fuel Gas Supply Corporation, 6363 Main Street, Williamsville, New York 14221; or email at
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
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission staff may attend the following meetings:
Further information regarding these meetings may be found at:
The discussions at the meetings, which are open to the public, may address matters at issue in the following Commission proceeding:
For further information, please contact Jonathan First, 202-502-8529, or
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, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-725J (Definition of the Bulk Electric System), which will be submitted to the Office of Management and Budget (OMB). The Commission published a 60-day notice in the
Comments on the collection of information are due January 9, 2023.
Send written comments on FERC 725J to OMB through
Please submit copies of your comments (identified by Docket No. IC22-35-000 and the form) to the Commission as noted below. Electronic filing through
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• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery.
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Please reference the specific collection number(s) and/or title(s) in your comments.
Ellen Brown may be reached by email at
—Legal (code 23-0000), $145.35
—File Clerks (code 43-4071), $34.38
—Electrical Engineer (code 17-2071), $77.02
The average hourly burden cost for this collection is $85.58 [($145.35 + $34.38 + $ 77.02)/3 = $85.58] and is rounded to $86.00 an hour.
Take notice that on November 15, 2022, Empire Pipeline, Inc. submitted a request for waiver of the Federal Energy Regulatory Commission's (Commission) requirement to provide its certified public accountant (CPA) certification statement for the 2022 FERC Form No. 2 on the basis of the calendar year ending December 31.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
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:
On June 9, 2022, Stonecat Hydro, LLC, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility the Lower Swanton Dam Hydroelectric Project No. 15280 (project), to be located on the Missisquoi River in the Town of Swanton, Franklin County, Vermont. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) an existing dam (Swanton Dam) that includes: (a) a west abutment that includes two 8-foot-long, 8-foot-high wooden headgates; and (b) an approximately 330-foot long spillway that would be retrofitted with: (i) 2-foot-high flashboards with a crest elevation of 110.0 feet mean sea level (msl) at the top of the flashboards; and (ii) a new 60-foot-long, 100-foot-wide reinforced concrete powerhouse at the east end of the spillway that includes three 283-kilowatt (kW) turbine-generator units, with a total installed capacity of approximately 850 kW; (2) an impoundment with a surface area of approximately 180 acres at an elevation of 110 feet msl; (3) a new 60-foot-long, 100-foot-wide intake structure that includes a reinforced concrete forebay and trashrack upstream of the new powerhouse; (4) a new 150-foot-long, 60-foot wide bedrock and reinforced concrete tailrace; (5) a new 12.47-kilovolt transmission line that would connect the turbine-generators to the local distribution grid; (6) a new fish passage facility that would utilize an approximately 300-foot-long, existing canal downstream of the west abutment; (7) an existing parking lot to provide access to project facilities; and (8) appurtenant facilities. The estimated annual generation of the Lower Swanton Dam Hydroelectric Project would be 3,580 megawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's website at
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.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
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 staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the Cameron LNG Amended Expansion Project, proposed by Cameron LNG, LLC (Cameron LNG) in the above-referenced docket. Cameron LNG requests several design modifications and enhancements to the approved Cameron Expansion Project at its existing liquified natural gas (LNG) terminal located in Cameron and Calcasieu Parishes, Louisiana.
The EA assesses the potential environmental effects of the construction and operation of the Cameron LNG Amended Expansion Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the proposed project amendment, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The U.S. Department of Energy, U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration, and U.S. Coast Guard participated as cooperating agencies in the preparation of the EA. Cooperating agencies have jurisdiction by law or special expertise with respect to resources potentially affected by the proposal and participate in the NEPA analysis.
Cameron LNG proposes to amend its authorization under section 3 of the Natural Gas Act for the Cameron Expansion Project that was issued by the Commission on May 5, 2016 (Docket No. CP15-560-000). Specifically, Cameron LNG proposes to modify the approved Train 4 and perform associated design enhancements; and to no longer construct Train 5 or Tank 5. In addition, Cameron LNG proposes an additional design enhancement to allow for the capability to simultaneously load two LNG vessels at a rate of 12,000 cubic meters/hour at both the North and South Jetties. The proposed amendment is intended to increase the overall reliability and capacity of Train 4 and eliminate impacts from construction and operation of Train 5. The overall maximum production capacity of the Amended Expansion Project would be reduced from 9.97 to 6.75 million tonnes per annum.
The Commission mailed a copy of the
The EA is not a decision document. It presents Commission staff's independent analysis of the environmental issues for the Commission to consider when addressing the merits of all issues in this proceeding. Any person wishing to comment on the EA may do so. Your comments should focus on the EA's disclosure and discussion of potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that the Commission has the opportunity to consider your comments prior to making its decision on this project, it is important that we receive your comments in Washington, DC on or before 5:00 p.m. Eastern Time on January 3, 2023.
For your convenience, there are three methods you can use to file 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 eComment feature on the Commission's website (
(2) You can also file your comments electronically using the eFiling feature on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP22-41-000) 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.
Filing environmental comments will not give you intervenor status, but you do not need intervenor status to have your comments considered. Only intervenors have the right to seek rehearing or judicial review of the Commission's decision. At this point in this proceeding, the timeframe for filing timely intervention requests has expired. Any person seeking to become a party to the proceeding must file a motion to intervene out-of-time pursuant to Rule 214(b)(3) and (d) of the Commission's Rules of Practice and Procedures (18 CFR 385.214(b)(3) and (d)) and show good cause why the time limitation should be waived. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
This notice provides the Federal Energy Regulatory Commission staff's revised schedule for completion of the final environmental impact statement (EIS) for Alliance Pipeline L.P.'s (Alliance) Three Rivers Interconnection Project. The first notice of schedule, issued on February 10, 2022, identified September 16, 2022 as the final EIS issuance date. The Project would be located in the vicinity of a facility regulated by the Nuclear Regulatory Commission which required the completion of a safety analysis to determine if the action would impact safe operation of the facility.
If a schedule change becomes necessary, an additional notice will be provided so that the relevant agencies are kept informed of the project's progress.
In order to receive notification of the issuance of the EIS and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
On November 17, 2021, Rio Grande LNG, LLC filed an application in Docket No. CP22-17-000 requesting a Limited Amendment to Rio Grande LNG, LLC's November 22, 2019 Authorization pursuant to Section 3 of the Natural Gas Act. The proposed project is known as the Carbon Capture and Sequestration System Amendment (Project) and would incorporate carbon capture and sequestration (CCS) systems into the site and design of the Rio Grande LNG Terminal, which was previously approved by the Commission on November 22, 2019.
On November 29, 2021, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's environmental document for the Project.
This notice identifies Commission staff's intention to prepare an environmental assessment (EA) for the Project and the planned schedule for the completion of the environmental review.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
The Project would incorporate CCS systems into the approved site and design of the Rio Grande LNG Terminal in Cameron County, Texas. The proposed CCS facilities consist of the following: flue gas cooling and carbon dioxide absorption, dehydration, and compression equipment; amine regenerator and reboiler; and hot oil system.
On September 2, 2022, the Commission issued a
The U.S. Army Corps of Engineers is a cooperating agency in the preparation of the EA.
In order to receive notification of the issuance of the EA and to keep track of formal issuances and submittals in specific dockets, 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
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following foreign utility company status 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 Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it can further reduce the information collection burden for small business concerns with fewer than 25 employees.
Written comments and recommendations for the proposed information collection should be submitted on or before January 9, 2023.
Comments should be sent to
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) go to the web page
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
The information collection requirements contained in 47 CFR 74.784(b) require that a licensee of a low power television or TV translator station shall not rebroadcast the programs of any other TV broadcast station without obtaining prior consent of the station whose signals or programs are proposed to be retransmitted. Section 74.784(b) requires licensees of low power television and TV translator stations to notify the Commission when rebroadcasting programs or signals of another station. This notification shall include the call letters of each station rebroadcast. The licensee of the low power television or TV translator station shall certify that written consent has been obtained from the licensee of the station whose programs are retransmitted.
Lastly, the information collection requirements contained in 47 CFR 74.1284 require that the licensee of a FM translator station obtain prior consent to rebroadcast programs of any broadcast station or other FM translator. The licensee of the FM translator station must notify the Commission of the call letters of each station rebroadcast and must certify that written consent has been received from the licensee of that station. Also, AM stations are allowed to use FM translator stations to rebroadcast the AM signal.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before February 6, 2023. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
Federal Deposit Insurance Corporation (FDIC).
Notice of renewal of the FDIC Advisory Committee on Economic Inclusion.
Pursuant to the provisions of the Federal Advisory Committee Act (FACA), and after consultation with the General Services Administration, the Chairman of the Federal Deposit Insurance Corporation has determined that renewal of the FDIC Advisory Committee on Economic Inclusion (the Committee) is in the public interest in connection with the performance of duties imposed upon the FDIC by law.
Ms. Debra A. Decker, Committee Management Officer of the FDIC, at (202) 898-8748.
The Committee has been a successful undertaking by the FDIC and has provided valuable feedback to the agency on important initiatives focused on expanding access to banking services for underserved populations. The Committee will continue to provide advice and recommendations on initiatives to expand access to banking services for underserved populations. The Committee will continue to review various issues that may include, but not be limited to, basic retail financial services such as low-cost, sustainable transaction accounts, savings accounts, small dollar lending, prepaid cards, money orders, remittances, the use of new technologies, and other services to promote access to the mainstream banking system, asset accumulation, and financial stability. The structure and responsibilities of the Committee are unchanged from when it was originally established in November 2006. The Committee will continue to operate in accordance with the provisions of the Federal Advisory Committee Act, 5 U.S.C. App. 2.
Tuesday, December 13, 2022 at 10 a.m. and its continuation at the conclusion of the open meeting on December 15, 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 concerning participation in civil actions or proceedings or arbitration.
Judith Ingram, Press Officer. Telephone: (202) 694-1220.
Federal Housing Finance Agency.
30-Day notice of submission of information collection for approval from Office of Management and Budget.
The Federal Housing Finance Agency (FHFA), as part of its continuing effort to reduce paperwork and respondent burden, invites public comments on an information collection titled the “Affordable Housing Program,” as required by the Paperwork Reduction Act of 1995 (PRA). FHFA intends to submit to the Office of Management and Budget (OMB) the information collection (assigned control number 2590-0007 by OMB) for review and approval of a reinstatement of the control number, which has expired.
Interested persons may submit comments on or before January 9, 2023.
Submit comments to the Office of Information and Regulatory Affairs of the Office of Management and Budget, Attention: Desk Officer for the Federal Housing Finance Agency, Washington, DC 20503, Fax: (202) 395-3047, Email:
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We will post all public comments we receive without change, including any personal information you provide, such as your name and address, email address, and telephone number, on the FHFA website at
Copies of all comments received will be available for examination by the public through the electronic comment docket for this PRA Notice also located on the FHFA website.
Eric Howard, Principal Policy Analyst,
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from 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) to include agency requests or requirements that ten or more persons submit information to a third party. FHFA's collection of information set forth in this document is titled the “Affordable Housing Program” (assigned control number 2590-0007 by OMB). To comply with the PRA requirement, FHFA is publishing notice of a proposed three-year extension of this collection of information and reinstatement of the control number, which has expired.
Section 10(j) of the Federal Home Loan Bank Act (Bank Act) requires FHFA to promulgate regulations under which each of the 11 Federal Home Loan Banks (Banks) must establish an Affordable Housing Program (AHP) to provide subsidy to the Bank's member institutions to finance: (1) homeownership by households with incomes at or below 80 percent of the area median income (low- or moderate-income households); and (2) the purchase, construction, or rehabilitation of rental housing in which at least 20 percent of the units will be occupied by, and affordable for, households with incomes at 50 percent or less of the area median income (very low-income households).
FHFA's AHP regulation, which implements the statutory AHP requirements, is set forth at 12 CFR part 1291. The regulation requires that each Bank establish and fund an AHP and sets forth the parameters within which the Banks' programs must operate. The regulation permits the Banks a degree of discretion in determining how their individual programs are to be implemented and requires that each Bank adopt an AHP Implementation Plan setting forth the specific requirements for that Bank's program.
The AHP regulation requires each Bank to establish a General Fund, which is a competitive application program under which the Bank accepts applications for AHP subsidized advances or direct subsidies (grants) submitted by its members on behalf of non-member entities having a significant connection to the projects for which subsidy is being sought (project sponsors).
The regulation provides that, prior to each disbursement of AHP subsidy for a project approved under a Bank's competitive application program(s), the Bank must verify that the project continues to meet applicable AHP regulatory eligibility requirements, as well as all commitments made in the approved AHP application.
If the project sponsor cannot cure the noncompliance within a reasonable period of time, the regulation permits a Bank to approve a modification to the terms of an approved application that would change the score that the application received for the funding period in which it was originally scored and approved, had the changed facts been operative at that time. Before a Bank approves a modification: (i) the project, incorporating the changes, must continue to meet the regulatory eligibility requirements; (ii) the application, as reflective of the changes, must continue to score high enough to have been approved in the funding period in which it was originally scored and approved; and (iii) there must be good cause for the modification, and the analysis and justification for the modification must be documented by the Bank in writing.
The regulation requires generally that a Bank monitor owner-occupied and rental projects receiving AHP subsidy under its competitive application program(s) prior to and after project completion. During the initial monitoring period, a Bank must determine whether the project is making satisfactory progress towards completion, in compliance with the commitments made in the approved application, Bank policies, and applicable AHP regulatory requirements. Following project completion, the Bank must determine whether satisfactory progress is being made towards occupancy of the project by eligible households.
The AHP regulation also authorizes each Bank, in its discretion, to allocate up to the greater of $4.5 million or 35 percent of its annual required AHP contribution to establish homeownership set-aside programs for
FHFA's Data Reporting Manual (DRM) requires each Bank to submit to FHFA aggregate AHP information.
The Banks use the AHP information collected from Bank members and project sponsors to determine whether: (1) projects for which Bank members and project sponsors are seeking subsidies under the Banks' competitive application programs satisfy the applicable statutory and regulatory requirements and score highly enough in comparison with other applications submitted during the same funding period to be approved for AHP subsidies; (2) projects approved under the Banks' competitive application programs continue to meet the applicable AHP regulatory requirements and comply with the commitments made in the approved applications each time AHP subsidy is disbursed by the Banks, through their members, to the project sponsors; (3) requests for modifications of projects approved under the Banks' competitive application programs meet the AHP regulatory requirements for approval; (4) during the initial monitoring period, projects approved under the Banks' competitive application programs are making satisfactory progress towards completion, are making satisfactory progress towards occupancy of the projects by eligible households after completion, and, within a reasonable period of time after completion, are in compliance with the commitments made in the approved applications, Bank policies, and applicable AHP regulatory requirements; (5) during the long-term 15-year monitoring period, completed rental projects continue to comply with the household income targeting and rent commitments made in the approved applications; and (6) applications for direct subsidy under Banks' homeownership set-aside programs were approved, and the direct subsidies disbursed, in accordance with applicable AHP regulatory requirements.
FHFA uses the information required to be submitted by the Banks under the DRM to verify that the Banks' funding decisions, and the uses of the funds awarded, were consistent with statutory and regulatory requirements.
FHFA has analyzed each of the six facets of this information collection in order to estimate the hour burdens that the collection will impose upon Bank members and AHP project sponsors annually over the next three years. Based on that analysis, FHFA estimates that the total annual hour burden will be 92,599. The method FHFA used to determine the annual hour burden for each facet of the information collection is explained in detail below.
FHFA estimates that Bank members, on behalf of project sponsors, will submit to the Banks an annual average of 1,250 applications for AHP subsidies under the Banks' competitive application programs, and that the average preparation time for each application will be 24 hours. Therefore, the estimate for the total annual hour burden on members and project sponsors in connection with the preparation and submission of AHP competitive applications is 30,000 hours (1,250 applications × 24 hours).
FHFA estimates that Bank members, on behalf of project sponsors, will make an annual average of 345 submissions to the Banks documenting that projects approved under the Banks' competitive application programs continue to comply with applicable AHP regulatory eligibility requirements and all commitments made in the approved AHP applications at the time each AHP subsidy is disbursed to the project sponsors, and that the average preparation time for each submission will be 1 hour. Therefore, the estimate for the total annual hour burden on members and project sponsors in connection with the preparation and submission of these compliance submissions is 345 hours (345 submissions × 1 hour).
FHFA estimates that Bank members, on behalf of project sponsors, will submit to the Banks an annual average of 318 requests for modifications to projects that have been approved under the Banks' competitive application programs, and that the average preparation time for each request will be 2.5 hours. Therefore, the estimate for the total annual hour burden on members and project sponsors in connection with the preparation and submission of these modification requests is 795 hours (318 requests × 2.5 hours).
FHFA estimates that project sponsors will make an annual average of 265 submissions of documentation to the Banks for purposes of the Banks' initial monitoring of in-progress and recently completed projects approved under their competitive application programs, and that the average preparation time for each submission will be 5 hours. Therefore, the estimate for the total annual hour burden on project sponsors in connection with the preparation and submission of documentation required for initial monitoring of competitive application projects is 1,325 hours (265 submissions × 5 hours).
FHFA estimates that project sponsors will make an annual average of 3,178 submissions of documentation to the Banks for purposes of the Banks' long-term monitoring of completed rental
FHFA estimates that Bank members will submit to the Banks an annual average of 10,120 applications and required certifications for AHP direct subsidies under the Banks' homeownership set-aside programs, and that the average preparation time for those submissions will be 5 hours. Therefore, the estimate for the total annual hour burden on members in connection with the preparation and submission of homeownership set-aside program applications and certifications is 50,600 hours (10,120 applications/certifications × 5 hours).
In accordance with the requirements of 5 CFR 1320.8(d), FHFA published an initial notice and request for public comments regarding this information collection in the
Board of Governors of the Federal Reserve System.
Notice.
The Board of Governors of the Federal Reserve System (Board) is adopting changes to part II of the Federal Reserve Policy on Payment System Risk (PSR policy) substantially as proposed. The changes expand the eligibility of depository institutions to request collateralized intraday credit from the Federal Reserve Banks (Reserve Banks) while reducing administrative steps for requesting collateralized intraday credit. In addition, the Board is adopting changes to the PSR policy that clarify the eligibility standards for accessing uncollateralized intraday credit from Reserve Banks and modify the impact of a holding company's or affiliate's supervisory rating on an institution's eligibility to request uncollateralized intraday credit capacity. The Board is also adopting changes to part II of the PSR policy to support the deployment of the FedNow
The FedNow Service-related changes to the PSR policy and the changes related to the Overnight Overdrafts policy will become effective when Reserve Banks begin processing live transactions for FedNow Service participants (expected in 2023). The exact date will be announced on the Board's website. The remaining changes to part II of the PSR policy will become effective February 6, 2023.
Jason Hinkle, Deputy Associate Director (202-912-7805), Michelle Olivier, Lead Financial Institution Policy Analyst (202-452-2404), Brajan Kola, Senior Financial Institution Policy Analyst (202-736-5683); or Cody Gaffney, Attorney (202-452-2674), Legal Division, Board of Governors of the Federal Reserve System. For users of Telecommunications Device for the Deaf (TDD) only, please contact 202-263-4869.
To ensure the smooth functioning of payment and settlement systems, the Reserve Banks provide intraday credit (also known as daylight overdrafts) to depository institutions (institutions) with accounts at the Reserve Banks. Part II of the PSR policy outlines the methods that Reserve Banks use to control credit risk associated with providing intraday credit.
To be eligible for intraday credit, the PSR policy requires that an institution be financially healthy and be eligible for regular access to the discount window.
In 2008, the Board approved changes to part II of the PSR policy to encourage
Although the PSR policy's dual-pricing framework encourages institutions to collateralize their daylight overdrafts, collateralized capacity under the max cap program is not currently available for all institutions with a positive net debit cap. Specifically, institutions in the “exempt-from-filing” or “de minimis” cap categories (which do not require a self-assessment) are ineligible to request collateralized capacity under the max cap program. Likewise, institutions with a voluntary zero net debit cap, and institutions that the Reserve Banks have assigned a zero net debit cap, cannot request collateralized capacity under the max cap program.
Further, obtaining collateralized capacity under the max cap program requires institutions to undertake certain administrative steps and analysis. First, institutions must provide a business case outlining their need for collateralized capacity, and must submit a board of directors resolution approving the collateralized capacity, at least annually and whenever the institution modifies the amount of requested collateralized capacity.
Intraday overdrafts occur when an institution has a negative balance in its Federal Reserve account during the Fedwire® Funds Service business day. Overnight overdrafts occur when an institution has a negative account balance at the end of the Fedwire Funds Service business day. While the PSR policy addresses daylight overdrafts, the Overnight Overdrafts policy addresses overnight overdrafts.
To minimize Reserve Bank exposure to overnight overdrafts, the Overnight Overdrafts policy imposes a penalty fee to discourage institutions from incurring overnight overdrafts.
In 2019, the Board approved the FedNow Service, a new interbank 24x7x365 real-time gross settlement service with clearing functionality to support end-to-end instant payments in the United States.
Intraday credit from the Reserve Banks is currently available during the 22-hour business day that is based on the Fedwire Funds Service.
The close of the FedNow Service will align on all calendar days with the close of the Fedwire Funds Service.
On June 3, 2021, the Board published a notice in the
The proposal's comment period ended on August 2, 2021. The Board received thirteen comment letters from six trade organizations, two institutions, two payment services operators, one academic, one think tank, and one consulting firm. The remainder of this section describes in further detail each aspect of the proposal, summarizes and
For the reasons set forth below, the Board will adopt the proposed changes substantially as proposed. The FedNow Service-related changes to the PSR policy and the changes related to the Overnight Overdrafts policy will become effective when Reserve Banks begin processing live transactions for FedNow Service participants (expected in 2023). The exact date will be announced on the Board's website. The remaining changes to part II of the PSR policy will become effective February 6, 2023.
The Board proposed to modify the PSR policy to expand access to and reduce the administrative steps associated with requesting collateralized capacity. The Board explained in the request for comment that extending intraday credit to institutions on a collateralized basis generally poses less risk to the Reserve Banks and the payment system than extending intraday credit on an uncollateralized basis. As a result, expanding access to collateralized intraday credit could improve the effectiveness of Reserve Bank intraday credit as a liquidity tool without materially increasing credit risk to the Reserve Banks.
Specifically, the Board proposed to amend the PSR policy so that institutions, subject to Reserve Bank review and discretion, would be eligible to request collateralized capacity under the max cap program even if they have not first obtained a self-assessed net debit cap. Under the proposal, institutions with a cap category of “zero,” “exempt-from-filing,” or “de minimis” would be eligible to request collateralized capacity from their Reserve Banks.
The Board explained that, given the important role collateral plays in reducing credit risk to Reserve Banks, the eligibility criteria for requesting collateralized capacity should be less restrictive than the criteria for accessing uncollateralized capacity. As a result, under the proposal, some institutions that are not eligible to establish a positive net debit cap would be eligible to request collateralized capacity.
The Board also proposed to simplify the administrative steps associated with requesting and maintaining collateralized capacity under the max cap program. Specifically, the Board proposed to eliminate, in most circumstances, the requirement that an institution provide a written business case when requesting collateralized capacity. The Board also proposed to eliminate the requirement that an institution's board of directors submit an annual resolution approving its collateralized capacity.
Five commenters (two institutions, two trade organizations, and one payment services operator) supported the proposed changes related to collateralized capacity. One of these commenters, an institution, argued that the proposed changes would assist with liquidity planning and risk management. Another commenter, a trade organization, expressed support for these proposed changes and noted that expanding access to collateralized capacity would be helpful since community banks may need collateralized capacity in a 24x7x365 environment and as transaction levels increase. The commenter noted that historically, small institutions and community banks have not requested collateralized capacity.
Two commenters opposed the proposed changes related to collateralized capacity. One such commenter, a think tank, asserted that the changes would increase credit risk to Reserve Banks and would have a negative effect on the payment system. This commenter argued that an institution's supervisory ratings should remain a factor in determining the institution's eligibility to request collateralized capacity, suggesting that the proposal would lead to the most “credit-questionable or badly run” institutions obtaining collateralized capacity. The commenter also opposed the proposal to allow an institution to obtain collateralized capacity without obtaining a self-assessed net debit cap, submitting a business case, or providing an annual board of directors resolution. The commenter argued that these requirements provide important information to the Reserve Banks and require an institution's board and senior management to exercise oversight over the institution's participation in the payment system. The other commenter that opposed the proposed changes related to collateralized capacity, a consulting firm, expressed concern that the changes could exacerbate the already high demand for collateral accepted by Reserve Banks, particularly during periods of stress in the financial system, further increasing market volatility.
Two commenters did not oppose the proposed changes but requested clarifications or made recommendations related to collateralized capacity. One such commenter, an institution, recommended that the Board clarify the relationship between the collateral pledged to the discount window and collateral pledged to the Reserve Bank for intraday credit purposes. collateralized intraday credit capacity. Another commenter, also an institution, recommended that the Board simplify the max cap program by eliminating the existing streamlined max cap procedure used by highly capitalized FBOs.
For the reasons described below, the Board is adopting the changes related to collateralized credit as proposed, with some clarifications in response to the public comments.
Collateralized intraday credit poses less risk to Reserve Banks than uncollateralized intraday credit. The Board therefore believes that the criteria for requesting collateralized capacity should be more accommodative than the criteria for requesting uncollateralized capacity, and that an institution that is at least “undercapitalized” and eligible for regular access to the discount window should be eligible to request collateralized capacity from its Reserve Bank. At the same time, access to intraday credit capacity, both collateralized and uncollateralized, will remain at the discretion of the Reserve
Similarly, the Board does not believe that simplifying the administrative steps associated with requesting and maintaining collateralized capacity will increase risks to the Reserve Banks. The Reserve Banks have the discretion to request additional information when evaluating a request for collateralized capacity. In addition, the Reserve Banks will retain access to various sources of information outside of the self-assessment process—including supervisory information—to help evaluate the risks posed by institutions requesting collateralized capacity. The institution's board of directors will still be required to approve both the initial request for collateralized capacity and subsequent requests to increase the previously approved collateralized capacity.
Further, contrary to the comment from the consulting firm, the Board does not believe that expanding access to collateralized capacity is likely to lead to a shortage of collateral accepted by Reserve Banks for intraday credit or other purposes, even during periods of financial stress. The Reserve Banks accept a wide range of securities and loans as collateral for intraday credit and discount window purposes.
With respect to the relationship between collateralized intraday credit capacity and collateral pledged to the discount window, the Federal Reserve's collateral guidelines contain a detailed list of margins and acceptability criteria for securities and loans that can be pledged to Reserve Banks for both discount window and intraday credit purposes.
With respect to the streamlined max cap procedure for FBOs, the Board did not propose to eliminate these streamlined procedures. FBOs with an FBO PSR capital category of “highly capitalized” and a self-assessed net debit cap may use the streamlined procedure to obtain a max cap. These FBOs are not required to provide documentation of the business need or a board of directors resolution for collateralized capacity as long as the FBO remains highly capitalized and the requested total capacity is 100 percent or less of worldwide capital times the self-assessed cap multiple. Prior to modifying this aspect of the PSR policy, the Board believes that additional feedback from the public would be necessary in order to evaluate the impact on FBOs of changes to the streamlined max cap process. For these reasons, the Board is not adopting changes to the streamlined max cap process.
The Board proposed to amend the PSR policy to clarify when an institution is eligible for uncollateralized intraday credit capacity.
Specifically, the Board proposed to clarify that an institution's eligibility to adopt and maintain a positive net debit cap depends on an assessment of its creditworthiness, which results from the institution's (i) PCA designation or FBO PSR capital category, as applicable, and (ii) most recent supervisory ratings. The Board proposed to incorporate into the PSR policy the following table—which is based on an existing table in the Guide to the PSR policy—to clarify when institutions can request a positive net debit cap from a Reserve Bank.
The Board also proposed to modify the PSR policy so that low supervisory ratings of a parent or affiliate would not, in certain cases, result in an institution losing its positive net debit cap. Under the proposal, if an institution's holding company or affiliate is assigned a low supervisory rating, the institution would be eligible to request the “exempt-from-filing,” “de minimis,” or “average” cap categories, but not the “above average” or “high” cap categories.
The Board explained that the proposed changes would provide greater certainty to institutions and would allow the Reserve Banks to tailor intraday credit access in response to supervisory developments.
Six commenters (two institutions, a payment services operator, and three trade organizations) expressed support for the proposed changes aimed at clarifying access to uncollateralized capacity. The commenters stated that incorporating language from the Guide directly into the PSR policy would help simplify and clarify the eligibility criteria for requesting uncollateralized capacity from their Reserve Banks. The commenters also supported the proposed change that would allow an institution to maintain access to some uncollateralized capacity, up to and including the “average” cap category, despite the low supervisory ratings of a parent or affiliate. The commenters noted that providing a path to some uncollateralized capacity for these institutions is a welcome change that is likely to improve institutions' abilities to manage short-term liquidity shortfalls. Three of these six commenters, two trade organizations and an institution, urged the Board to ensure that the proposed changes do not increase the regulatory oversight or examination of institutions requesting uncollateralized capacity.
The Board did not receive any comments opposed to these aspects of the proposal.
The Board is adopting the changes related to uncollateralized intraday credit substantially as proposed.
The Board proposed changes to the PSR policy to align the policy with the deployment of the FedNow Service. In particular, the Board proposed to revise section II.A of the PSR policy to define the “business day” as the 24-hour duration beginning immediately after the previous day's regularly scheduled close of the Fedwire Funds Service and the FedNow Service, and ending with the regularly scheduled close of the Fedwire Funds Service and the FedNow Service.
Consistent with past changes to operating hours, the Board also proposed to revise the daylight overdraft fee calculations under section II.C of the PSR policy and the penalty fee calculations under section II.F of the PSR policy to reflect the 24-hour business day. Currently, daylight overdraft fees for uncollateralized overdrafts (also referred to as the daily daylight overdraft charge) are computed by multiplying two components: (a) the institution's average daily uncollateralized daylight overdraft (which is calculated by dividing the sum of uncollateralized daylight overdrafts at the end of each minute of the scheduled operating day of the Fedwire Funds Service by the total number of minutes in the operating day); and (b) the effective daily rate (50 basis points annual rate, multiplied by the fraction of a 24-hour day during which the Fedwire Funds Service is scheduled to operate, divided by 360 days).
Certain institutions are charged a daylight-overdraft penalty fee in lieu of the daily daylight overdraft charge.
Two commenters, one institution and one trade organization, supported the shift to the 24-hour business day. Eight commenters (one institution, one payment services operator, one payment standards organization, and five trade organizations) opposed the proposed changes aimed at aligning the PSR policy with the launch of the FedNow Service. Specifically, the commenters opposed the proposed changes to the extent the proposed changes would lead to an increase in daylight overdraft fees and penalty fees for institutions that do not opt to participate in the FedNow Service.
The Board acknowledges commenters' concerns regarding higher daylight overdraft and penalty fees. In response to these comments, the Board conducted additional analysis, and determined that both daylight overdraft and penalty fees would slightly decrease under the proposal, rather than slightly increase (as the proposal incorrectly stated). The Board reached out to the eight commenters that opposed the proposed fee changes to clarify the impact of the proposed changes. Three of these commenters (two trade organizations and one payment services operator) accepted the Board's invitation to discuss the proposed fee changes, and all of these commenters indicated that the concerns expressed in their respective comment letters regarding the proposed fee changes have been fully addressed.
As shown in the formula below, an institution's daily daylight overdraft charge is calculated by multiplying the average daily uncollateralized daylight overdraft by the truncated effective daily rate. As result of the shift from a 22-hour to a 24-hour business day, the two components of the daily daylight overdraft charge calculation are impacted in opposite directions. For an institution that incurs the same amount of end-of-minute overdrafts, the average daily uncollateralized daylight overdraft slightly decreases, while the effective daily rate slightly increases.
In the request for comment, the Board incorrectly stated that that the daily daylight overdraft charge would slightly increase. As shown in Example 1 below, the daily daylight overdraft charge will slightly decrease by approximately 0.3 percent before the application of fee waivers. This decrease results from the fact that the decrease in the average daily overdraft component more than offsets the increase in the effective daily rate component.
Similarly, and as shown in the formula below, an institution's daily daylight-overdraft penalty fee is calculated by multiplying the average daily collateralized and uncollateralized daylight overdraft by the truncated effective daily rate. As a result of the shift from 22-hours to a 24-hour business day, the two components of the daily daylight-overdraft penalty fee calculation are impacted in opposite directions. For an institution that incurs the same amount of end-of-minute overdrafts, the average daily collateralized and uncollateralized overdrafts slightly decrease, while the effective daily rate slightly increases.
As shown in Example 2 below, the gross daily penalty fee will decrease by approximately 0.1%. This decrease results from the fact that the decrease in the average daily collateralized and uncollateralized overdrafts component more than offsets the increase in the effective daily rate component.
Ultimately, the proposal would slightly lower fees for all institutions. In addition, because the effective daily rate and the daylight-overdraft penalty rate would be based on a 24-hour business day for all institutions, whether or not they participate in the FedNow Service, the proposal would ensure equitable treatment across all institutions. All institutions will be assessed the same fee for overdrafts of the same duration and size, regardless of participation in a particular service. For these reasons, the Board is adopting the proposed changes with the corrections discussed above.
The Board proposed to incorporate the Overnight Overdrafts policy as part III of the PSR policy. Under the proposal, an institution would incur an overnight overdraft on each calendar day that its account balance is negative at 7:00:59 p.m. ET, which is the newly proposed close of the business day.
In addition, the Board proposed to eliminate the automatic multiday charge for overnight overdrafts during weekends or holidays. Under the proposal, all institutions, regardless of the Reserve Bank payment services that they use, will incur an overnight overdraft penalty charge for each calendar day, including weekends and holidays, that an overnight overdraft is outstanding.
Finally, the Overnight Overdrafts policy includes a fee-escalation feature where the penalty fee for an overnight overdraft increases by one percentage point for each overnight overdraft after an institution has already experienced three overnight overdrafts in a rolling 12-month period. The Board proposed to eliminate the overnight overdraft fee-escalation feature for all institutions. The Board explained that the fee-escalation feature adds unnecessary complexity to the Overnight Overdrafts policy and does not meaningfully reduce risk to the Reserve Banks. In addition, the Board noted that the escalation feature is rarely triggered since overnight overdrafts are uncommon, and the Reserve Banks have other risk-mitigation tools for institutions that incur frequent overnight overdrafts.
Three trade organizations supported the proposed changes to the Overnight Overdrafts policy. One of these commenters argued that incorporating the Overnight Overdrafts policy as part III of the PSR policy would underscore the close relationship between daylight overdrafts and overnight overdrafts in an institution's account. The remaining two commenters supported the elimination of the fee-escalation feature of the Overnight Overdrafts policy.
A payment standards organization raised concerns with the proposal, arguing that the proposed changes would disadvantage financial institutions that do not participate in the FedNow Service because institutions that do not participate in the FedNow Service would continue to incur an automatic multiday charge for overnight overdrafts occurring before a weekend or a holiday.
The Board believes that overnight overdrafts pose a credit risk to the Reserve Banks since there is no assurance that overnight overdrafts are
Institutions that opt to participate in the FedNow Service's full set of features for sending and receiving instant payment transactions involving end-user customers or institutions that will use the FedNow liquidity management feature to support the private-sector instant payment service can have activity in their master accounts during weekends and holidays. Automatically applying a multiday overnight overdraft charge may not accurately reflect the number of calendar-day overnight overdrafts incurred by these institutions. For example, a FedNow Service participant might incur an overnight overdraft on a Friday evening but not on the following Saturday or Sunday, in which case the FedNow service participant would be charged for one calendar day of overnight overdrafts. Conversely, a FedNow Service participant might not incur an overnight overdraft on Friday evening but might then incur overnight overdrafts on Saturday and Sunday, in which case the FedNow Service participant would be charged for two calendar days of overnight overdrafts. This is also true of participants in the private-sector instant payment service.
By comparison, institutions that do not elect to participate in the FedNow Service or the private-sector instant payment service will not have activity in their master accounts over the weekends and holidays. These institutions will not be eligible to use the FedNow liquidity management feature since the feature is only available to support instant payments. Accordingly, if an institution that does not participate in the FedNow Service or in the private-sector instant payment service incurs an overnight overdraft before a weekend or a holiday, the overnight overdraft will persist during each calendar day that falls on a weekend or holiday. A multiday charge will accurately reflect the number of calendar days that the overnight overdraft is outstanding.
The Board is adopting the changes related to the Overnight Overdrafts policy as proposed and believes that the changes will simplify the policy while charging an overnight overdraft penalty fee for the actual number of calendar days that the overnight overdraft is outstanding.
The Board also proposed several technical changes and corrections to the PSR policy.
In addition to the comments described above, nine commenters provided recommendations related to topics on which the Board did not seek comment and that were not part of the proposed changes. These commenters included two institutions, one academic, two payment services operators, and four trade organizations.
Most of these comments focused on recommendations about the FedNow Service, including (i) expanding the availability of the liquidity management transfer feature beyond supporting instant payments and adding certain controls to this feature,
A trade organization also recommended that the Board revisit the segmentation of net debit categories and the associated net debit cap multiples. At this time, the Board is not proposing changes regarding net debit cap categories or multiples.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Regardless of whether the RFA applies to the PSR policy per se, for the reasons discussed below, the Board certifies that the changes being adopted to the PSR policy will not have a significant economic impact on a substantial number of small entities.
The Board is adopting changes primarily to section II of the PSR policy, which governs the provision of intraday credit in accounts at the Reserve Banks. Thus, the changes will apply to small entities with accounts at the Reserve Banks that request intraday credit from the Reserve Banks. Pursuant to regulations issued by the SBA, financial institutions with less than $750 million in assets are considered small entities for purposes of the RFA.
Although the number of small entities to which the changes will apply is substantial, the Board does not believe that the changes will have a significant economic impact on these small entities. In particular, the changes being adopted to the PSR policy do not impose any mandatory reporting, recordkeeping, or other compliance requirements on entities of any size, including small entities. Rather, part II of the PSR policy applies where an institution voluntarily requests intraday credit from a Reserve Bank.
With respect to institutions that voluntarily request intraday credit from a Reserve Bank, the Board believes that the changes being adopted to the PSR policy regarding collateralized capacity will benefit, rather than burden, such institutions (including small entities) by expanding access to collateralized capacity and simplifying the administrative steps for requesting collateralized capacity. In addition, the Board does not expect the clarifications to the PSR policy related to uncollateralized intraday to result in additional compliance requirements. Similarly, the changes to section II of the PSR policy to support the deployment of FedNow should not result in additional compliance requirements. Rather, as noted above, fees for daylight overdrafts will be lower with the expansion of the business day from 22 hours to 24 hours. Similarly, the elimination of the fee-escalation feature of the Overnight Overdrafts policy will result in lower overnight overdraft fees.
When considering changes to an existing service, the Board conducts a competitive impact analysis to determine whether there will be a direct and material adverse effect on the ability of other service providers to compete effectively with the Federal Reserve in providing similar services due to differing legal powers or the Federal Reserve's dominant market position deriving from such legal differences.
In the proposal, the Board stated that it does not believe there would be adverse effects to other service providers resulting from the proposed changes to the PSR policy because the potential for additional collateralized intraday credit and uncollateralized intraday credit on a 24x7x365 basis afforded by the proposed changes could be used to fund payment activity in both the private-sector and Reserve Bank instant payment services. One commenter indicated that the competitive impact analysis was incomplete because in order to use intraday credit on a 24x7x365 basis, participants in the private-sector instant payment service would have to become participants in the competing service, the FedNow Service. This comment is in reference to the FedNow Service liquidity management feature, which will allow interbank transfers between the master accounts of FedNow Service participants or transfers between master accounts and a joint account at a Reserve Bank that backs activity in a private-sector instant payment service, for the purpose of supporting liquidity needs related to instant payments. In its 2020 notice announcing details of the FedNow Service, the Board indicated that participants in the private-sector instant payment service will be able to access the FedNow liquidity management feature even if they do not wish to sign up for the FedNow Service's full set of features for sending and receiving instant payment transactions involving end-user customers.
Relatedly, the commenter noted that it may be appropriate for the Board to consider whether a FedNow Service participant's ability to extinguish an overdraft during weekends or holidays creates a unique competitive advantage for the Federal Reserve by enabling FedNow Service participants to avoid overnight overdraft fees over weekends and holidays. The FedNow Service liquidity management feature will allow participants in the private-sector instant payment service to manage balances in their master accounts during weekends or holidays. Through the liquidity management feature, a participant in the private-sector instant payment service will be able to extinguish an overnight overdraft that occurs at the close of the business day Friday or before a holiday by transferring excess funds from the joint account backing the service to its master account, or by receiving funds in its master account through a funding agent. Thus, the Board believes there is no direct and material adverse effect to the ability of other service providers to compete with the Reserve Banks.
Finally, the commenter noted that the proposal to calculate overdrafts for all institutions based on a 24-hour day penalizes institutions that are not FedNow Service participants in that their daylight overdraft fees and penalty fees would be higher. As discussed earlier in this notice, fees will be lower under a 24-hour business day for all institutions, including institutions that do not participate in the FedNow Service.
In accordance with section 3512 of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA), the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Board reviewed the PSR policy changes being adopted under the authority delegated to the Board by the OMB and concluded that the proposed changes impact the information collection under OMB control number 7100-0217 (FR 2226).
The Board received no comments on the PRA analysis in the proposal.
The following portion titled “Federal Reserve Policy on Payment System Risk” will not be published in the Code of Federal Regulations.
The Board will revise Section II.A of the PSR policy as follows:
A daylight overdraft occurs when an institution's Federal Reserve account is in a negative position during the business day.
Post throughout the business day:
The term “interest and redemption payments” refers to payments of principal, interest, and redemption on securities maintained on the Fedwire Securities Service.
The Reserve Banks will post these transactions, as directed by the issuer, provided that the issuer's Federal Reserve account contains funds equal to or in excess of the amount of the interest and redemption payments to be made. In the normal course, if a Reserve Bank does not receive funding from an issuer for the issuer's interest and redemption payments by the established cut-off hour of 4:00 p.m. eastern time on the Fedwire Securities Service, the issuer's payments will not be processed on that day.
Post at the close of the Fedwire Funds Service and the FedNow Service
The Board will revise section II.C, paragraphs 3 and 4 of the “Federal Reserve Policy on Payment System Risk” as follows:
Daylight overdraft fees for uncollateralized overdrafts (or the uncollateralized portion of a partially collateralized overdraft) are calculated using an annual rate of 50 basis points, quoted on the basis of a 24-hour day and a 360-day year. The effective daily rate equals the annual rate divided by 360.
An institution's average daily uncollateralized daylight overdraft is calculated by dividing the sum of its negative uncollateralized Federal Reserve account balances at the end of each minute of the regularly-scheduled business day by the total number of minutes in the 24-hour business day. A negative uncollateralized Federal Reserve account balance is calculated by subtracting the unencumbered, net lendable value of collateral pledged from the total negative Federal Reserve account balance at the end of each minute. Each positive end-of-minute balance in an institution's Federal Reserve account is set to equal zero. Fully collateralized end-of-minute negative balances are similarly set to zero.
The Board will revise section II.D of the “Federal Reserve Policy on Payment System Risk” as follows:
Each institution incurring uncollateralized daylight overdrafts in its Federal Reserve account must adopt a net debit cap, that is, a ceiling on the total uncollateralized daylight overdraft position that it can incur during any given day. An institution's cap category and capital measure determine the size of its net debit cap. Specifically, the net debit cap is calculated as an institution's cap multiple times its capital measure:
Cap categories and their associated cap levels, set as multiples of an institution's capital measure, are listed below:
Pledging collateral does not increase an institution's net debit cap, although certain institutions may be eligible to obtain additional collateralized capacity in excess of their net debit caps (see section II.E). For the treatment of overdrafts that exceed the net debit cap, see section II.G.
While capital measures differ, the net debit cap provisions of this policy apply similarly to foreign banking organizations (FBOs) and to U.S. institutions. Consistent with practices for U.S.-chartered depository institutions, the Reserve Banks will advise home-country supervisors of the daylight overdraft capacity of U.S. branches and agencies of FBOs under their jurisdiction, as well as of other pertinent information related to the FBOs' caps. The Reserve Banks will also provide information on the daylight overdrafts in the Federal Reserve accounts of FBOs' U.S. branches and agencies in response to requests from home-country supervisors.
An institution must have regular access to the discount window in order to adopt a net debit cap greater than zero. Granting a net debit cap, or any extension of intraday credit, to an institution is at the discretion of the Reserve Bank. As detailed in the following matrix, an institution's eligibility to adopt and maintain a positive net debit cap depends on the institution's creditworthiness as determined by (1) its Prompt Corrective Action (PCA) designation
As described further in section II.D.2.a, an institution seeking to establish a net debit cap category of high, above average, or average must perform a self-assessment of its own creditworthiness, intraday funds management and control, customer credit policies and controls, and operating controls and contingency procedure. An institution that performs a self-assessment will be deemed ineligible for a positive net debit cap if its self-assessment results in the lowest possible rating for any one of the four components of the self-assessment process.
In order to establish a net debit cap category of high, above average, or average, an institution must perform a self-assessment of its own creditworthiness, intraday funds management and control, customer credit policies and controls, and operating controls and contingency procedures.
Some institutions that could obtain positive net debit caps choose to have zero caps. Often these institutions have very conservative internal policies regarding the use of Federal Reserve intraday credit. If an institution that has adopted a zero cap incurs a daylight overdraft, the Reserve Bank counsels the institution and may monitor the institution's activity in real time and reject or delay certain transactions that would cause an overdraft. If the institution qualifies for a positive cap, the Reserve Bank may suggest that the institution adopt an exempt-from-filing cap or file for a higher cap if the institution believes that it will continue to incur daylight overdrafts or overdrafts in excess of its assigned cap limit.
In addition, a Reserve Bank may assign an institution a zero net debit cap. Institutions that may pose special risks to the Reserve Banks, such as those without regular access to the discount window, those incurring daylight overdrafts in violation of this policy, those that are ineligible for intraday credit based on their supervisory rating and PCA designation/FBO PSR capital category (see section II.A), or those that are otherwise in weak financial condition are generally assigned a zero cap (see section II.F). Recently chartered institutions may also be assigned a zero net debit cap.
Certain institutions with zero caps, including institutions that have been involuntarily assigned a zero cap by a Reserve Bank, may be eligible to request collateralized capacity from their Reserve Bank (see sections II.E). * * *
The Board will revise section II.E of the “Federal Reserve Policy on Payment System Risk” as follows:
Subject to the approval of its administrative Reserve Bank, an eligible institution may pledge collateral to secure collateralized daylight overdraft capacity in addition to uncollateralized capacity from its net debit cap.
Once approved, the Reserve Bank will monitor the institution to ensure that it does not exceed its max cap. Pledging less collateral reduces an institution's effective maximum daylight overdraft capacity level, but pledging more collateral does not increase the maximum daylight overdraft capacity above the approved max cap level.
An institution that wishes to expand its daylight overdraft capacity by pledging collateral should consult with its administrative Reserve Bank. A domestic institution is eligible to request collateralized intraday credit if its PCA designation is “undercapitalized,” “adequately capitalized,” or “well capitalized.”
If an institution is requesting collateralized capacity for the first time, it must submit a resolution from its board of directors indicating its board's approval of the requested max cap. Increases to collateralized capacity previously approved by Reserve Banks will also require a board of directors resolution. In most cases, an institution will not have to provide to a Reserve Bank a business case justifying its request for collateralized capacity. However, an institution must provide a business-case justification if:
• The institution requests a max cap in excess of its capital measure multiplied by 2.25; or
• The administrative Reserve Bank exercises discretion to require that the institution submit a business-case justification due to recent developments in the institution's condition.
Once a Reserve Bank has approved an institution's collateralized capacity, the collateralized capacity will remain in place, without the need for further action by the institution, provided that the institution maintains the eligibility standards outlined above.
An FBO that is highly capitalized
The Board will revise section II.F, paragraphs 3 and 4 of the “Federal Reserve Policy on Payment System Risk” as follows:
Certain institutions are subject to a daylight-overdraft penalty fee levied against the average daily daylight overdraft incurred by the institution. These include Edge and agreement corporations, bankers' banks that are not subject to reserve requirements, and limited-purpose trust companies. The annual rate used to determine the daylight-overdraft penalty fee is equal to the annual rate applicable to the daylight overdrafts of other institutions (50 basis points) plus 100 basis points. The effective daily overdraft penalty rate equals the annual penalty rate divided by 360.
An overnight overdraft is a negative balance in a Federal Reserve account at the close of the business day. The Board expects institutions to avoid overnight overdrafts.
To minimize the Reserve Banks' exposure to overnight overdrafts, which are not always collateralized, the Board authorizes Reserve Banks to discourage depository institutions from incurring overnight overdrafts by charging a penalty fee. Institutions that do not extinguish their daylight overdrafts and incur overnight overdrafts are subject to ex post counseling in addition to a penalty fee.
The Board establishes the following penalty rate structure for overnight overdrafts:
1. An overnight overdraft penalty rate of the primary credit rate plus 4 percentage points (annual rate).
2. A minimum penalty fee of 100 dollars, regardless of the amount of the overnight overdraft. The minimum fee is administered per each occasion.
3. A charge for each calendar day (including weekends and holidays) that an overnight overdraft is outstanding.
By order of the Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board).
Notice and request for comment.
The Board is requesting comment on draft principles that would provide a high-level framework for the safe and sound management of exposures to climate-related financial risks for Board-supervised financial institutions with over $100 billion in assets. Although all financial institutions, regardless of size, may have material exposures to climate-related financial risks, these principles are intended for the largest financial institutions,
Comments on the draft principles must be received on or before February 6, 2023.
Interested parties are encouraged to submit written comments. When submitting comments, please consider submitting your comments by email or fax because paper mail in the Washington, DC area and at the Board may be subject to delay. You may submit comments, identified by Docket No. OP-1793, by any of the following methods:
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In general, all public comments will be made available on the Board's website at
Anna Lee Hewko, Associate Director, (202) 530-6260; Morgan Lewis, Manager, (202) 452-2000; Matthew McQueeney, Senior Financial Institution Policy Analyst II, (202) 452-2942 Katie Budd, Senior Financial Institution Policy Analyst I, (202) 452-2365; Susan Ali, Senior Financial Institution Policy Analyst I, (202) 452-3023; Division of Banking Supervision and Regulation; or Asad Kudiya, Assistant General Counsel, (202) 475-6358; Kelley O'Mara, Senior Counsel (202) 973-7497; Matthew Suntag, Senior Counsel, (202) 452-3694; or David Imhoff, Attorney, (202) 452-2249, Legal Division. Board of Governors of the Federal Reserve System, 20th and C Streets NW, Washington, DC 20551. For the hearing impaired and users of TTY-TRS, please call 711 from any telephone, anywhere in the United States.
The Board is requesting comment on draft principles that would provide a high-level framework for the safe and sound management of exposures to climate-related financial risks for financial institutions with over $100 billion in assets. The financial impacts that result from the economic effects of climate change and the transition to a lower carbon economy pose an emerging risk to the safety and soundness of financial institutions
Weaknesses in how financial institutions identify, measure, monitor, and control potential climate-related financial risks could adversely affect financial institutions' safety and soundness, as well as the stability of the overall financial system. The Board is therefore seeking comment on draft principles that would promote a consistent understanding of how climate-related financial risks can be effectively identified, measured, monitored, and controlled among the largest institutions, those with over $100 billion in total consolidated assets. Many financial institutions are considering these risks and would benefit from guidance as they develop strategies, deploy resources, and make necessary investments to manage climate-related financial risks.
The draft principles would provide a high-level framework for the safe and
The Board developed the proposed guidance in consultation with the Office of the Comptroller of the Currency (OCC) and Federal Deposit Insurance Corporation (FDIC). The OCC and FDIC requested comment on similar draft principles in December 2021 and March 2022, respectively. The agencies seek to promote consistency in their climate risk management guidance and to clearly articulate risk-based principles on climate-related financial risks for large financial institutions. Accordingly, after reviewing comments received on the proposed guidance, the Board intends to coordinate with the OCC and FDIC in issuing any final guidance.
The Board welcomes comments on all aspects of the draft principles, including on the following questions.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a current valid Office of Management and Budget (OMB) control number.
These draft principles would not revise any existing, or create any new, information collections pursuant to the PRA. Consequently, no submissions will be made to the OMB for review.
The financial impacts that result from the economic effects of climate change and the transition to a lower carbon economy pose an emerging risk to the safety and soundness of financial institutions
Physical and transition risks associated with climate change could affect households, communities, businesses, and governments—damaging property, impeding business activity, affecting income, and altering the value of assets and liabilities. These risks may be propagated throughout the economy and financial system. As a result, the financial sector may experience credit and market risks associated with loss of income, defaults and changes in the values of assets, liquidity risks associated with changing demand for liquidity, operational risks associated with disruptions to infrastructure or other channels, or legal risks.
Weaknesses in how a financial institution identifies, measures, monitors, and controls the physical and transition risks associated with a changing climate could adversely affect a financial institution's safety and soundness. The adverse effects of climate change could also include a potentially disproportionate impact on the financially vulnerable, including low- to moderate-income (LMI) and other disadvantaged households and communities.
These draft principles provide a high-level framework for the safe and sound management of exposures to climate-related financial risks, consistent with the existing risk management frameworks described in the Board's existing rules and guidance.
The principles are intended to support efforts by financial institutions to focus on key aspects of climate-related financial risk management. The principles are designed to help financial institutions' boards of directors and management make progress toward incorporating climate-related financial risks into financial institutions' risk management frameworks in a manner consistent with safe and sound practices. The principles are intended to supplement existing risk management standards and guidance on the role of boards and management.
Although all financial institutions, regardless of size, may have material exposures to climate-related financial risks, these principles are intended for the largest financial institutions, those with over $100 billion in total consolidated assets.
Through this and any subsequent climate-related financial risk guidance, the Board will continue to encourage financial institutions to manage climate-related financial risks in a manner that will allow them to continue to prudently meet the financial services needs of their communities. The Board encourages financial institutions to take a risk-based approach in assessing the climate-related financial risks associated with individual customer relationships and to take into consideration the financial institution's ability to manage the risk.
The board should oversee the financial institution's risk-taking activities and hold management accountable for adhering to the risk governance framework. The board should consider whether the incorporation of climate-related financial risks into the financial institution's overall business strategy and risk management frameworks may warrant changes to its compensation policies, taking into account that compensation policies should be aligned with the business, risk strategy, objectives, values, and long-term interests of the financial institution.
Management is responsible for implementing the financial institution's policies in accordance with the board's strategic direction and for executing the financial institution's overall strategic plan and risk governance framework. This responsibility includes assuring that there is sufficient expertise to execute the strategic plan and effectively managing all risks, including climate-related financial risks. This also includes management's responsibility to oversee the development and implementation of processes to identify, measure, monitor, and control climate-related financial risks within the financial institution's existing risk management framework. Management should also hold staff accountable for controlling risks within established lines of authority and responsibility. Management is responsible for regularly reporting to the board on the level and nature of risks to the financial institution, including climate-related financial risks. Management should provide the board with sufficient information for the board to understand the impacts of climate-related financial risks to the financial institution's risk profile and make sound, well-informed decisions. Where dedicated climate risk organizational structures are established by the board, management should clearly define these units' responsibilities and interaction with existing governance structures.
Any climate-related strategies and commitments should align with and support the financial institution's broader strategy, risk appetite, and risk management framework. In addition, where financial institutions engage in public communication of their climate-related strategies, boards and management should assure that any public statements about their institutions' climate-related strategies and commitments are consistent with their internal strategies and risk appetite statements.
As part of sound risk management, management should develop processes to measure and monitor material climate-related financial risks and to communicate and report the materiality of those risks to internal stakeholders. Material climate-related financial risk exposures should be clearly defined, aligned with the financial institution's risk appetite, and supported by appropriate metrics (
Tools and approaches for measuring and monitoring exposure to climate-related financial risks include, among others, exposure analysis, heat maps, climate risk dashboards, and scenario analysis. These tools can be leveraged to assess a financial institution's exposure to both physical and transition risks in both the shorter and longer term. Outputs should inform the risk identification process and the short- and long-term financial risks to a financial institution's business model from climate change.
Management should develop and implement climate-related scenario analysis frameworks in a manner commensurate to the financial institution's size, complexity, business activity, and risk profile. These frameworks should include clearly defined objectives that reflect the financial institution's overall climate-related financial risk management strategies. These objectives could include, for example, exploring the impacts of climate-related financial risks on the financial institution's strategy and business model, identifying and measuring vulnerability to relevant climate-related financial risk factors including physical and transition risks, and estimating climate-related exposures and potential losses across a range of scenarios, including extreme but plausible scenarios. A climate-related scenario analysis framework can also assist management in identifying data and methodological limitations and uncertainty in climate-related financial risk management and informing the adequacy of the institution's climate-related financial risk management framework.
Climate-related scenario analyses should be subject to oversight, validation, and quality control standards that would be commensurate to the financial institution's risk. Climate-related scenario analysis results should be clearly and regularly communicated to the board and all relevant individuals within the financial institution, including an appropriate level of information necessary to effectively convey the assumptions, limitations, and uncertainty of results.
A risk assessment process is part of a sound risk governance framework, and it allows management to identify emerging risks and to develop and implement appropriate strategies to mitigate those risks. Management should consider and incorporate climate-related financial risks when identifying and mitigating all types of risk. These risk assessment principles describe how climate-related financial risks can be addressed in various risk categories.
By order of the Board of Governors of the Federal Reserve System.
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
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 23, 2022.
1.
Board of Governors of the Federal Reserve System.
Federal Trade Commission.
Notice.
The Federal Trade Commission (“FTC” or “Commission”) is seeking public comment on its proposal to extend for an additional three years the Office of Management and Budget clearance for information collection requirements of its Affiliate Marketing Rule, which applies to certain motor vehicle dealers, and its shared enforcement with the Consumer Financial Protection Bureau (“CFPB”) of the provisions (subpart C) of the CFPB's Regulation V regarding other entities (“CFPB Rule”). The current clearance expires on February 28, 2023.
Comments must be received on or before February 6, 2023.
Interested parties may file a comment online or on paper by following the instructions in the Request for Comments part of the
David Walko, Attorney, Division of Privacy and Identity Protection, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580, (202) 326-2880.
As required by section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), the FTC is providing this opportunity for public comment before requesting that the Office of Management and Budget extend the existing clearance for the information collection requirements contained in the Affiliate Marketing Rule.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) was enacted on July 21, 2010.
As mandated by section 214 of the Fair and Accurate Credit Transactions Act (“FACT Act”), Public Law 108-159 (Dec. 6, 2003), the Affiliate Marketing
To minimize compliance costs and burdens for entities, particularly any small businesses that may be affected, the Rule contains model disclosures and opt-out notices that may be used to satisfy the statutory requirements. The Rule also gives covered entities flexibility to satisfy the notice and opt-out requirement. Covered entities may send the consumer a free-standing opt-out notice to satisfy the Rule's requirements or add the opt-out notice to privacy notices already provided to consumers, such as those provided in accordance with the provisions of Title V, subtitle A of the Gramm Leach Bliley Act (“GLBA”).
Under the PRA, 44 U.S.C. 3501-3521, the FTC is requesting that OMB renew the clearance (OMB Control Number 3084-0131) for the information collection burden associated with the Rule. Staff estimates that there are approximately 46,525 franchise/new car and independent/used car dealers in the U.S.
Staff assumes that all or nearly all motor vehicles subject to the Rule's provisions are also subject to the Commission's Privacy of Consumer Financial Information Rule under the Gramm-Leach-Bliley Act (16 CFR part 313) (“Privacy Rule”). Entities that are subject to the Commission's GLBA Privacy Rule already provide privacy notices to their customers. Absent an exception, financial institutions must provide an initial privacy notice at the time the customer relationship is established and then annually so long as the relationship continues. 15 U.S.C. 6803. Staff's estimates assume that in all or nearly all cases covered institutions will choose to incorporate the affiliate marketing opt-out notice into the initial and annual GLBA privacy notices. In 2015, Congress, as part of the FAST Act, amended the GLBA to provide an exception under which financial institutions that meet certain conditions are not required to provide annual notices to customers.
Staff estimates that the 1,559 covered motor vehicle business families will spend on average about 5 hours per year to comply with the Affiliate Sharing Rule beyond their separate obligations under the Privacy Rule, yielding a total annual hours of burden of 7,795 hours. Staff's estimates take into account the time necessary to determine compliance obligations; create the notice and opt-out, in either paper or electronic form; and disseminate the notice and opt-out. Staff's estimates presume that the availability of model disclosures and opt-out notices will simplify the compliance review and implementation processes, thereby significantly reducing the compliance burden.
Staff estimates the associated labor cost by adding the hourly mean private sector wages for managerial, technical, and clerical work and multiplying that sum by the estimated number of hours. The private sector hourly wages for these classifications are $59.31, $48.01, and $20.88, respectively.
Because the FACT Act and the Rule contemplate that the affiliate marketing notice can be included in the GLBA notices, the capital and non-labor cost burden on regulated entities would be greatly reduced. Covered entities typically already provide notices to their customers so there are no new capital or non-labor costs, as the Affiliate Marketing notice may be consolidated into their annual privacy notice. Thus, staff estimates that any capital or non-labor costs associated with compliance for these entities are
Pursuant to section 3506(c)(2)(A) of the PRA, the FTC invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, 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 maintaining records and providing disclosures to consumers. All comments must be received on or before February 6, 2023.
You can file a comment online or on paper. For the FTC to consider your comment, we must receive it on or before February 6, 2023. Write “Paperwork Reduction Act Comment: FTC File No. P072108” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including the
Due to the public health emergency in response to the COVID-19 outbreak and the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. We encourage you to submit your comments online through the
If you prefer to file your comment on paper, write “Paperwork Reduction Act Comment: FTC File No. P072108” 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 J), Washington, DC 20580; or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will become publicly available 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.
The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding, as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before February 6, 2023. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
General notice.
The Centers for Disease Control and Prevention (CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR), located within the Department of Health and Human Services (HHS) announces the availability of the final
The 2022 Guidelines are available December 8, 2022.
Amy Lavery, Centers for Disease Control and Prevention, National Center for Environmental Health, Division of Environmental Health Science and Practice, 4770 Buford Highway NE, Mailstop F-60, Atlanta, GA 30341; Telephone: 770-488-4024; Email:
CDC/ATSDR is announcing the availability of final
In the 2022 Guidelines, CDC/ATSDR has updated and expanded the 2013 Guidelines to provide STLT public health agencies and other interested parties with access to information about current scientific tools and approaches to assess and respond to potential unusual patterns of cancer in communities.
CDC/ATSDR developed the 2022 Guidelines using input from a variety of sources, including STLT public health agencies, subject matter experts from academia and non-governmental organizations, an internal CDC/ATSDR steering committee, public comments received from an announcement in the
On May 25, 2022 CDC/ATSDR published a notice in the
• Commenters stated the terms “cancer cluster” and “unusual patterns of cancer” were used interchangeably throughout the document without clear definition of both terms.
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• Commenters noted that it was unclear whether every proactive evaluation must result in the criteria assessment. Commenters questioned how the criteria assessment differs from the response from an incoming inquiry.
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• Commenters noted that the discussion of challenges and limitations was important to mention early in the guidelines document, rather than in later sections of the document.
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• Several comments were focused on clarifying phases and the intent of various criteria, as well as the need for examples to enhance clarity.
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CDC/ATSDR endeavored to improve clarity with respect to certain components of the criteria. For example, CDC/ATSDR changed step 8 of the criteria from “Is there known biologic plausibility of the cancer(s) of concern with suspected environmental contaminants in terms of disease etiology?” to “Is there a plausible pathway of exposure between the suspected environmental contaminants and the cancer(s) of concern in terms of disease etiology?” This change allowed for a clearer depiction of the intent of step 8 of the criteria.
• Some commenters raised the issue of how frequent and regular routine monitoring of cancer may place additional burdens on public health agency resources.
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• Commenters suggested that providing more references would be helpful.
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• Commenters noted that more guidance and instructions are needed on the use of the Cancer Inquiry intake form.
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• Commenters noted that more details and resources were needed on use of the standardized incidence ration, such as specific minimum thresholds.
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For more information about the process of updating the 2022 Guidelines, please visit
Food and Drug Administration, Health and Human Services (HHS).
Notice of availability.
The Food and Drug Administration (FDA, Agency, or we) is announcing the availability of a final guidance entitled “Recommendations to Reduce the Risk of Transfusion-Transmitted Malaria.” The guidance document provides blood establishments that collect blood and blood components with FDA's recommendations to reduce the risk of transfusion-transmitted malaria (TTM). The recommendations contained in the guidance apply to the collection of Whole Blood and blood components, except Source Plasma. The guidance announced in this notice supersedes the guidance entitled “Revised Recommendations to Reduce the Risk of Transfusion-Transmitted Malaria; Guidance for Industry” dated April 2020.
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:
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• 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 guidance to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 240-402-8010. See the
Jessica Gillum, 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 final guidance entitled “Recommendations to Reduce the Risk of Transfusion-Transmitted Malaria;
To address the urgent and immediate need for blood and blood components during the Coronavirus Disease 2019 (COVID-19) public health emergency, in April 2020 FDA issued revised recommendations to reduce the risk of TTM during the public health emergency. The recommendations in the April 2020 guidance were based on the Agency's evaluation of the available scientific and epidemiological data on malaria risk, and data on FDA-approved pathogen reduction devices. FDA stated in the April 2020 guidance that we expected implementation of the revised recommendations would not be associated with any adverse effect on the safety of the blood supply and that early implementation of the recommendations may help to address significant blood shortages that occurred as result of the COVID-19 public health emergency. Further, the guidance explained that we expected that the recommendations set forth in the revised guidance would continue to apply outside the context of the COVID-19 public health emergency, and that FDA would replace the April 2020 guidance with an updated guidance that incorporates any appropriate changes based on public comments and our experience with implementation. Although the April 2020 guidance stated that we intended to reissue the guidance within 60 days following the termination of the public health emergency, we are not delaying this issuance because the guidance represents our current thinking on the topic.
FDA is issuing this guidance for immediate implementation in accordance with our good guidance practices regulation (10.115(g)(3)) without initially seeking prior comment because the Agency has determined that prior public participation is not feasible or appropriate (see 10.115(g)(2) and section 701(h)(1)(C)(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371(h)(1)(C)(i))). Specifically, we are not seeking prior comment because the recommendations present a less burdensome policy for reducing the risk of transfusion-transmitted malaria that is consistent with public health, and interested parties have had the opportunity to comment on the recommendations in the April 2020 guidance. The recommendations, which are unchanged from the April 2020 guidance, will remain in effect outside of the context of the public health emergency related to COVID-19.
In the
The guidance represents the current thinking of FDA on “Recommendations to Reduce the Risk of Transfusion-Transmitted Malaria.” 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 601 and Form FDA 356h have been approved under OMB control number 0910-0338; 21 CFR parts 606 and 630 have been approved under OMB control number 0910-0116; and the collections of information for consignee and transfusion recipient physician notification have been approved under OMB control number 0910-0681.
Persons with access to the internet may obtain the guidance at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is withdrawing approval of 35 new drug applications (NDAs) from multiple applicants. The applicants notified the Agency in writing that the drug products were no longer marketed and requested that the approval of the applications be withdrawn.
Approval is withdrawn as of January 9, 2023.
Kimberly Lehrfeld, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6226, Silver Spring, MD 20993-0002, 301-796-3137,
The applicants listed in the table have informed FDA that these drug products are no longer marketed and have requested that FDA withdraw approval of the applications under the process in § 314.150(c) (21 CFR 314.150(c)). The applicants have also, by their requests, waived their opportunity for a hearing. Withdrawal of approval of an application or abbreviated application under § 314.150(c) is without prejudice to refiling.
Therefore, approval of the applications listed in the table, and all amendments and supplements thereto, is hereby withdrawn as of January 9, 2023. Approval of each entire application is withdrawn, including any strengths and dosage forms included in the application but inadvertently missing from the table. Introduction or delivery for introduction into interstate commerce of products without approved new drug applications violates section 301(a) and (d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 331(a) and (d)). Drug products that are listed in the table that are in inventory on January 9, 2023 may continue to be dispensed until the inventories have been depleted or the drug products have reached their expiration dates or otherwise become violative, whichever occurs first.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) has determined that NORFLEX (orphenadrine citrate) Injection, 30 milligrams (mg)/milliliter (mL), and NORFLEX (orphenadrine citrate) Extended-Release Tablet, 100 mg, were not withdrawn from sale for reasons of safety or effectiveness. This determination means that FDA will not begin procedures to withdraw approval of abbreviated new drug applications (ANDAs) that refer to this drug product, and it will allow FDA to continue to approve ANDAs that refer to the product as long as they meet relevant legal and regulatory requirements.
Anuj Shah, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6224, Silver Spring, MD 20993-0002, 301-796-2246,
Section 505(j) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 355(j)) allows the submission of an ANDA to market a generic version of a previously approved drug product. To obtain approval, the ANDA applicant must show, among other things, that the generic drug product: (1) has the same active ingredient(s), dosage form, route of administration, strength, conditions of use, and (with certain exceptions) labeling as the listed drug, which is a version of the drug that was previously approved and (2) is bioequivalent to the listed drug. ANDA applicants do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA).
Section 505(j)(7) of the FD&C Act requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products With Therapeutic Equivalence Evaluations,” which is known generally as the “Orange Book.” Under FDA regulations, drugs are removed from the list if the Agency withdraws or suspends approval of the drug's NDA or ANDA for reasons of safety or effectiveness or if FDA determines that the listed drug was withdrawn from sale for reasons of safety or effectiveness (21 CFR 314.162).
A person may petition the Agency to determine, or the Agency may determine on its own initiative, whether a listed drug was withdrawn from sale for reasons of safety or effectiveness. This determination may be made at any time after the drug has been withdrawn from sale, but must be made prior to FDA's approval of an ANDA that refers to the listed drug (§ 314.161 (21 CFR 314.161)). FDA may not approve an ANDA that does not refer to a listed drug.
NORFLEX (orphenadrine citrate) Injection, 30 mg/mL, is the subject of NDA 013055, held by Pai Holdings LLC DBA Pharmaceutical Associates Inc., and initially approved on October 2, 1960. NORFLEX (orphenadrine citrate) Extended-Release Tablet, 100 mg, is the subject of NDA 012157, held by Bausch Health US LLC, and initially approved on November 2, 1959. Both NORFLEX drug products are indicated as an adjunct to rest, physical therapy, and other measures for the relief of discomfort associated with acute painful musculoskeletal conditions.
Both NORFLEX (orphenadrine citrate) Injection, 30 mg/mL, and NORFLEX (orphenadrine citrate) Extended-Release Tablet, 100 mg, are currently listed in the “Discontinued Drug Product List” section of the Orange Book.
Odin Pharmaceuticals, LLC, submitted a citizen petition dated April 11, 2022 (Docket No. FDA-2022-P-0585), under 21 CFR 10.30, requesting that the Agency determine whether NORFLEX (orphenadrine citrate) Injection, 30 mg/mL, was withdrawn from sale for reasons of safety or effectiveness. Although the citizen petition did not address the 100 mg extended-release tablet, that dosage form and strength has also been discontinued. On our own initiative, we have also determined whether that dosage form and strength was withdrawn for safety or effectiveness reasons.
After considering the citizen petition and reviewing Agency records and based on the information we have at this time, FDA has determined under § 314.161 that NORFLEX (orphenadrine citrate) Injection, 30 mg/mL, and NORFLEX (orphenadrine citrate) Extended-Release Tablet, 100 mg, were not withdrawn for reasons of safety or effectiveness. The petitioner has identified no data or other information suggesting that these drug products were withdrawn for reasons of safety or effectiveness. We have carefully reviewed our files for records concerning the withdrawal of NORFLEX (orphenadrine citrate) Injection, 30 mg/mL, and NORFLEX (orphenadrine citrate) Extended-Release Tablet, 100 mg, from sale. We have also independently evaluated relevant literature and data for possible postmarketing adverse events. We have found no information that would indicate that these drug products were withdrawn from sale for reasons of safety or effectiveness.
Accordingly, the Agency will continue to list NORFLEX (orphenadrine citrate) Injection, 30 mg/mL, and NORFLEX (orphenadrine citrate) Extended-Release Tablet, 100 mg, in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” delineates, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness. FDA will not begin procedures to withdraw approval of approved ANDAs that refer to this drug product. Additional ANDAs for this drug product may also be approved by the Agency as long as they meet all other legal and regulatory requirements for the approval of ANDAs. If FDA determines that labeling for this drug product should be revised to meet
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by the Public Health Service (PHS) Act, as amended. While the Secretary of HHS is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact Lisa L. Reyes, Clerk of Court, United States Court of Federal Claims, 717 Madison Place NW, Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 08N146B, Rockville, Maryland 20857; (301) 443-6593, or visit our website at:
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to submit relevant, written information” relating to the following:
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the Table but which was caused by a vaccine” referred to in the Table.
In accordance with section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the United States Court of Federal Claims at the address listed above (under the heading
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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Federal Emergency Management Agency, Department of Homeland Security.
60-Day notice of revision and request for comments.
The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on an extension, with change, of a previously approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the collection of information related to the flood insurance claims process and the housing inspection damage assessment process.
Comments must be submitted on or before February 6, 2023.
To avoid duplicate submissions to the docket, please submit comments at
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Pertaining to claims forms, contact: Daniel Claire, Insurance Examiner, FEMA Resilience, (202) 552-9891 or
Pertaining to National Flood Insurance Program (NFIP) Direct claim forms, Congress created the NFIP through the National Flood Insurance Act of 1968 (NFIA) (Title XIII of Public Law 90-448, 82 Stat. 476), codified at 42 U.S.C. 4001
A prospective policyholder may purchase an NFIP flood insurance policy, known as a Standard Flood Insurance Policy (SFIP), either: (1) directly from the Federal Government through a direct servicing agent (referred to as “NFIP Direct”), or (2) from a participating private insurance company through the Write Your Own (WYO) Program.
All flood loss claims presented under the NFIP are paid directly with U.S. Treasury funds, regardless of whether the policy is issued by the NFIP Direct or by a WYO company. The information in the NFIP Direct collection includes all the data necessary to adjudicate claims for damages and provide SFIP benefits resulting from flood losses.
In addition to the requirements of the NFIA, section 205 of the Bunning-Bereuter-Blumenauer Flood Insurance Reform Act of 2004 (42 U.S.C. 4011 note) required FEMA to establish a claims appeals process.
Pertaining to housing inspections, also part of this collection, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), Public Law 93-288, as amended, is the legal basis for FEMA to provide financial assistance and services to individuals applying for disaster assistance benefits in the event of a Federally declared disaster. Regulations in 44 CFR 206.110—Federal Assistance to Individuals and Households implement the policy and procedures set forth in Section 408 of the Stafford Act, 42 U.S.C. 5174, as amended.
This program provides financial assistance and, if necessary, direct assistance to eligible individuals and households who, as a direct result of a major disaster or emergency, have uninsured or under-insured expenses, and serious needs, and are unable to meet such expenses or needs through other means.
Individuals and households applying for assistance must provide information detailing their losses and needs through the disaster assistance registration process covered under collection 1660-0002, Disaster Assistance Registration. If FEMA determines the applicant had home or personal property damage, has no insurance, or that the applicant's insurance coverage may not meet their needs, an inspection is needed to verify disaster caused damage.
All pertinent information for a specific applicant is stored under a unique registration identification (ID) within the National Emergency Management Information System (NEMIS). An inspection request occurs due to NEMIS-driven business rules (automatically), applicant request, or a FEMA caseworker request. The scope of an inspection for owners includes noting real and personal property (furnishing and appliances) damages to the interior and exterior of the dwelling, addressing special needs, transportation, unmet needs, and miscellaneous purchases. Inspectors do not note real property specifications for renters.
Once the inspector validates the information provided by the applicant during registration intake, the inspector begins an assessment of real and/or personal property damages utilizing Automated Construction Estimator (ACE) software. The same ACE software screens are used regardless of how the inspection occurs (
For this submission, FEMA identified two NFIP Direct claim forms in which necessary data could be combined or collected in other forms or systems, thereby eliminating the need for those forms, and reducing duplicative information collection. Accordingly, FEMA proposes to remove the following two forms from this collection: (1) FEMA Form FF-206-FY-21-113, Advance Payment Request—Building & Contents, and (2) FEMA Form FF-206-FY-21-114, Advance Payment Request—Increased Cost of Compliance (ICC).
Comments may be submitted as indicated in the
Bureau of Land Management, Interior.
Notice of call for nominations.
The purpose of this notice is to solicit public nominations for the Bureau of Land Management's (BLM) Wild Horse and Burro Advisory Board (Board) to fill two positions that became vacant on October 9, 2022. The Board provides advice concerning the management, protection, and control of wild free-roaming horses and burros on public lands administered by the Department of the Interior, through the Bureau of Land Management (BLM), and the Department of Agriculture, through the U.S. Forest Service.
All nominations must be post marked or submitted to the following addresses no later than January 23, 2023.
All nominations and completed packages sent via the U.S. Postal Service should be addressed as follows: Wild Horses and Burros Division, U.S. Department of the Interior, Bureau of Land Management, Attn: Dorothea Boothe, HQ-260, 9828 31st Avenue; Phoenix, AZ 85051.
All nominations and completed packages that are sent via FedEx or UPS should be addressed as follows: U.S. Department of the Interior, Bureau of Land Management, Wild Horses and Burros Division, Attn: Dorothea Boothe, 9828 31st Avenue, Phoenix, AZ 85051. Please consider emailing PDF documents to Ms. Boothe at
Dorothea Boothe, Wild Horse and Burro Program Coordinator, telephone: (602) 906-5543, email:
Members of the Board serve without compensation; however, while away from their homes or regular places of business, Board and subcommittee members engaged in Board or subcommittee business, approved by the Designated Federal Officer (DFO), may be allowed travel expenses, including per diem in lieu of subsistence under 5 U.S.C. 5703, in the same manner as persons employed intermittently in government service. Nominations for a term of 3 years are needed to represent the following categories of interest:
• Livestock Management; and
• Wildlife Management.
The Board will meet one to four times annually. The DFO may call additional meetings in connection with special needs for advice. Individuals may nominate themselves or others. Any individual or organization may nominate one or more persons to serve on the Board.
Nominations should include a resume providing adequate description of the nominee's qualifications, including information that would enable the Departments of the Interior and Agriculture to contact a potential member and make an informed decision regarding meeting the membership requirements of the Board. Nominations are to be sent to the address listed in the
As appropriate, certain Board members may be appointed as special Government employees (SGEs). Please be aware that applicants selected to serve as SGEs will be required, prior to appointment, to file a Confidential Financial Disclosure Report in order to avoid involvement in real or apparent conflicts of interest. You may find a copy of the Confidential Financial Disclosure Report at the following website:
Bureau of Land Management, Interior.
Notice of segregation.
Through this notice the Bureau of Land Management (BLM) is segregating public lands included in the right-of-way applications for the Pinyon Solar Project and the Elisabeth Solar Project from appropriation under the public land laws, including the Mining Law, but not the Mineral Leasing or Material Sales Acts, for a period of 2 years from the date of publication of this notice, subject to valid existing rights. This segregation is to allow for the orderly administration of the public lands to facilitate consideration of development of renewable energy resources. The public lands segregated by this notice total 4,439.92 acres.
This segregation for the lands identified in this notice takes effect on December 8, 2022.
Derek Eysenbach, Project Manager, telephone: 601-417-9505, email:
Regulations found at 43 CFR 2091.3-1(e) and 2804.25(f) allow the BLM to temporarily segregate public lands within a right-of-way application area for solar energy development from the operation of the public land laws, including the Mining Law, by publication of a
As provided in the regulations, the segregation of lands in this notice will not exceed 2 years from the date of publication unless extended for an additional 2 years through publication of a new notice in the
Upon termination of the segregation of these lands, all lands subject to this segregation will automatically reopen to appropriation under the public land laws, including the mining laws.
Bureau of Land Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) intends to prepare resource management plan (RMP) amendments with an associated programmatic environmental impact statement (EIS) for the BLM's utility-scale solar energy planning and by this notice is announcing the beginning of the scoping period to solicit public comments and identify issues and is providing the planning criteria for public review.
The BLM requests that the public submit comments concerning the scope of the analysis, potential alternatives, and identification of relevant information, and studies by February 6, 2023. To afford the BLM the opportunity to consider comments in the Draft programmatic EIS/RMP amendments, please ensure your comments are received prior to the close of the 60-day scoping period or 15 days after the last public meeting, whichever is later.
You may submit comments on issues and planning criteria related to the programmatic EIS for renewable energy development in Western States RMP amendments by the following methods:
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The BLM will hold two virtual and 12 in-person public scoping meetings at the following locations:
The specific dates and locations of these scoping meetings will be announced through the local media and the project website listed above.
Jeremy Bluma, Acting Division Chief, National Renewable Energy Coordination Office (NRECO), BLM Headquarters,
Through this notice, the BLM announces its intention to initiate a programmatic EIS for renewable energy development in Western States and associated RMP amendments, as appropriate. The programmatic EIS will predominately evaluate the environmental effects of potential modifications to improve and expand the BLM's utility-scale solar energy planning and may involve land use allocation modifications related to other renewable energy development types, such as wind energy. The BLM is issuing this Notice of Intent to inform the public about the proposed actions; announce plans to conduct 14 public scoping meetings; invite public participation in the scoping process; solicit public comments for consideration in establishing the scope and content of the programmatic EIS and alternatives; and identify potential environmental issues. The BLM will consult with Indian Tribal Nations on a government-to-government basis as described in the Additional Information section of this notice.
In October of 2012, the BLM signed the Western Solar Plan Record of Decision (Western Solar Plan) implementing solar energy policies, procedures, and land use plan amendments related to permitting of solar energy developments on public lands in six Southwestern States (Arizona, California, Colorado, Nevada, New Mexico, and Utah). The Western Solar Plan played a large part in establishing a more comprehensive solar energy program within the bureau through authorization policies, procedures, and design features applicable to all utility-scale solar energy development on BLM-administered lands across the six-state area. It identified categories of lands to be excluded from utility-scale solar energy development and specific locations well suited for utility-scale production of solar energy where the BLM prioritizes development (
Updating the BLM's solar energy planning would advance the goals of recent Executive Order 14008 and the Energy Act of 2020. In Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, the President ordered the Secretary of the Interior (Secretary) to “review siting and permitting processes on public lands” with a goal of increasing “renewable energy production on those lands . . . while ensuring robust protection for our lands, waters, and biodiversity and creating good jobs.” The Energy Act of 2020 directs the Secretary to “seek to issue permits that, in total, authorize production of not less than 25 gigawatts of electricity from wind, solar, and geothermal energy projects by not later than 2025, through management of public lands and administration of Federal laws.” 43 U.S.C. 3004(b).
In the 10 years since the Western Solar Plan was issued, the BLM has recognized that updating and expanding the Solar Energy Program would be appropriate to advance current and future renewable energy goals and to support conservation and climate priorities. The 2012 Western Solar Plan facilitated solar development applications for locations within the public lands where the landscape was generally flat, direct sunlight was ample, and high-value resources would not be significantly impacted. Due to technological advancements and reduced costs in photovoltaic systems, the BLM has received continued interest from photovoltaic solar developers in locations that were allocated as exclusion areas, under the Western Solar Plan, based on exclusion criteria for slope or solar insolation values. The purpose of this programmatic EIS and associated RMP amendments is to focus the BLM's utility-scale solar energy planning on resource management on BLM-administered lands rather than specifying technology-based criteria for solar development on public lands; expand the Program to additional states; increase opportunities for responsible renewable energy development in priority and variance areas; and develop appropriate criteria to exclude high-value resource areas from renewable energy development. The programmatic EIS will also consider and adjust policy or procedural elements of how the bureau planning for utility-scale solar energy development on BLM-administered lands where appropriate.
The draft programmatic EIS will analyze a suite of potential modifications and updates to the Western Solar Plan to be fully developed after considering input received during the scoping period.
The BLM will develop and analyze alternatives that will include a range of proposed modifications and updates to some or all of the aspects of the BLM's solar energy planning summarized below. The BLM has not yet selected a preferred alternative for any aspect of the programmatic EIS.
The BLM will consider the extent to which lands covered by the Desert Renewable Energy Conservation Plan, an interagency landscape-scale planning effort covering 22.5 million acres in seven southern California counties, should be included in the study area. The BLM will also consider the extent to which lands in Arizona, covered by the Restoration Design Energy Project, should be included in the study area for the programmatic EIS.
It may be appropriate to modify or eliminate some of these exclusion categories, based on new information and advances in technology. For example, exclusion criteria 1 (excluding development in locations with slopes greater than 5 percent) and 2 (excluding development where insolation values are below 6.5 kWh/m
The remaining 30 exclusion criteria are resource-based. The BLM will consider changes to those exclusions, particularly with respect to resources in the States added to the study area. The BLM is interested in public comment on whether, in addition to modifying exclusion criteria for solar energy development, the Bureau should establish similar exclusion criteria for wind energy development.
Additionally, since implementation of the Western Solar Plan, the majority of authorized solar developments on public land have occurred in variance areas, not SEZs. As such, the BLM will consider whether the purpose of the variance process (
In addition to a range of alternatives that will include proposed modifications and updates to the Program elements noted above, the BLM will consider a No Action Alternative. Under the No Action Alternative, no changes will be made to the Solar Energy Program. Under the No Action Alternative, no changes would be made
The BLM welcomes comments on potential modifications and updates to the Program elements described above as well as suggestions for additional alternatives.
The planning criteria guide the planning effort and lay the groundwork for effects analysis by identifying the preliminary issues and their analytical frameworks. Preliminary issues for the planning area have been identified by BLM personnel and from early engagement conducted for this planning effort with Federal, State, and local agencies; Tribes; and other stakeholders. The BLM has identified several preliminary issues within the planning criteria for this planning effort's analysis. The planning criteria are available for public review and comment at the ePlanning website
BLM personnel have identified the following potential effects to be examined during the planning process: effects to natural and cultural resources, other resource uses, and social and economic conditions from providing opportunities on public lands for renewable energy development. The BLM will also examine the potential for improved conservation outcomes in high-resource value areas allocated as exclusion areas where renewable energy development is prohibited or whether other comprehensive practices could be implemented for utility-scale solar development on BLM-administered public lands to support improved conservation outcomes. The BLM is accepting public input on these issues during the scoping period, consistent with 43 CFR 1610.4-1. The programmatic EIS will describe the environment of the planning area that could be affected by the alternatives under consideration and will evaluate reasonably foreseeable impacts.
The public is invited to comment on information about the relationships among solar energy developments on public lands and the balance between the nation's energy needs and other public land resources and uses, as well as relevant social and economic factors. This information will inform the scope of BLM's alternatives and impact analysis in the programmatic EIS.
This notice of intent initiates the scoping period and public review of the planning criteria, which guide the development and analysis in the programmatic EIS and associated land use plan amendments. The BLM will be holding two virtual and 12 in-person scoping meetings. The specific dates and locations of these scoping meetings will be announced at least 15 days in advance through ePlanning project page and on the BLM website (see
The BLM will use an interdisciplinary approach to develop the programmatic EIS and land use plan amendments in order to consider the variety of resource issues and concerns identified. Bureau experts involved in this effort will include, without limitation, the following disciplines: rangeland management, minerals and geology, forestry, outdoor recreation, archaeology, paleontology, wildlife and fisheries, lands and realty, hydrology, soils, sociology and economics.
The BLM will identify, analyze, and consider potential mitigation to address the reasonably foreseeable impacts to resources from the proposed plan amendments and all analyzed reasonable alternatives and, in accordance with 40 CFR 1502.14(e), include appropriate mitigation measures not already included in the proposed plan amendments or alternatives. Mitigation may include avoidance, minimization, rectification, reduction or elimination over time, and compensation, and may be considered at multiple scales, including the landscape scale.
The BLM will utilize and coordinate the NEPA and land use planning processes for this planning effort to help support compliance with applicable procedural requirements under the Endangered Species Act (16 U.S.C. 1536) and Section 106 of the National Historic Preservation Act (54 U.S.C. 306108) as provided in 36 CFR 800.2(d)(3), including public involvement requirements of Section 106. The information about historic and cultural resources and threatened and endangered species within the area potentially affected by the proposed plan will assist the BLM in identifying and evaluating impacts to such resources.
The BLM will consult with Indian Tribal Nations on a government-to-government basis in accordance with Executive Order 13175, BLM MS 1780, and other Departmental policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with Indian Tribal Nations and other stakeholders that may be interested in or affected by the proposed changes to the BLM's solar energy planning and RMP amendments that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the environmental analysis as a cooperating agency. The BLM will engage in government-to-government consultation meetings. The BLM will provide written invitations to potentially affected Tribal Nations prior to the meetings. The BLM will provide additional opportunities for government-to-government consultation throughout the NEPA process.
Interested parties not submitting comments at this time but who would like to receive a copy of the draft programmatic EIS and other project materials should indicate their preference through the project website (
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.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the
Comments should be submitted electronically by December 23, 2022.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before November 19, 2022. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State or Tribal Historic Preservation Officers:
In the interest of preservation, a SHORTENED comment period has been requested for the following resource:
Additional documentation has been received for the following resources:
Nominations submitted by Federal Preservation Officers:
The State Historic Preservation Officer reviewed the following nominations and responded to the Federal Preservation Officer within 45 days of receipt of the nominations and supports listing the properties in the National Register of Historic Places.
On December 1, 2022, the Department of Justice lodged a proposed consent
The United States filed this lawsuit under the Clean Air Act. The United States' complaint names Republic Steel as the defendant. The complaint seeks injunctive relief and civil penalties for violations of the regulations that govern the emission limits, performance testing, and parametric monitoring and recording as required under the defendant's 2004 Permit to Install for its steel manufacturing facility in Canton, Ohio. The consent decree requires the defendant to perform injunctive relief, including addition of air pollutant emission controls, and pay a $990,000 million civil penalty.
The publication of this notice opens a period for public comment on the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $11.50 (25 cents per page reproduction cost) payable to the United States Treasury.
On September 28, 2022, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Eastern District of Missouri in the lawsuit entitled
The proposed Consent Decree would resolve claims the United States and State of Missouri have brought pursuant to Sections 106, 107(a), and 113(g) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9606, 9607(a), and 9613(g), as amended by the Superfund Amendments and Reauthorization Act of 1986 (“CERCLA”), and Section 260.530 of the Missouri Hazardous Waste Management Law, Mo. Rev. Stat. 260.530, regarding the Findett/Hayford Bridge Road Groundwater Superfund Site Operable Unit 4 (“OU4”).
Under the Settlement Agreement, Union Electric Company d/b/a Ameren (“Ameren”) will perform response actions at the Site pursuant to the June 30, 2021 Record of Decision, and pay U.S. Environmental Protection Agency and Missouri Department of Natural Resources oversight costs. In exchange, the United States and the State will provide covenants not to sue or to take administrative action against Ameren pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a), and Mo. Rev. Stat. 260.510 and 260.530, with regard to the Work performed.
Any comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Settlement Agreement may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $34.75 for the Consent Decree and appendices, and $8 for only the Consent Decree without appendices (25 cents per page reproduction cost) payable to the United States Treasury.
Executive Office for Immigration Review (EOIR), Department of Justice.
60-Day notice.
The Executive Office for Immigration Review, Department of Justice (DOJ), 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.
Comments are encouraged and will be accepted for 60 days until January 9, 2023.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2500, Falls Church, VA 22041, telephone: (703) 305-0289.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and/or
• 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,
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If additional information is required contact: Robert Houser, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street NE, 3E.206, Washington, DC 20530.
Employment and Training Administration (ETA), Labor.
Request for information: request for comments.
The U.S. Department of Labor (DOL) is requesting information on successful approaches related to digital skills attainment and competency development in education and training efforts, the strategies our education and workforce development systems are employing to assess and ensure individuals are digitally resilient, and any challenges the education and public workforce systems are facing. DOL is also requesting information on strategies to advance digital equity and inclusion in the workforce. DOL developed this RFI with substantial input from the U.S. Department of Commerce (Commerce), U.S. Department of Education (ED), and the Institute of Museum and Library Sciences (IMLS), as part of its long-standing coordination and partnership with these agencies.
To be ensured consideration, comments are due by February 6, 2023.
You may submit comments in response to the RFI described in this notice by one of the following methods:
Going forward, digital literacy will become increasingly important to securing a quality job and the advancement of the American workforce; therefore, it is imperative for federal agencies to better understand current trends in digital literacy and digital skills attainment. DOL, in collaboration with Commerce, ED, and IMLS, will use the information collected through this RFI to inform competitive grant opportunities, further develop technical assistance, inform public policy on the expansion of digital skill-building training programs that facilitate upskilling the workforce, and address demands related to digital literacy and access.
DOL's Employment and Training Administration (ETA) contributes to the more efficient functioning of the U.S. labor market by providing high-quality job training, employment, labor market information, and income maintenance services, primarily through state and local workforce development systems. This includes responsibility for implementing an integrated national workforce investment system that supports economic growth and provides workers with the information, advice, job search assistance, supportive services, and training for in-demand industries and occupations needed to get and keep quality jobs. Workforce services also help connect employers with skilled workers seeking employment. Available training services include both classroom and work-based learning opportunities provided through the American Job Center network. ETA's workforce development programs are designed to assist communities, educators, businesses, and jobseekers (
Commerce's National Telecommunications and Information Administration (NTIA) is leading the Biden-Harris Administration's internet For All initiative, which includes multiple new broadband deployment and digital equity and inclusion programs funded by the BIL. The BIL includes the Broadband Equity Access and Deployment (BEAD) program, providing $42.5 billion for funding broadband deployment and digital inclusion initiatives; the Digital Equity Act of 2021
NTIA is also currently implementing additional broadband programs created by the Consolidated Appropriations Act of 2021 (CAA)
ED's Office of Career, Technical and Adult Education (OCTAE) supports the teaching and learning of digital skills for youth and adults. Preparing secondary, postsecondary and adult learners for career opportunities in STEM industry sectors, such as advanced manufacturing and healthcare, is essential to promoting innovation and economic growth. In recent Perkins V discretionary grant competitions, OCTAE issued a Notice Inviting Applications that promoted projects designed to improve student achievement or educational outcomes, including computer science, as a competitive preference priority. Annually, OCTAE administers the Presidential Cyber Security Educator award to recognize two educators—one at the elementary level, and one at the secondary level—who demonstrate superior achievement in instilling skills, knowledge, and passion with respect to cybersecurity and cybersecurity-related subjects.
OCTAE also funds projects to support adult education learners to engage with digital technologies and help practitioners improve their ability to deliver effective digital skills training and support. The projects include Digital Resilience in the American Workforce (DRAW), Enhancing Access for Refugees and New Americans, and the Adult EdTech Challenge. Over the next three years, ED will invest in funding these programs to support improving the quality of foundational digital literacy skills and training in adult education/literacy programs. If passed, the Digital Citizenship and Media Literacy Act of 2020 (DCML) would direct ED to award approximately $20 million bi-annually in grant funding to state/local education agencies to promote media literacy and
The federal Institute of Museum and Library Services (IMLS) also addresses digital literacy skills by statute (20 U.S.C. 9101
In accordance with President Biden's Executive Order on advancing racial equity and support for underserved communities through the federal government,
Access to training programs, devices (
As more jobs require digital resilience and access to reliable infrastructure, jobseekers, workers, and learners who lack digital literacy skills or other foundational career-readiness skills are at a disadvantage in both securing and retaining employment opportunities. Further, as noted in a 2020 report from the National Skills Coalition, “
Technology is built into nearly every aspect of our daily lives, including how Americans learn, work and communicate with each other. Digital literacy and resilience enable jobseekers, workers, and learners to participate in the global economy, and digital skills are necessary to access many of the public workforce programs that help job seekers successfully complete job-readiness and/or occupational training. The COVID-19 pandemic increased the need for the American workforce to utilize digital skills, and in today's labor market, the job search, recruitment, and application processes are becoming increasingly digitized. Despite the shift toward increased uses of digital tools and technology, an estimated 32 million Americans struggle to use a computer, and half of all Americans say they are not confident in using technology to learn.
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(a) Assessing digital resilience for adult and youth learners?
(b) Addressing digital literacy skill demands or skills mismatches for adult and youth workers seeking employment or training services?
(c) Upskilling employees in the workforce, including incorporating digital skills instruction and integrating digital technologies into occupational skills training?
(d) Identifying in-demand digital literacy skills and/or skills most relevant for the local labor market? Are industry or occupation-specific skills being identified?
(e) Creating and utilizing incentives to engage workers and job seekers in digital learning?
(f) Developing/piloting innovative strategies and promising practices or projects to support digital resilience amongst learners?
(g) What are some examples of promising practices in the field of digital skills training?
(h) What are successful processes used by employers to share information on in-demand digital skills needed for their respective industry? How do employers share information with the public workforce system, including other employers, jobseekers and training providers?
(i) What are successful processes by which employers upgrade specific digital skills amongst their own workforces?
(j) Which library systems and museums do you consider to be exemplars in teaching digital skills? What promising practices do these institutions utilize to serve the public?
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(a) What barriers are individuals (adult and youth workers/learners) experiencing in accessing digital tools and/or training?
(b) What challenges are instructors and/or training providers facing when seeking to deliver digital literacy instruction and training to learners and/or workers?
(c) What are common mismatches in digital literacy that employers are facing for newly hired workers as well as incumbent workers?
(d) What resources are most needed by educators and training providers to address the challenges in providing digital skills training to individuals?
(e) What challenges are training program participants (adult and youth) facing, and where are there still mismatches in the digital literacy ecosystem (
(f) What challenges or barriers are local entities facing when attempting to use new or existing funding to support digital literacy training for learners?
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(a) What additional resources are needed for workers of all backgrounds to access and succeed in digital literacy upskilling/training opportunities?
(b) How can programs ensure underserved and/or marginalized populations are adequately targeted for digital literacy training opportunities?
(c) How can digital skills/literacy efforts be integrated into ongoing worker preparation programs?
(d) What interventions/supports can be utilized to support digital inclusion for all program participants? For example, are there issues centered around digital literacy resources being made available in Spanish and other widely-used languages, in addition to English?
(e) How should the Institute of Museum and Library Sciences better encourage digital skills development in libraries and museums?
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(a) How are the most successful partnerships structured? Are there required partners?
(b) Are there barriers preventing successful partnerships with business and industry partners at the state and/or local levels? If so, what are the barriers and what support is needed to overcome them?
(c) What is the role of employers in preparing new or incumbent workers for industry-specific digital skills, or how should workforce providers partner with employers? How might employer-specific digital skills be taught by the employer to build on skills taught by workforce grantees or training providers?
(d) Are there any specific digital skills that workforce and education training providers should be responsible for teaching learners, such as how to type or navigate digital devices?
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(a) Which existing federal programs/federal funding sources are being utilized to support digital resilience?
(b) Is additional federal funding needed for states/local governments to facilitate better services to the public?
(c) What types of technical assistance and resources would be most valuable to build digital resilience capacity?
(d) How are WIOA grantees/sub-grantees leveraging funding outside of WIOA, such as the Affordable Connectivity Program and/or digital equity funding under the Bipartisan Infrastructure Law, to address digital inclusion and equity challenges with federal funding?
(e) How can federally-funded workforce and education training programs work together to ensure that participants (adult and youth) receive needed training in foundational and occupation-specific digital literacy skills?
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(a) What are the digital skills necessary to be considered digitally literate today? In the future?
(b) Which K-12 and community college/postsecondary education systems do you consider to be exemplars in teaching digital skills to adult learners, youth learners, and/or families/caregivers? Why?
(c) How should the Department of Education better encourage digital skills education in the K-12, community colleges, and adult education settings?
(d) What are some recommended strategies to ensure digital skills education evolves alongside society's technological advances?
National Aeronautics and Space Administration (NASA).
Notice of information collection—Extension of a currently approved collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections.
Comments are due by January 9, 2023.
Written comments and recommendations for this information collection should be sent within 60 days of publication of this notice to
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Bill Edwards-Bodmer, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF0000, Washington, DC 20546, 757-864-3292 or email
This collection provides a means by which NASA contractors can voluntarily and anonymously report any safety concerns or hazards pertaining to NASA programs, projects, or operations.
The current, paper-based reporting system ensures the protection of a submitter's anonymity and secure submission of the report by way of the U.S. Postal Service.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) 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 automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Archives and Records Administration (NARA).
Notice.
NARA is proposing to request that the Office of Management and Budget (OMB) renew approval of an information collection used by researchers who wish to do biomedical statistical research in archival records containing highly personal information. We invite you to comment on this proposed information collection.
We must receive written comments on or before February 6, 2023.
Send comments to Paperwork Reduction Act Comments (MP), Room 4100; National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740-6001, or email them to
Contact Tamee Fechhelm by telephone at 301-837-1694 with requests for additional information or copies of the proposed information collection and supporting statement.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), we invite the public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) whether we need the proposed information collection to properly perform our agency functions; (b) our estimate of the burden of the proposed information collection and its accuracy; (c) ways we could enhance the quality, utility, and clarity of the information we collect; (d) ways we could minimize the burden on respondents of collecting the information, including through information technology; and (e) whether this collection affects small businesses. We will summarize any comments you submit and include the summary in our request for OMB approval. All comments will become a matter of public record.
In this notice, we solicit comments concerning the following information collection:
Nuclear Regulatory Commission.
Draft NUREG; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment a draft NUREG, NUREG-2212, “Standard Review Plan for Applications for 10 CFR part 70 Licenses for Possession and Use of Special Nuclear Materials of Critical Mass but not Subject to the Requirements in 10 CFR part 70, subpart H.” This NUREG contains information intended to provide staff guidance to assist applicants and licensees in preparing license applications for possession and use of special nuclear materials (SNM) exceeding specific threshold quantities. It describes methods or approaches acceptable to the NRC staff for implementing NRC requirements in the
Submit comments by February 6, 2023. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date.
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
Osiris Siurano-Perez, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-7827, email:
Please refer to Docket ID NRC-2020-0018 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 submissions available to the public or entering the comment into ADAMS.
The information in this draft report, NUREG-2212, “Standard Review Plan for Applications for 10 CFR part 70 Licenses for Possession and Use of Special Nuclear Materials of Critical Mass but not Subject to the Requirements in 10 CFR part 70, subpart H,” is intended to provide staff guidance to assist applicants and licensees in preparing applications for licenses for critical mass quantities of SNM exceeding specific threshold quantities. In particular, it describes the types of information required under section 70.22 of title 10 of the
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a proposed collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Equal Employment Opportunity Electronic Complaint System.”
Submit comments by January 9, 2023. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
David C. Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2022-0040 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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Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a proposed collection of information to OMB for review entitled “Equal Employment Opportunity Electronic Complaint System.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Order; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has approved the SHINE Medical Technologies, LLC (SHINE) request to amend Construction Permit No. CPMIF-001 for the SHINE Medical Isotope Production Facility (SHINE facility) in Rock County, Wisconsin. The approved amendments extend the latest date for completion of the construction of the SHINE facility from December 31, 2022, to December 31, 2025, and administratively change the name of the construction permit holder from SHINE Medical Technologies, LLC to SHINE Technologies, LLC.
The Order was issued on November 30, 2022.
Please refer to Docket ID NRC-2022-0180 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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Holly Cruz, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1053; email:
The text of the Order is attached.
For the Nuclear Regulatory Commission.
In the Matter of: SHINE Medical Technologies, LLC (SHINE Medical Isotope Production Facility)
SHINE Medical Technologies, LLC (SHINE, licensee, permit holder) is the holder of Construction Permit (CP) No. CPMIF-001, which the U.S. Nuclear Regulatory Commission (NRC, the Commission) issued on February 29, 2016 (Agencywide Documents Access and Management System (ADAMS) Package Accession No. ML16041A473), for the construction of the SHINE Medical Isotope Production Facility (SHINE facility) in Rock County, Wisconsin. CP No. CPMIF-001 includes December 31, 2022 as the latest date for completion of the construction of the SHINE facility and expires on the latest date of completion. The SHINE facility is currently under construction.
By letter dated April 1, 2022 (ML22091A093), SHINE submitted to the NRC a license amendment request in accordance with section 50.90, “Application for amendment of license, construction permit, or early site permit,” of title 10 of the
Upon review of the license amendment request, the NRC staff determined that SHINE had shown good cause for extending the latest date for completion of the construction of the SHINE facility from December 31, 2022, to December 31, 2025 and that the name change of the CP holder from SHINE Medical Technologies, LLC to SHINE Technologies, LLC is administrative in nature. The staff also determined that the license amendment request involves no significant hazards consideration. The staff prepared an environmental assessment and finding of no significant impact for the requested extension of the latest date for completion of construction and published it in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. The scope of this order extending the latest date for completion of construction and administratively changing the name of the CP holder and any proceeding hereunder is limited to direct challenges to the CP holder's asserted reasons that show good cause for the extension and to the name change. 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 which 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 which 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 which, 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 section of this document discussing electronic submissions (E-Filing).
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing 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 section of this document discussing electronic submissions (E-Filing), 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 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, 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
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). 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. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC 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 a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing 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 by: (1) first class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
The attorney for the CP holder is Nathan Schleifer, General Counsel, SHINE Technologies, LLC, 3400 Innovation Court, Janesville, WI 53546.
Accordingly, pursuant to Sections 161b and 161i of the Atomic Energy Act of 1954, as amended; 42 U.S.C. Sections 2201(b) and 2201(i); and 10 CFR 50.90 and 10 CFR 50.55(b),
This order is effective upon issuance.
Dated: November 30, 2022.
Nuclear Regulatory Commission.
License renewal; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued a renewal for Facility Operating License No. R-130, held by the Regents of the University of California (the licensee), for the continued operation of the University of California-Davis McClellan Nuclear Research Center (UCD, MNRC) Training, Research, Isotopes, General Atomics (TRIGA) reactor (the reactor, facility), for an
Renewed Facility Operating License No. R-130 was issued on November 21, 2022, and is effective as of the date of issuance.
Please refer to Docket ID NRC-2022-0114 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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Geoffrey Wertz, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-0893; email:
The NRC has issued a renewal for Facility Operating License No. R-130, held by Regents of the University of California, which authorizes operation of the UCD MNRC TRIGA reactor. The UCD MNRC is a hexagonal-grid, natural-convection-cooled TRIGA-type reactor with a graphite reflector. The renewed license authorizes the licensee to operate the UCD MNRC at a steady-state power level up to a maximum of 1.0 MWt. Renewed Facility Operating License No. R-130 will expire 20 years from its date of issuance.
The renewed facility operating license complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations set forth in chapter I of title 10 of the
The NRC staff prepared the Safety Evaluation Report—Renewal of the Facility Operating License for the University of California-Davis McClellan Nuclear Research Center TRIGA Research Reactor, License No. R-130, Docket No. 50-607 which concluded that the licensee can continue to operate the facility without endangering the health and safety of the public. The NRC staff also prepared an environmental assessment and finding of no significant impact regarding the renewal of the facility operating license, published in the
Documents related to this action, including the license renewal application and other supporting documentation, and the safety evaluation report prepared by the NRC staff for the license renewal, are available to interested persons as indicated.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 2, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 2, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 30, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 29, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 29, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 22, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 29, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 29, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 21, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 2, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 28, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 2, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 29, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 22, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 2, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 22, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 28, 2022, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 22, 2022, it filed with the Postal Regulatory Commission a
On March 21, 2022, The Nasdaq Stock Market LLC (“Nasdaq” or the “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
On May 23, 2022, the Exchange filed Amendment No. 1 to the proposed rule change, which superseded the proposed rule change as originally filed. Amendment No. 1 was published for comment in the
Nasdaq Listing Rule IM-5315-2 sets forth listing requirements for a company that has not previously had its common equity securities registered under the Exchange Act to list its common equity securities on Nasdaq's Global Select Market at the time of effectiveness of a registration statement,
The Exchange proposes to modify the Pricing Range Limitation to provide that the Exchange would release the security for trading if: (a) the actual price calculated by the Nasdaq Halt Cross is at or above the price that is 20% below the lowest price of the disclosed price range; or (b) the actual price calculated by the Nasdaq Halt Cross is at or below the price that is 80% above the highest price of the disclosed price range (the “80% Upside Limit”). For the Nasdaq Halt Cross to execute at a price outside of the disclosed price range, the company would be required to publicly disclose and certify to the Exchange that the company does not expect that such price would materially change the company's previous disclosure in its effective registration statement and that its effective registration statement contains a sensitivity analysis explaining how the company's plans would change if the actual proceeds from the offering are less than or exceed those from prices in the disclosed price range.
Currently, Nasdaq Rule 4120(c)(9)(B) states that, notwithstanding the provisions of Nasdaq Rule 4120(c)(8)(A) and (c)(9)(A), in the case of a Direct Listing with a Capital Raise, for purposes of releasing securities for trading on the first day of listing, the Exchange, in consultation with the financial advisor to the issuer, will make the determination of whether the security is ready to trade. The Exchange will release the security for trading if: (i) all market orders (including the CDL Order
According to the Exchange, based on conversations it has had with companies and their advisors, the Exchange believes that some companies may be reluctant to use the existing rules for a Direct Listing with a Capital Raise because of concerns about the Pricing Range Limitation.
The Exchange proposes to modify the Pricing Range Limitation such that even if the actual price calculated by the Nasdaq Halt Cross is outside the disclosed price range, the Exchange would release a security for trading if the actual price at which the Nasdaq Halt Cross would occur is as much as 20% below the lowest price of the disclosed price range, or up to a price at or below the 80% Upside Limit. For the Nasdaq Halt Cross to execute at a price outside of the disclosed price range, all other necessary conditions must be satisfied, and the company would be required to specify the quantity of shares registered, as permitted by Securities Act Rule 457.
The Exchange states that it believes that its proposed approach can be analogized to Securities Act Rule 430A and staff guidance,
The Exchange states that the burden of complying with the disclosures required under federal securities laws, including providing any disclosure necessary to avoid any material misstatements or omissions, remains with the issuer.
The Exchange states that an underwriter plays an important role in a traditional IPO and, therefore, proposes to require that a company listing securities on Nasdaq in connection with a Direct Listing with a Capital Raise must retain an underwriter with respect to the primary sales of shares by the company and identify the underwriter in its effective registration statement.
The Exchange also states that an underwriter retained in connection with a Direct Listing with a Capital Raise will perform substantially similar functions, including those related to establishing and adjusting the price range, to those performed by an underwriter in a “typical” IPO because the underwriter will be subject to similar liability and reputational risk.
The Exchange also proposes to adopt a new “Price Volatility Constraint” (which has the meaning described below) and disseminate information about whether the Price Volatility Constraint has been satisfied, which will indicate whether the security may be ready to trade.
The Exchange states that an imbalance between buy and sell orders could sometimes cause the Current Reference Price to fall outside of the 10% Price Collar after the Price Volatility Constraint has been satisfied.
According to the Exchange, given that there may be a Direct Listing with a Capital Raise that could price outside of the disclosed price range, subject to the 80% Upside Limit above which the Nasdaq Halt Cross could not proceed, the Exchange proposes to enhance transparency by providing readily available, real time pricing information to investors.
The Exchange also proposes to prohibit market orders (other than by the company through its CDL Order) from the opening of a Direct Listing with a Capital Raise.
In addition, the Exchange states that to protect investors and assure that they are informed about the attributes of a Direct Listing with a Capital Raise, the Exchange proposes to impose specific requirements on Nasdaq members with respect to a Direct Listing with a Capital Raise.
The Exchange states that to assure that members have the necessary information to be provided to their customers, the Exchange proposes to distribute, at least one business day prior to the commencement of trading of a security listing in connection with a Direct Listing with a Capital Raise, an information circular to its members.
The Exchange represents that in each instance of a Direct Listing with a Capital Raise, the Exchange's information circular would inform market participants that the auction could price up to 20% below the lowest price of the disclosed price range and would specify that price. The Exchange also represents that it would indicate in such circular a statement that the Nasdaq Halt Cross cannot proceed at a price in excess of the 80% Upside Limit and whether or not there is a lower price limit above which the Nasdaq Halt Cross could not proceed, based on the company's certification.
The Exchange states that to assure that the issuer has the ability, prior to the completion of the offering, to provide any necessary additional disclosures that are dependent on the price of the offering, the Exchange proposes to introduce to the operation of the Nasdaq Halt Cross a brief Post-Pricing Period, in circumstances where the actual price calculated by the Nasdaq Halt Cross is outside of the disclosed price range.
The Exchange also proposes to clarify several provisions of existing rules by restating the provisions of Nasdaq Rule 4120(c)(8)(A) and (c)(9)(A) in a clear and direct manner in proposed Nasdaq Rule 4120(c)(9)(B) without substantively changing the requirements.
Nasdaq Listing Rule IM-5315-2 provides that in determining whether a company listing in connection with a Direct Listing with a Capital Raise satisfies the Market Value of Unrestricted Publicly Held Shares
The Exchange states that any company listing in connection with a Direct Listing with a Capital Raise would continue to be subject to, and required to meet, all other applicable initial listing requirements, including the requirements to have the applicable number of shareholders and at least 1,250,000 Unrestricted Publicly Held Shares outstanding at the time of initial listing, and the requirement to have a price per share of at least $4.00 at the time of initial listing.
Finally, the Exchange proposes to amend Nasdaq Rules 4753(a)(3)(A) and 4753(b)(2) to conform the requirements for disseminating information and establishing the opening price through the Nasdaq Halt Cross in a Direct Listing with a Capital Raise to the proposed amendment to allow the opening auction to price as much as 20% below the lowest price of the disclosed price range.
The Commission finds that the proposed rule change, as modified by Amendment No. 3, is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission has consistently recognized the importance and significance of national securities exchange listing standards. Among other things, such listing standards help ensure that exchange-listed companies will have sufficient public float, investor base, and trading interest to provide the depth and liquidity necessary to promote fair and orderly markets.
The Exchange's listing standards currently provide the Exchange with discretion to list a company on Nasdaq's Global Select Market in connection with a Direct Listing with a Capital Raise, which provides companies with the option, without a firm commitment underwritten offering, of selling shares to raise capital alone or in conjunction with shares by selling shareholders.
As explained further below, the following aspects of the proposal, as modified by Amendment No. 3, demonstrate that the Exchange's proposal is consistent with the protection of investors and the public interest under Section 6(b)(5) of the Exchange Act as well as the maintenance of fair and orderly markets: (i) by modifying the Pricing Range Limitation such that, provided other requirements are satisfied, a Direct Listing with a Capital Raise can be executed in the opening cross at a price that is above the highest price of the disclosed price range only if the execution price is at or below the 80% Upside Limit; (ii) by adding conditions that must be satisfied before the opening cross could proceed at a price outside of the disclosed price range that provide some assurance that issuers are complying with the disclosure requirements under federal securities laws, including conditions that require an issuer to provide a certification to Nasdaq and include a sensitivity analysis in its registration statement, and the addition of a Post-Pricing Period; (iii) by adding procedures that help to inform investors that the security may be ready to trade and ensure that the opening price cannot deviate by more than 10% from the Near Execution Price after investors are informed the opening cross nears execution and of the Near Execution Price; (iv) by requiring that a company offering securities for sale in connection with a Direct Listing with a Capital Raise must retain an underwriter with respect to the primary sales of shares by the company and identify the underwriter in its effective registration statement; and (v) by making clarifying changes regarding calculation of the 20% threshold below the disclosed price range.
The Commission discusses below the Exchange's proposed modifications to Direct Listings with a Capital Raise. First, the Commission addresses the modifications to the Pricing Range Limitation, and the certification process and other conditions, that would allow a Direct Listing with a Capital Raise to execute in the Nasdaq Halt Cross at a price that is outside the disclosed price range (
The Exchange proposes to modify its rules concerning pricing restrictions for the opening auction on the first day of trading for a Direct Listing with a Capital Raise. Provided that other requirements are satisfied, a Direct Listing with a Capital Raise will be able to be executed in the Nasdaq Halt Cross at a price that is at or above the price that is as low as 20% below the lowest price in the disclosed price range, or at a price that is as high as 80% above the highest price of the disclosed price range (
In all such cases where the execution price would be outside of the disclosed price range, the company will be required to specify the quantity of shares registered in its registration statement, as permitted by Securities Act Rule 457, and that registration statement will be required to contain a sensitivity analysis explaining how the company's plans would change if the actual proceeds from the offering are less than or exceed the amount assumed in the disclosed price range. The company must certify to Nasdaq that the registration statement contains the required sensitivity analysis.
The Exchange also proposes to require that the securities of a company listing in connection with a Direct Listing with a Capital Raise cannot price above the 80% Upside Limit (
The Exchange's current rules for a Direct Listing with a Capital Raise require it to postpone and reschedule the offering if the opening auction price does not fall at or within the disclosed price range, so that issuers are able to update any disclosures if necessary before proceeding with an offering outside of the disclosed price range. Likewise, the Exchange's proposal to expand the Pricing Range Limitation for Direct Listings with a Capital Raise would not allow the Nasdaq Halt Cross to proceed if the company is unable to provide Nasdaq with the required certifications about the adequacy of the disclosure to allow the opening cross to execute at a price that is up to 20% below the low end of the disclosed price range or is up to the 80% Upside Limit. If the issuer could not provide the required certifications, the Exchange would postpone and reschedule the offering.
Additionally, any time the opening price calculated by the Nasdaq Halt Cross is outside the disclosed price range (
The Exchange also proposes to establish a Price Volatility Constraint, which would require that the Current Reference Price not deviate by 10% or more from any Current Reference Price in the previous 10 minutes, as a condition to the opening auction in a Direct Listing with a Capital Raise. Specifically, the Exchange's proposal provides that “[t]he Pre-Launch Period shall continue until at least 5 minutes after the Price Volatility Constraint has been satisfied.”
The requirement that the Pre-Launch Period will continue for at least five minutes after the Price Volatility Constraint has been satisfied will allow for a period during which investors can modify their orders, if needed, based on the Near Execution Price, prior to the execution of the opening cross. After the Near Execution Price is set, the Current Reference Price may change because buy and sell orders can continue to come in, or be cancelled. If the security is not released for trading within 30 minutes and the Current Reference Price is outside the 10% Price Collar at the end of the 30-minute countdown or at any time thereafter, the Price Volatility Constraint will reset and all requirements of the Pre-Launch Period must be satisfied. If however, the Current Reference Price at the end of the 30-minute countdown is within the 10% Price Collar, price formation may continue until such time that Nasdaq, in consultation with the named underwriter, makes the determination that the security is ready to trade.
Nasdaq also proposes to enhance price discovery by providing readily available, real-time pricing information to investors by disseminating, free of charge, the Current Reference Price on a public website, such as
As described above, the opening process for Direct Listings with a Capital Raise would include the dissemination of the Near Execution Price, establishment of the Near Execution Time, and the protections provided by the 10% Price Collar that ensures the opening price cannot deviate by more than 10% from the disseminated Near Execution Price. These proposed provisions should address any potential concerns that, when the Exchange disseminates information that the Price Volatility Constraint has been satisfied, investors could be misled about the opening auction price and that the opening cross nears execution at a time when buy and sell orders are still coming in because such orders could change the opening price and could cause the auction to not occur for a considerable time.
Further, the Commission believes that the information Nasdaq proposes to make publicly available prior to the opening could help to provide investors with useful information relating to the pricing of the security and help to inform investors in making decisions about entering, modifying, or cancelling orders to participate in the opening cross. The requirement that investors cannot enter market orders and therefore will have to enter a limit price to their order will also provide a cap to an investor's financial obligation should its buy order be executed in the Nasdaq Halt Cross and prevent the buy order from executing at a price higher than the investor anticipated. Based on the above, the Commission finds these procedures are consistent with the protection of investors, the public interest, and the other requirements of Section 6(b)(5) of the Exchange Act.
Given the broad definition of “underwriter” in the Securities Act,
In the proposed rule change as modified by Amendment No. 3, the Exchange proposes to require that a company offering securities for sale in connection with a Direct Listing with a Capital Raise retain an underwriter with respect to the primary sales of shares by the company and identify the underwriter in its effective registration statement.
The Commission believes that the Exchange's proposed requirement that a company conducting a Direct Listing with a Capital Raise must retain and name an underwriter will help address the investor protection concerns discussed in the OIP that can arise in a Direct Listing with a Capital Raise that prices outside of the disclosed price range. With respect to disclosure, for example, for an offering to proceed at a price outside of the disclosed price range, the Exchange's proposal would require the company to initially provide certifications to the Exchange and publicly disclose that the company does not expect that such a price would materially change its effective registration statement disclosure. The company's registration statement also would need to contain a sensitivity analysis explaining how the company's plans would change if the actual proceeds from the offering are less than or exceed the amount assumed in the disclosed price range. In addition, the company would be required to certify to the Exchange that no additional disclosures are required under the federal securities laws based on the actual price. The required presence of named underwriters who are subject to Securities Act liability should help ensure the accuracy of these disclosures that potential investors receive in a Direct Listing with a Capital Raise. This disclosure includes information, such as the use of proceeds and the required sensitivity analysis, that becomes even more important when an offering prices outside of the range established by the company in its registration statement. Investors should also benefit from the knowledge that underwriters with Securities Act liability are required as companies consider the certifications they must provide the Exchange with respect to the impact of price changes on their registration statement disclosure and on their obligation to provide additional disclosures under the federal securities laws.
The Commission also asked questions in the OIP about shareholders' ability to pursue claims under Section 11 of the Securities Act due to potential traceability issues.
In view of the totality of the Exchange's proposal, including the requirement that a company seeking to conduct a Direct Listing with a Capital Raise retain and name an underwriter, the Commission does not expect any such tracing challenges in this context to be of such magnitude as to render the proposal inconsistent with the Exchange Act.
In the OIP, the Commission asked questions about how the Exchange would calculate the 20% threshold below the disclosed price range and whether the minimum price at which the opening auction could occur would be the same as the per share price for purposes of evaluating whether the issuer satisfies the applicable Market
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 3 to the proposed rule change is consistent with the Exchange 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 3, prior to the thirtieth day after the date of publication of notice of the filing of Amendment No. 3 in the
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 3, is consistent with the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange.
It is therefore ordered, pursuant to Section 19(b)(2) of the Exchange Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given of the following determinations: I hereby determine that a certain object being imported from abroad pursuant to an agreement with its foreign owner or custodian for temporary display in the exhibition “Georgia O'Keeffe: To See Takes Time” at The Museum of Modern Art, New York, New York, and at possible additional exhibitions or venues yet to be determined, is of cultural significance, and, further, that its temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Elliot Chiu, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
The Department of State (“the Department”) requests written information to assist in reporting on the degree to which the United States and foreign governments meet the minimum standards for the elimination of trafficking in persons (“minimum standards”) that are prescribed by the Trafficking Victims Protection Act of 2000, as amended (“TVPA”). This information will assist in the preparation of the Trafficking in Persons Report (“TIP Report”) that the Department submits annually to the U.S. Congress on governments' concrete actions to meet the minimum standards. Foreign governments that do not meet the minimum standards and are not making significant efforts to do so may be subject to restrictions on nonhumanitarian, nontrade-related foreign assistance from the United States, as defined by the TVPA. Submissions must be made in writing to the Office to Monitor and Combat Trafficking in Persons at the Department of State by February 1, 2023. Please refer to the
Submissions must be received by 5 p.m. on February 1, 2023.
Written submissions and supporting documentation may be submitted by the following method:
•
Submissions may include written narratives that answer the questions presented in this Notice, research, studies, statistics, fieldwork, training materials, evaluations, assessments, and other relevant evidence of local, state/provincial, and federal/central government efforts. To the extent possible, precise dates and numbers of officials or citizens affected should be included. Questions below seek to gather information and updates from the details provided and assessment on government efforts made in the 2022 TIP Report.
Furthermore, we request information on the government's treatment of “underserved communities,” including how the government may have systemically denied opportunities to a community to participate in aspects of economic, social, and civic life that has led to heighted risk to human trafficking or how the government's anti-trafficking response may have treated certain groups differently.
Written narratives providing factual information should provide citations of sources, and copies of and links to the source material should be provided. Please send electronic copies of the entire submission, including source material. If primary sources are used, such as research studies, interviews, direct observations, or other sources of quantitative or qualitative data, provide details on the research or data-gathering methodology and any supporting documentation. The Department only includes in the TIP Report information related to trafficking in persons as defined by the TVPA; it does not include, and is therefore not seeking, information on prostitution, migrant smuggling, visa fraud, or child abuse, unless such crimes also involve the elements of sex trafficking or forced labor.
• The recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act that is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.
○ Persons under age 18 in commercial sex are trafficking in persons victims regardless of whether force, fraud, or coercion were involved.
• The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion, for the purposes of involuntary servitude, peonage, debt bondage, or slavery.
○ Forced labor may take the form of domestic servitude, forced begging, forced criminal activity (
• Children recruited or used as soldiers or for labor or services can be a severe form of human trafficking when the activity involves force, fraud, or
The Department prepares the TIP Report with information from across the U.S. government, foreign government officials, nongovernmental and international organizations, survivors of trafficking in persons, published reports, and research related to every region. The TIP Report focuses on concrete actions that governments take to fight trafficking in persons, including prosecutions, convictions, and sentences for traffickers, as well as victim identification and protection measures and prevention efforts. Each TIP Report narrative also includes prioritized recommendations for each country. These recommendations are used to assist the Department in measuring governments' progress from one year to the next and determining whether governments meet the minimum standards for the elimination of trafficking in persons or are making significant efforts to do so.
The TVPA creates a four-tier ranking system. Tier placement is based principally on the extent of concrete government action to combat trafficking. The Department first evaluates whether the government fully meets the TVPA's minimum standards for the elimination of trafficking. Governments that do so are placed on Tier 1. For other governments, the Department considers the extent of such efforts. Governments that are making significant efforts to meet the minimum standards are placed on Tier 2. Governments that do not fully meet the minimum standards and are not making significant efforts to do so are placed on Tier 3. Finally, the Department considers Special Watch List criteria and, when applicable, places countries on Tier 2 Watch List. For more information, the 2022 TIP Report can be found at
Since the inception of the TIP Report in 2001, the number of countries included and ranked has more than doubled; the 2022 TIP Report included 188 countries and territories. Around the world, the TIP Report and the promising practices reflected therein have inspired legislation, national action plans, policy implementation, program funding, protection mechanisms that complement prosecution efforts, and a stronger global understanding of this crime.
Since 2003, the primary reporting on the United States' anti-trafficking activities has been through the annual Attorney General's Report to Congress and Assessment of U.S. Government Activities to Combat Human Trafficking (“AG Report”) mandated by section 105 of the TVPA (22 U.S.C. 7103(d)(7)). Since 2010, the TIP Report, through a collaborative interagency process, has included an assessment of U.S. government anti-trafficking efforts in light of the minimum standards to eliminate trafficking in persons set forth by the TVPA.
The TVPA sets forth the minimum standards for the elimination of trafficking in persons as follows:
(1) The government of the country should prohibit severe forms of trafficking in persons and punish acts of such trafficking.
(2) For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape or kidnapping or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault.
(3) For the knowing commission of any act of a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the heinous nature of the offense.
(4) The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons.
For purposes of (4) above, the following factors should be considered as indicia of serious and sustained efforts to eliminate severe forms of trafficking in persons:
(1) Whether the government of the country vigorously investigates and prosecutes acts of severe forms of trafficking in persons, and convicts and sentences persons responsible for such acts, that take place wholly or partly within the territory of the country, including, as appropriate, requiring incarceration of individuals convicted of such acts. For purposes of the preceding sentence, suspended or significantly reduced sentences for convictions of principal actors in cases of severe forms of trafficking in persons shall be considered, on a case-by-case basis, whether to be considered an indicator of serious and sustained efforts to eliminate severe forms of trafficking in persons. After reasonable requests from the Department of State for data regarding investigations, prosecutions, convictions, and sentences, a government which does not provide such data, consistent with a demonstrably increasing capacity of such government to obtain such data, shall be presumed not to have vigorously investigated, prosecuted, convicted or sentenced such acts.
(2) Whether the government of the country protects victims of severe forms of trafficking in persons and encourages their assistance in the investigation and prosecution of such trafficking, including provisions for legal alternatives to their removal to countries in which they would face retribution or hardship, and ensures that victims are not inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts as a direct result of being trafficked, including by providing training to law enforcement and immigration officials regarding the identification and treatment of trafficking victims using approaches that focus on the needs of the victims.
(3) Whether the government of the country has adopted measures to prevent severe forms of trafficking in persons, such as measures to inform and educate the public, including potential victims, about the causes and consequences of severe forms of trafficking in persons, measures to establish the identity of local populations, including birth registration, citizenship, and nationality, measures to ensure that its nationals who are deployed abroad as part of a diplomatic, peacekeeping, or other similar mission do not engage in or facilitate severe forms of trafficking in persons or exploit victims of such trafficking, a transparent system for remediating or punishing such public officials as a deterrent, measures to
(4) Whether the government of the country cooperates with other governments in the investigation and prosecution of severe forms of trafficking in persons and has entered into bilateral, multilateral, or regional law enforcement cooperation and coordination arrangements with other countries.
(5) Whether the government of the country extradites persons charged with acts of severe forms of trafficking in persons on substantially the same terms and to substantially the same extent as persons charged with other serious crimes (or, to the extent such extradition would be inconsistent with the laws of such country or with international agreements to which the country is a party, whether the government is taking all appropriate measures to modify or replace such laws and treaties so as to permit such extradition).
(6) Whether the government of the country monitors immigration and emigration patterns for evidence of severe forms of trafficking in persons and whether law enforcement agencies of the country respond to any such evidence in a manner that is consistent with the vigorous investigation and prosecution of acts of such trafficking, as well as with the protection of human rights of victims and the internationally recognized human right to leave any country, including one's own, and to return to one's own country.
(7) Whether the government of the country vigorously investigates, prosecutes, convicts, and sentences public officials, including diplomats and soldiers, who participate in or facilitate severe forms of trafficking in persons, including nationals of the country who are deployed abroad as part of a diplomatic, peacekeeping, or other similar mission who engage in or facilitate severe forms of trafficking in persons or exploit victims of such trafficking, and takes all appropriate measures against officials who condone or enable such trafficking. A government's failure to appropriately address public allegations against such public officials, especially once such officials have returned to their home countries, shall be considered inaction under these criteria. After reasonable requests from the Department of State for data regarding such investigations, prosecutions, convictions, and sentences, a government which does not provide such data, consistent with a demonstrably increasing capacity of such government to obtain such data, shall be presumed not to have vigorously investigated, prosecuted, convicted, or sentenced such acts.
(8) Whether the percentage of victims of severe forms of trafficking in the country that are non-citizens of such countries is insignificant.
(9) Whether the government has entered into effective, transparent partnerships, cooperative arrangements, or agreements that have resulted in concrete and measurable outcomes with—
(A) domestic civil society organizations, private sector entities, or international nongovernmental organizations, or into multilateral or regional arrangements or agreements, to assist the government's efforts to prevent trafficking, protect victims, and punish traffickers; or
(B) the United States toward agreed goals and objectives in the collective fight against trafficking.
(10) Whether the government of the country, consistent with the capacity of such government, systematically monitors its efforts to satisfy the criteria described in paragraphs (1) through (8) and makes available publicly a periodic assessment of such efforts.
(11) Whether the government of the country achieves appreciable progress in eliminating severe forms of trafficking when compared to the assessment in the previous year.
(12) Whether the government of the country has made serious and sustained efforts to reduce the demand for—
(A) commercial sex acts; and
(B) participation in international sex tourism by nationals of the country.
Submissions should include, but need not be limited to, answers to relevant questions below for which the submitter has direct professional experience. Citations to source material should also be provided. Note the country or countries that are the focus of the submission. Please see the
1. What were the government's major accomplishments in addressing human trafficking since April 1, 2022? In what significant ways have the government's efforts to combat trafficking in persons changed in the past year? How have new laws, regulations, policies, or implementation strategies (
2. Over the past year, what were the greatest deficiencies in the government's anti-trafficking efforts? What were the limitations on the government's ability to address human trafficking problems in practice?
3. Did the COVID-19 pandemic affect the government's efforts to coordinate, execute, and monitor its anti-trafficking response across its prosecution, protection, and prevention efforts? How have anti-trafficking officials, units, and coordinating bodies continued to operate and adapt?
4. Please provide additional information and/or recommendations to improve the government's anti-trafficking efforts overall.
5. Please highlight effective strategies and practices that other governments could consider adopting.
6. Please provide observations regarding the implementation of existing laws, policies, and procedures. Are there gaps in anti-trafficking legislation that could be amended to improve the government's response? Are there any government policies that have undermined or otherwise negatively affected anti-trafficking efforts within that country?
7. Do government officials understand the nature of all forms of trafficking? If not, please provide examples of misconceptions or misunderstandings. Did the government effectively provide or support anti-trafficking trainings for officials? If not, how could they be improved?
8. Please provide observations on overall anti-trafficking law enforcement efforts and the efforts of police and prosecutors to pursue trafficking cases. Is the government equally vigorous in pursuing forced labor and sex trafficking, internal and transnational trafficking, and crimes that involve its own nationals or foreign citizens? Were anti-trafficking laws equitably enforced, or were certain communities disproportionately affected?
9. Please note any efforts to investigate and prosecute suspects for knowingly soliciting or patronizing a sex trafficking victim to perform a commercial sex act.
10. Does law enforcement pursue trafficking cases that would hold
11. Do judges appear appropriately knowledgeable and sensitized to trafficking cases? Do they implement and encourage trauma-informed practices in their courts?
12. Were there allegations of official complicity in trafficking crimes, via contacts, media, or other sources, including of state-sponsored forced labor? If so, what measures did the government take to end such practices? What proactive measures did the government take to prevent official complicity in trafficking in persons crimes? How did the government respond to reports of complicity that arose during the reporting period, including investigations, prosecutions, convictions, and sentencing of complicit officials? Were these efforts sufficient?
13. Is there evidence that nationals of the country deployed abroad as part of a diplomatic, peacekeeping, or other similar mission have engaged in or facilitated trafficking, including in domestic servitude? Has the government vigorously investigated, prosecuted, convicted, and sentenced nationals engaged in these activities?
14. Did the government make a coordinated, proactive effort to identify victims of all forms of trafficking? Were there any new (or changes to preexisting) formal/standard procedures for screening for trafficking, including of individuals in immigration detention or removal proceedings, and for victim referral to protection services? If so, are those procedures sufficient, and did the government implement them? Did officials effectively coordinate among one another and with relevant NGOs to conduct screenings and refer victims to care? If commercial sex is legalized or decriminalized in the country, how did health officials, labor inspectors, or police identify trafficking victims among persons involved in commercial sex? If commercial sex is illegal, did the government proactively identify trafficking victims during law enforcement operations or other encounters with commercial sex establishments?
15. Does the government operate or fund any trafficking-specific hotlines (including those run by NGOs)? Did calls on government- or NGO-operated hotlines lead to victim identification, victim referral to care, and/or criminal investigations?
16. Were there any new (or changes to preexisting) services available for victims and survivors (legal, medical, food, shelter, interpretation, mental health care, employment, training, etc.)? If NGOs provide the services, does the government adequately support their work either financially or otherwise? Did all victims and survivors of both labor and sex trafficking—regardless of citizenship, gender identity, racial/ethnic identity, sexual orientation, religious affiliation, and physical ability—receive the same quality and level of access to services?
17. What was the overall quality of victim care? How could victim services be improved? Are services victim-centered and trauma-informed? Were benefits linked to whether a victim assisted law enforcement or participated in a trial, or whether a trafficker was convicted? Could victims choose independently whether to enter a shelter, and could they leave at will if residing in a shelter? Could victims seek employment and work while receiving assistance?
18. What is the level of cooperation, communication, and trust between service providers and law enforcement?
19. Were there means by which victims could obtain restitution from defendants in criminal cases or file civil suits against traffickers for damages, and did this happen in practice? Did prosecutors request and/or courts order restitution in all cases where it was required, and if not, why?
20. Please provide observations on trafficking victims and survivors' ability to access justice, as they define it, and the treatment of survivors throughout the criminal legal process. How did the government encourage victims to assist in the investigation and prosecution of trafficking, and did it do so in a trauma-informed way? How did the government protect victims during the trial process and ensure victims were not re-traumatized during participation in the process? If a victim was a witness in a court case, was the victim permitted to obtain employment, move freely about the country, or leave the country pending trial proceedings? In what ways could the government increase support for victims in prosecutions against the traffickers?
21. Did the government provide, through a formal policy or otherwise, temporary or permanent residency status, or other relief from deportation, for foreign national victims of human trafficking who may face retribution or hardship in the countries to which they would be deported? Were foreign national victims given the opportunity to seek legal employment while in this temporary or permanent residency? Were such benefits linked to whether a victim assisted law enforcement, whether a victim participated in a trial, or whether there was a successful prosecution? Does the government repatriate victims who wish to return home or assist with third country resettlement? Are victims awaiting repatriation or third country resettlement offered services? Are victims indeed repatriated, or are they deported?
22. Does the government effectively assist its nationals exploited abroad? Does the government work to ensure victims receive adequate assistance and support for their repatriation while in destination countries? Does the government provide adequate assistance to repatriated victims after their return to their countries of origin, and if so, what forms of assistance?
23. Does the government arrest, detain, imprison, or otherwise punish trafficking victims (whether or not identified as such by authorities) for unlawful acts traffickers compelled them to commit (forgery of documents, illegal immigration, unauthorized employment, prostitution, theft, or drug production or transport, etc.)? If so, do these victims disproportionately represent a certain gender, race, ethnicity, or other group or particular type of trafficking?
24. What efforts has the government made to prevent human trafficking? Did the government enforce any policies that further marginalized communities already overrepresented among trafficking victims, increasing their risk to human trafficking? If so, did it take efforts to address those policies?
25. If the government had a national action plan to address trafficking, how was it implemented in practice? Were NGOs and other relevant civil society stakeholders consulted in the development and implementation of the plan?
26. Please describe any government-funded anti-trafficking information or education campaigns or training, whether aimed at the public or at specific sectors or stakeholders/actors. What strategies did the campaigns employ to ensure messaging and images did not legitimize and/or perpetuate harmful or racialized narratives and/or stereotypes about what victims, survivors, and perpetrators look like? Were campaign materials readily available, cost-free, and accessible in various languages, including braille? Does the government provide financial support to NGOs working to promote public awareness?
27. Did the government seek and include the input of survivors in
28. How did the government regulate, oversee, and screen for trafficking indicators in the labor recruitment process, including for both licensed and unlicensed recruitment and placement agencies, individual recruiters, sub-brokerages, and microfinance lending operations? Did the government prohibit (in any context) charging workers recruitment fees and prohibit the recruitment of workers through knowingly fraudulent job offers (including misrepresenting wages, working conditions, location, or nature of the job), contract switching, and confiscating or otherwise denying workers access to their identity documents? If there are laws or regulations on recruitment, did the government effectively enforce them? Did the government allow migrant workers to change employers in a timely manner without obtaining special permissions?
29. Did the government coordinate with other governments (
30. Did government policies, regulations, or agreements relating to migration, labor, trade, and investment facilitate vulnerabilities to, or incidence of, forced labor or sex trafficking? If so, what actions did the government take to ensure that its policies, regulations, and agreements relating to migration, labor, trade, border security measures, and investment did not facilitate trafficking?
31. Did the government take tangible action to prevent forced labor in domestic or global supply chains? Did the government make any efforts to prohibit and prevent trafficking in the supply chains of its own public procurement?
32. If the government has entered into bilateral, multilateral, or regional anti-trafficking information-sharing and cooperation arrangements, are they effective and have they resulted in concrete and measurable outcomes? If not, why?
33. Did the government provide assistance to other governments in combating trafficking in persons through trainings or other assistance programs?
34. What measures has the government taken to reduce the participation by nationals of the country in international and domestic child sex tourism?
35. Please provide any information about trafficking trends and government anti-trafficking efforts in non-sovereign territories and semi-autonomous regions to prosecute traffickers, identify and provide services to victims, and prevent trafficking.
36. Were there any changes to the country's trafficking situation, including the forms of trafficking that occur, industries and sectors in which traffickers exploit victims, countries/regions in which traffickers recruit victims, locations and regions in which trafficking occurs, and recruitment methods? Are citizens of the country identified as victims of human trafficking abroad? As COVID-19-related restrictions begin to lift in many parts of the world, were there additional changes in trafficking trends?
37. What groups, including underserved communities, are at particular risk of human trafficking? Underserved communities are populations sharing a particular characteristic, as well as geographic communities, that have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life. This term may include, but is not limited to, women and girls, persons with disabilities, indigenous peoples, people of African descent, racial and ethnic minorities, refugees and internally displaced people, religious minorities, LGBTQI+ persons, rural residents, migrants, as well as those who are otherwise adversely affected by persistent poverty or inequality.
38. Chinese/Cuban/North Korean workers: Are any of these populations subjected to or at high risk of forced labor in the country as part of government-to-government agreements and/or in foreign government-affiliated projects?
39. Please provide any information about trafficking trends or risk factors stemming from slow-onset, climate-related change and sudden-onset climate-related disasters, as well as any efforts to mitigate these vulnerabilities.
40. Using the definition of “child soldier” as defined by the Child Soldiers Prevention Act of 2008 (CSPA), describe instances, cases, and reports, including anecdotal reports, of:
a. Use of any person under the age of 18 in direct hostilities as a member of governmental armed forces, police, or other security forces;
b. Conscription or forced recruitment of persons under the age of 18 into governmental armed forces, police, or other security forces;
c. Voluntary recruitment of any person under 15 years of age into governmental armed forces, police, or other security forces;
d. Recruitment (forced or voluntary) or use in hostilities of persons under the age of 18 by armed groups distinct from the armed forces of a state.
e. Abuse of male and female children recruited by governmental armed forces, police, or other security forces, and government-supported armed groups (
41. Did the government provide support to an armed group that recruits and/or uses child soldiers? What was the extent of the support (
42. Describe any government efforts to prevent or end child soldier recruitment or use, including efforts to disarm, demobilize, and reintegrate former child soldiers. (
On November 18, 2022, Montana Rail Link, Inc. (MRL), a Class II rail carrier, filed a petition under 49 U.S.C. 10502 for exemption from the prior approval requirements of 49 U.S.C. 10903 to discontinue service over approximately 656.47 miles of non-contiguous rail line, which are leased from BNSF Railway Company (BNSF), and to discontinue MRL's bridge-only trackage rights over approximately 96.04 miles of rail line owned by BNSF (collectively, the Lines). The 656.47 miles of rail line over which MRL seeks discontinuance authority are comprised of the following segments (collectively, Leased Premises): a segment from milepost 209.91 at Huntley, Mont., to milepost 17.8 at Spurling, Mont. (1st Subdivision); a segment from milepost 17.8 at Spurling to milepost 238.4 at Helena, Mont. (2nd Subdivision); a segment from milepost 0.0 at Helena to milepost 119.31 at Missoula, Mont. (3rd Subdivision); a segment from milepost 119.31 at Missoula to milepost 118.7 at Sandpoint Junction, Idaho (4th Subdivision); a segment from milepost 0.0 at De Smet, Mont., to milepost 64.27 at Paradise, Mont. (10th Subdivision); a segment from milepost 15.15 at Laurel, Mont., to milepost 514.47 south of Laurel; a segment from milepost 0.0 at Moss Main, Mont., to milepost 0.50 at a point north of Moss Main. The 96.04 miles of rail line over which MRL seeks to discontinue bridge-only trackage rights include the following segments (collectively, Trackage Rights Lines): a segment from milepost 2.79 at Sand Point, Idaho, to milepost 68.17 at Spokane, Wash.; a segment from milepost 68.17 to milepost 69.0 near Spokane, Wash.; a segment from milepost 0.74 to milepost 1.0 near Moss Main; and a segment from milepost 51.07 near Garrison, Mont., to milepost 21.5 south of Warm Springs, Mont.
The Lines include the following stations on the 1st Subdivision: Jones Jct. at milepost 209.9, Huntley at milepost 213.1, East Billings at milepost 223.4, Billings at milepost 225.8 and milepost 0.0, Shilo at milepost 11.5, Moss Main at milepost 12.1, Laurel Yard at milepost 13.7, and West Laurel at milepost 15.5. The Lines include the following stations on the 2nd Subdivision: West Laurel at milepost 15.5, Spurling at milepost 17.7, Brodsky at milepost 19.8, Park City at milepost 24.3, Rapids at milepost 32.3, Columbus at milepost 40.3, Craver at milepost 47.6, Reed Point at milepost 56.9, Quebec at milepost 62.0, Greycliff at milepost 70.2, Big Timber at milepost 80.9, Carney at milepost 90.9, Elton at milepost 102.3, Livingston East Long Lead at milepost 111.9, Livingston at milepost 115.4, Livingston West Long Lead at milepost 116.0, Muir at milepost 127.1, West End at milepost 128.6, Bozeman at milepost 140.4, Belgrade at milepost 149.9, Manhattan at milepost 159.3, Logan at milepost 164.6, Missouri at milepost 172.4, Clarkston at milepost 178.8, Lombard at milepost 184.9, Toston at milepost 194.2, Townsend at milepost 205.3, Winston at milepost 218.3, Louisville at milepost 227.4, Helena East at milepost 235.1, Carter St. at milepost 236.9, and Helena at milepost 238.43 and milepost 0.0. The Lines include the following stations on the 3rd Subdivision: Helena at milepost 0.0, Helena Jct. at milepost 3.0, Tobin at milepost 5.1, Austin at milepost 12.9, Skyline at milepost 18.6, Blossburg at milepost 20.5, Elliston at milepost 28.9, CP Avon at milepost 34.9, Bradley at milepost 39.6, Garrison at milepost 50.9, Phosphate at milepost 54.8, Jens at milepost 61.4, Drummond at milepost 70.7, Bearmouth at milepost 80.1, Nimrod at milepost 88.7, Clinton at milepost 102.6, Bonner at milepost 113.2, and Missoula at milepost 119.3. The Lines include the following stations on the 4th Subdivision: Missoula at milepost 119.3, De Smet at milepost 125.9, Frenchtown at milepost 136.6, Lothrop at milepost 150.8, Rivulet at milepost 167.6, Westfall at milepost 176.2, Superior at milepost 183.6, CP St. Regis at milepost 196.2, Toole at milepost 201.9, Paradise at milepost 219.2 and milepost 0.0, Plains at milepost 6.0, Eddy at MP 20.6, Thompson Falls at milepost 31.5, Childs at milepost 46.4, Tuscor at milepost 61.6, Noxon at milepost 72.5, Heron at milepost 80.1, Colby at milepost 91.1, Hope at milepost 103.5, Kootenai at milepost 116.9, and Sandpoint Jct. at milepost 118.7. The Lines include the following stations on the 10th Subdivision: De Smet at milepost 0.0, Evaro at milepost 10.6, Arlee at milepost 21.1, Ravalli at milepost 30.8, Dixon at milepost 37.8, Perma at milepost 51.5, and Paradise at milepost 64.2.
According to MRL, it and BNSF, the owner of the Leased Premises and the Trackage Rights Lines, have mutually agreed that MRL will terminate its lease and trackage rights operations and BNSF will resume providing service to shippers on the Leased Premises. BNSF currently provides services on the Trackage Rights Lines and will continue to do so after the discontinuance. MRL states that the proposed discontinuance will therefore leave no customer on the Leased Premises or the Trackage Rights Lines without access to railroad common carrier service, as any such customers would have service via BNSF.
MRL states that the Lines may contain federally granted rights-of-way. MRL also states that it will make any documentation that it may have concerning federally-granted rights-of-way available promptly to those requesting it.
As a condition to this exemption, any employee adversely affected by the discontinuance of service shall be protected under
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final
Because this is a discontinuance proceeding and not an abandonment, interim trail use/rail banking and public use conditions are not appropriate. Because there will be environmental review during any subsequent abandonment, this discontinuance does not require an environmental review.
Any offer of financial assistance (OFA) for subsidy under 49 CFR 1152.27(b)(2) will be due no later than 120 days after the filing of the petition for exemption, or 10 days after service of a decision granting the petition for exemption, whichever occurs sooner.
All filings in response to this notice must refer to Docket No. AB 575 (Sub-No. 2X) and must be filed with the Surface Transportation Board either via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on MRL's representative, Rose-Michele Nardi, Baker & Miller PLLC, 2401 Pennsylvania Ave. NW, Suite 300, Washington, DC 20037. Replies to the petition are due on or before December 28, 2022.
Persons seeking further information concerning discontinuance procedures may contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245-0238 or refer to the full abandonment and discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Office of Environmental Analysis at (202) 245-0294. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339.
Board decisions and notices are available at
By the Board, Mai T. Dinh, Director, Office of Proceedings.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before January 9, 2023.
You may submit comments identified by DOT Docket Number MARAD-2022-0249 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel WHENSDAY is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0249 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before January 9, 2023.
You may submit comments identified by DOT Docket Number MARAD-2022-0251 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel SHIRLEY MAE is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0251 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before January 9, 2023.
You may submit comments identified by DOT Docket Number MARAD-2022-0252 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel SWEET CHARIOT is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0252 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before January 9, 2023.
You may submit comments identified by DOT Docket Number MARAD-2022-0250 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel THE PURPUS is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0250 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before January 9, 2023.
You may submit comments identified by DOT Docket Number MARAD-2022-0248 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email James.Mead
As described in the application, the intended service of the vessel THE ISLANDERS is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0248 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on
By order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of petition for a non-compliance order.
Soft Lights Foundation (Petitioner) has petitioned NHTSA requesting NHTSA to issue an order of non-compliance for certain model year (MY) 2021 Tesla Model 3, 2021 Ford Bronco, and 2021 Rivian R1T motor vehicles based on its assertions that these motor vehicles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108,
Leroy Angeles, Office of Vehicle Safety NHTSA, (202) 366-5304.
Under 49 U.S.C. 30162(a)(2) and 49 CFR part 552.1, interested persons can petition NHTSA to begin a proceeding to make a determination that a motor vehicle or an item of replacement equipment does not comply with an applicable FMVSS. Upon receipt of a properly filed petition, the Agency conducts a technical review of the petition, material submitted with the petition and any additional information. 49 U.S.C. 30162(a)(2); 49 CFR 552.6. After conducting the technical review and considering appropriate factors, the Agency will grant or deny the petition.
Soft Lights Foundation has alleged that certain MY 2021 Tesla Model 3, MY 2021 Ford Bronco, and MY 2021 Rivian R1T motor vehicles, herein also known as “subject vehicles,” do not fully comply with the requirements of paragraphs S4, S5, S10.1.1, S14.1.1, and Table XIX of FMVSS No. 108,
MY 2021 Tesla Model 3, MY 2021 Ford Bronco, and MY 2021 Rivian R1T motor vehicles are potentially involved. These vehicles are likely equipped with integral beam headlamps that utilize Light Emitting Diode (“LED”) technology.
Paragraphs S4, S5, S10.1.1, S14.1.1, and Table XIX of FMVSS No. 108 include the requirements relevant to this petition as cited by Soft Lights Foundation.
Paragraph S4 defines a filament as that part of the light source or light emitting element(s), such as a resistive element, the excited portion of a specific mixture of gases under pressure, or any part of other energy conversion sources, that generates radiant energy which can be seen.
Paragraph S5 addresses references to SAE publications where each required lamp, reflective device, and item of associated equipment must be designed to conform to the requirements of applicable SAE publications as referenced and subreferenced in this standard. The words “it is recommended that,” “recommendations,” or “should be” appearing in any SAE publication referenced or subreferenced in this standard must be read as setting forth mandatory requirements. S10.1.1 specifies headlighting system requirements for vehicle headlighting systems. Wherein this section states that each passenger car, multipurpose passenger vehicle, truck and bus must be equipped with a headlighting system conforming to the requirements of Table II and this standard.
S14.1.1 specifies physical and photometry test procedures and performance requirements. Wherein this sections states that each lamp, reflective device, item of conspicuity treatment, and item of associated equipment required or permitted by this standard must be designed to conform to all applicable physical test performance requirements specified for it.
Table XIX specifies the minimum and maximum photometric intensities at specific test points for the lower beam headlamp.
The views and arguments presented in this section are the views and arguments provided by Soft Lights Foundation. They do not reflect the views of the Agency. Soft Lights Foundation described an alleged noncompliance for the subject vehicles and stated their belief that the subject vehicles do not comply with FMVSS No. 108. The subject vehicles are equipped with LED headlamps. The subject Rivian R1T vehicles are also equipped with Daytime Running Lights (DRLs).
According to Soft Lights Foundation, the subject vehicles do not meet federal safety regulation as specified in FMVSS No. 108 for the following reasons:
1. Congress has determined that visible light from an electronic device is different than light from a burning filament or gas discharge and that this visible electromagnetic radiation from an electronic product requires special federal regulations. Congress has determined that “visible electromagnetic radiation from an electronic product requires special federal regulations.”
2. The Food and Drug Administration (FDA) has not yet developed safety regulations for LED products, and thus LED headlamps are an unregulated product which have not been deemed safe.
3. FMVSS No. 108 is only applicable to spherical/point light sources and specifies intensity minimums and maximums using luminous intensity measured in candela. Only vehicles using spherical/point light sources can be compliant with FMVSS No. 108.
4. LED lights are flat-surface sources, which results in spatially non-uniform energy, and which creates a Lambertian mathematical shape. Brightness is measured with luminance in nits (candela per square meter). NHTSA has not yet developed the health and safety regulations for surface source LED headlamps and has not specified the necessary restrictions that might make LED headlamps safe. The characteristics specific to LED headlamps that should be regulated include restrictions on spatial non-uniformity, peak luminance, spectral power distribution, and square wave flicker.
5. Tesla, Ford, and Rivian failed to petition NHTSA for amendment of
6. FMVSS No. 108 contains no tables for specifying the minimum or maximum peak luminance of an LED headlight system and does not specify or refer to measurement requirements that involve a laboratory setting and precision measurement devices. Thus, a vehicle with an LED headlight system is non-compliant with FMVSS No. 108 because an LED headlight system cannot meet the requirements of Table XIX and there are no tables in FMVSS No. 108 that are applicable to an LED light source.
7. LED headlights and Daytime Running Lights are dangerous due to the excessive glare, non-uniform luminance, excessive peak luminance, and square wave flicker, putting public comfort, health, and safety at risk.
Soft Lights Foundation is requesting NHTSA to issue an Order of Non-Compliance to Tesla, Ford, and Rivian as well as for NHTSA to notify the public that LED headlamps do not comply with FMVSS No. 108.
NHTSA has reviewed the information Soft Lights Foundation provided and additional material in response to Soft Lights Foundation's statements that Congress stated LED products require special federal regulations, that the FDA has not developed regulations specific to LED products, and therefore they are unregulated products that have not been deemed safe.
First, the FDA has authority to regulate certain aspects of LED products as radiation-emitting devices.
The issue that the petition presents to NHTSA, however, is whether NHTSA should determine (or open an investigation to determine) that the headlamps in the subject vehicles comply with FMVSS No. 108. In addressing this, NHTSA is guided by the National Traffic and Motor Vehicle Safety Act, as amended and recodified, 49 U.S.C. chapter 301, and the requirements set out in FMVSS No. 108. The Petitioner asserts that “[o]nly vehicles using spherical/point light sources can be compliant with FMVSS No. 108.” NHTSA understands “spherical/point light sources” to refer to filament (
While the Agency acknowledges that LED light sources have different physical properties when compared to halogen, incandescent, or a high-intensity discharge light source, the light emitted by integral beam headlamps utilizing any of these light sources is measurable by current laboratory test equipment and can be evaluated based on the performance requirements in FMVSS No. 108. In a laboratory setting, a photometer is used to measure, in candela, the amount of light emitted by a lighting device in a particular direction over multiple test points. This measurement can determine whether a vehicle's integral beam headlamp pattern meets the photometry requirements of FMVSS No. 108. Further, the Office of Vehicle Safety Compliance's annual test program has found evidence that LED headlamp assemblies can meet the current requirements of FMVSS No. 108,
Accordingly, regarding Soft Lights Foundation's argument that, Tesla, Ford, and Rivian “failed to petition NHTSA for amendment of existing regulations to allow use of LED technology for headlamps and has not received authorization from NHTSA,” neither a petition, nor authorization, is necessarily required for a manufacturer to manufacture a vehicle that is equipped with FMVSS No. 108-compliant integral beam headlamps using LED technology. NHTSA does not “authorize” or “approve” motor vehicles or motor vehicle equipment. Under NHTSA's self-certification system, the manufacturer is legally bound to ensure their vehicles meet all applicable FMVSSs, including FMVSS No. 108.
With respect to the Soft Lights Foundation's statement that “LED headlights and Daytime Running Lights are dangerous due to the excessive glare, non-uniform luminance, excessive peak luminance, and square wave flicker, putting public comfort, health and safety at risk,” NHTSA believes the current research supports that FMVSS No. 108 contains the appropriate requirements to address these areas. NHTSA agrees that glare can have a negative safety impact and believes FMVSS No. 108 addresses that issue. As NHTSA has stated, the requirements of FMVSS No. 108 apply to LED headlamps. Photometric requirements stated in FMVSS No. 108 Table XIX specify candela maximums over several test points to prevent excess light which can result in glare and other issues. While LED integral beam headlamps can be made to have a smaller footprint compared to lamps that use halogen or high-intensity discharge (HID) light sources, which can be perceived to be more uncomfortable at closer distances, an agency report to Congress, “Nighttime Glare and Driving Performance,” stated that when viewed from more than approximately 100 feet, the size of a headlamp has little impact on discomfort and that no research has identified any impact of oncoming headlamp size on the visibility of the person experiencing glare.
NHTSA also wants to express appreciation to the Petitioner for bringing to its attention health concerns that the Petitioner associates with LED headlamps. NHTSA takes these concerns seriously. NHTSA, as an agency focused on automotive safety, also recognizes the expertise of its sister agencies that are health-focused, such as the FDA.
NHTSA wants to be clear that its decision in connection with these petitions is intended to address integral beam headlamps that use LED lighting technology and does not address other headlamp types like replaceable bulb headlamps or sealed beam headlamps. FMVSS No. 108 specifies performance requirements for headlamp systems. The most common types of headlamp systems are integral beam (S10.14) and replaceable bulb (S10.15, S11) systems. The standard does not mandate a light source type for integral beam headlamps, so, as we explained above, LED light sources are permitted in an integral beam headlamp,
In consideration of the foregoing, NHTSA does not believe that a formal investigation is warranted, and NHTSA has decided to deny Soft Lights Foundation's petitions for non-compliance orders on the subject vehicles. After full consideration of appropriate factors, Soft Lights Foundation's petitions are denied.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning interest charges on domestic international sales corporation related deferred tax liabilities.
Written comments should be received on or before February 6, 2023 to be assured of consideration
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of the regulation should be directed to Kerry Dennis at (202) 317-5751, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service, Department of the Treasury.
Request for nominations.
The Internal Revenue Service (IRS) is requesting applications from individuals with experience in such areas as state tax administration, cybersecurity and information security, tax software development, tax preparation, payroll and tax financial product processing, systems management and improvement, implementation of customer service initiatives, public administration, and consumer advocacy to be considered for selection as members of the Electronic Tax Administration Advisory Committee (ETAAC).
Written nominations must be received on or before January 31, 2023.
Applications may be submitted via fax to 855-811-8020 or via email to
Alec Johnston at (202) 317-4299, or send an email to
The IRS strongly encourages representatives from consumer groups with an interest in tax issues to apply.
Nominations should describe and document the proposed member's qualifications for ETAAC membership, including the applicant's knowledge of regulations and the applicant's past or current affiliations and involvement with the particular tax segment or segments of the community that the applicant wishes to represent on the committee. Applications will be accepted for current vacancies from qualified individuals and from professional and public interest groups that wish to have representation on ETAAC. Submissions must include an application and resume.
ETAAC provides continuing input into the development and implementation of the IRS organizational strategy for electronic tax administration. The ETAAC provides an organized public forum for discussion of electronic tax administration issues—such as prevention of identity theft-related refund fraud—in support of the overriding goal that paperless filing should be the preferred and most convenient method of filing tax and information returns. ETAAC members work closely with the Security Summit, a joint effort of the IRS, state tax administrators and the nation's tax industry, to fight identity theft and refund fraud. ETAAC members convey the public's perceptions of IRS electronic tax administration activities, offer constructive observations about current or proposed policies, programs and procedures, and suggest improvements.
This is a volunteer position. Members will serve three-year terms on the ETAAC to allow for a rotation in membership and ensure different perspectives are represented. Travel expenses within government guidelines will be reimbursed. In accordance with Department of Treasury Directive 21-03, a clearance process including fingerprints, annual tax checks, a Federal Bureau of Investigation criminal check and a practitioner check with the Office of Professional Responsibility will be conducted.
The establishment and operation of the Electronic Tax Administration Advisory Committee (ETAAC) is required by the Internal Revenue Service (IRS) Restructuring and Reform Act of 1998 (RRA 98), Title II, Section 2001(b)(2). ETAAC follows a charter in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C., app. 2. The ETAAC provides continued input into the development and implementation of the IRS's strategy for electronic tax administration. The ETAAC will research, analyze, consider, and make recommendations on a wide range of electronic tax administration issues and will provide input into the development of the strategic plan for electronic tax administration. Members will provide an annual report to Congress by June 30.
Applicants must complete the application form, which includes describing and documenting the applicant's qualifications for ETAAC membership. Applicants must submit a short one or two-page statement including recent examples of specific skills and qualifications as they relate to: cybersecurity and information security, tax software development, tax preparation, payroll and tax financial product processing, systems management and improvement, implementation of customer service initiatives, consumer advocacy and public administration. Examples of critical thinking, strategic planning and oral and written communication are desirable.
An acknowledgement of receipt will be sent to all applicants.
Equal opportunity practices will be followed in all appointments to the ETAAC in accordance with Department of Treasury and IRS policies. The IRS has a special interest in assuring that women and men, members of all races and national origins, and individuals with disabilities have an opportunity to serve on advisory committees. Therefore, IRS extends particular encouragement to nominations from such appropriately qualified individuals.
Department of Veterans Affairs.
Notice.
The Department of Veterans Affairs (VA) announces that the aggregate amounts of assistance available under the Specially Adapted Housing (SAH) grant program will increase by 8.09% for fiscal year (FY) 2023.
The increases in the aggregate amounts outlined in this notice are effective as of October 1, 2022.
Terry Rouch, Assistant Director for Loan Policy and Valuation, Loan Guaranty Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, 202-632-8862. (This is not a toll-free number.)
In accordance with 38 U.S.C. 2102(e), 38 U.S.C. 2102A(b)(2), 38 U.S.C. 2102B(b)(2) and 38 CFR 36.4411, the
Section 2102(e)(2) authorizes the Secretary to increase the aggregate amounts of SAH assistance annually based on a residential home cost-of construction index. The Secretary uses the Turner Building Cost Index for this purpose. See 38 CFR 36.4411(a). Such increase will be equal to the percentage by which the Turner Building Cost Index for the most recent calendar year exceeds that of the next preceding calendar year. If, however, the Turner Building Cost Index for the most recent full calendar year is equal to or less than the next preceding calendar year, the percentage increase will be zero. See 38 CFR 36.4411(b).
In the most recent quarter for which the Turner Building Cost Index is available, second quarter of 2022, the index showed an increase of 8.09% over the index value listed for second quarter of 2021. Turner Construction Company,
Sections 2102A(b)(2) and 2102B(b)(2) require the Secretary to apply the same percentage calculated pursuant to section 2102(e) to grants authorized pursuant to sections 2102A and 2102B. As such, the maximum amount of assistance available under these grants has also increased by 8.09% for FY 2023.
The increases are effective as of October 1, 2022. 38 U.S.C. 2102(e), 38 U.S.C. 2102A(b)(2) and 38 U.S.C. 2102B(b)(2) and 38 CFR 36.4411.
Effective October 1, 2022, the aggregate amount of assistance available for SAH grants made pursuant to 38 U.S.C. 2101(a) is $109,986 during FY 2023.
The maximum TRA grant made to an individual who satisfies the eligibility criteria under 38 U.S.C. 2101(a) and 2102A is $44,299 during FY 2023.
Effective as of October 1, 2022, the aggregate amount of assistance available for SAH grants made pursuant to 38 U.S.C. 2101(b) is $22,036 during FY 2023.
The maximum TRA grant made to an individual who satisfies the eligibility criteria under 38 U.S.C. 2101(b) and 2102A is $7,910 during FY 2023.
Effective as of October 1, 2022, the amount of assistance available for grants made pursuant to 38 U.S.C. 2102B is $100,909 during FY 2023; however, the Secretary may waive this limitation for a Veteran if the Secretary determines a waiver is necessary for the rehabilitation program of the Veteran.
Denis McDonough, Secretary of Veterans Affairs, approved this document on November 29, 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.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is promulgating a Federal Implementation Plan (FIP) under the Clean Air Act (CAA) and the EPA's implementing regulations that consists of emissions control requirements for existing, new, and modified oil and natural gas sources on Indian country lands within the Uintah and Ouray Indian Reservation (also referred to as the U&O Reservation) to address air quality in and around the Uinta Basin Ozone Nonattainment Area in northeast Utah. This U&O FIP establishes volatile organic compound (VOC) emissions control requirements for oil and natural gas production and processing on Indian country lands within the U&O Reservation. These requirements are consistent with those in place in areas within the Basin where the EPA has approved Utah to implement the CAA, and will help ensure that new development of oil and natural gas sources in the Basin will not interfere with attainment of the ozone National Ambient Air Quality Standard (NAAQS). VOC emissions control requirements for existing oil and natural gas sources have already been established in areas within the Basin where the EPA has approved Utah to implement the CAA, but did not exist for most sources on Indian country lands within the U&O Reservation. Additionally, this U&O FIP helps demonstrate that new development on Indian country lands within the U&O Reservation will not necessarily cause or contribute to an ozone NAAQS violation.
This final rule is effective on February 6, 2023.
The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2015-0709. All documents in the docket are listed on the
Ms. Claudia Smith, U.S. EPA, Region 8, Air and Radiation Division, Mail Code 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado 80202-1129, telephone number: (303) 312-6520, email address:
We are finalizing this action using our authority under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11 to promulgate FIP provisions that are necessary and appropriate to protect air quality on the Indian country lands within the U&O Reservation and in nearby communities. The purpose of this U&O FIP is threefold.
First, and primarily, this U&O FIP will improve air quality on the U&O Reservation by addressing emissions from oil and natural gas production and natural gas processing activities on Indian country lands that contribute to the winter ozone problem in the physiographic region known as the Uinta Basin,
Air quality ozone monitoring data from the Uinta Basin in the years 2018, 2019 and 2020 indicates that the three-year average of the fourth maximum ambient air concentration measurements is 76 ppb, which violates the 2015 ozone NAAQS of 70 ppb. On April 13, 2022, the EPA proposed to grant a 1-year attainment date extension for the Uinta Basin Ozone Nonattainment area.
The winter-time ozone formation in the Uinta Basin is caused by emissions of VOC and NO
The CAA does not require an attainment plan for Marginal ozone nonattainment areas.
This final action is driven by the EPA's authority and responsibility to protect air quality in Indian country under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11. Regarding preconstruction review of proposed new or modified sources
This U&O FIP focuses on VOC emission reductions because improvements in winter ozone levels in the Basin are most likely to come from VOC emissions reductions from existing oil and natural gas sources.
Second, the control requirements being finalized are intended to be the same as or consistent with the requirements applicable to similar sources in areas of the Basin where the EPA has approved the UDEQ to implement the CAA, to promote a more consistent regulatory environment across the Basin. Where we are regulating existing equipment or activities that are also covered by EPA standards for the oil and natural gas source category, but do not meet the applicability criteria of those standards, we also strove for consistency with those EPA standards.
Finally, given the number of oil and natural gas projects in the Basin that are already approved or are in the federal review and approval process through evaluations conducted under the National Environmental Policy Act (NEPA) by other federal agencies,
In the preamble to the final National O&NG FIP published on June 3, 2016, the EPA stated that the most appropriate means for addressing air quality concerns on specific reservations due to impacts from oil and natural gas activity is through area- or reservation-specific FIPs, not through the National O&NG FIP. Further, we stated that such FIPs may need to include requirements for existing, new, and modified sources
In summary, this U&O FIP is intended to: (1) improve air quality on Indian country lands within the U&O Reservation; (2) promote a more consistent regulatory environment across the Basin; and (3) ensure that emissions reductions will be achieved that will ensure that new development, under both source-specific minor source permitting and the National O&NG FIP's streamlined construction authorization mechanism for new or modified true minor oil and natural gas sources, will not interfere with attainment of the NAAQS.
The following is a summary of each key requirement in the final action. As explained earlier, the final FIP was developed to maximize air quality improvement, in a manner that promotes a more consistent regulatory environment across all areas in the Uinta Basin, such that covered sources within Indian country on the U&O Reservation will be regulated in a manner similar to how they would be regulated if located in areas in the Basin where EPA has approved the UDEQ to implement the CAA. We attempted to achieve this goal by providing as much consistency as possible in the FIP with current federal standards for the oil and natural gas industry, including NSPS 40 CFR part 60, subparts OOOO and OOOOa (NSPS OOOO and OOOOa); NESHAP 40 CFR part 63, subpart HH (NESHAP HH); and the Control Techniques Guidelines for reducing smog-forming VOC emissions from existing oil and natural gas equipment and processes in certain states and areas with smog problems (Oil and Gas CTG).
That said, we acknowledge that the Agency's thinking on these issues has evolved since we issued NSPS OOOOa and the CTG in 2016. Among other developments, new information and analysis have been presented in the Oil and Natural Gas Sector Climate Review Proposed Rule that will likely be relevant for reducing emissions on the U&O Reservation. When the EPA proposed this FIP, however, the Agency had not yet proposed that other rule, and the Climate Review Rule is still being developed. In the interest of moving quickly to achieve emissions reductions, the EPA finds that it is necessary and appropriate to finalize this FIP now. Our assessment of new, potentially relevant information will continue in the context of the Oil and Natural Gas Sector Climate Review Rule. If we finalize that proposed national rule in the future, its
The EPA has projected the compliance costs, emissions reductions, and benefits that may result from the U&O FIP. The discussion of projected costs and benefits is presented in detail in the Regulatory Impacts Analysis (RIA) accompanying this final rule.
A summary of the key results of this final rule is presented in Table 1. Table 1 presents the PV and EAV, estimated using discount rates of 7 and 3 percent, of the benefits, costs and net benefits, as well as the change in emissions under the final rule. The monetized net benefits are the benefits (emissions reductions) minus the costs (annualized compliance costs). These results present an incomplete overview of the effects of the final FIP, because categories of benefits—including benefits from reducing other types of air pollutants—were not monetized and are therefore not reflected in Table 1.
This final rule is expected to result in net benefits (emissions reductions) for human health and the environment in the Uinta Basin. The estimated benefits include the monetized climate effects of the projected reduction in methane emissions under the final rule resulting from the targeted reduction of VOC emissions. The PV of these climate-related benefits (emissions reductions), discounted at a 3-percent rate, is estimated to be about $1 billion, with an EAV of about $120 million (Table 1).
In addition to directly controlling VOC emissions, which are expected to lower ozone concentrations in the Uinta Basin, this action is expected to lower HAP emissions and the formation of secondary particulate matter with a diameter of 2.5 micrometers or less (PM
The estimated capital and annualized compliance costs include the monetized costs for affected owners or operators to comply with the final rule. The net PV of these compliance costs (accounting for product recovery), discounted at a 7-percent rate, is estimated to be about $560 million, with an EAV of about $81 million (Table 1). Under a 3-percent discount rate, the PV of the compliance costs is about $610 million, with an EAV of about $72 million (Table 1).
The PV of the net benefits of this rule, discounted at a 7-percent rate, is estimated to be about $440 million, with an EAV of about $39 million (Table 1). Under a 3-percent discount rate, the PV of net benefits is about $390 million, with an EAV of about $48 million (Table 1).
Entities potentially affected by this rule include the Ute Indian Tribe,
In 2014, the U.S. Court of Appeals for the D.C. Circuit addressed the EPA's authority to promulgate a FIP establishing certain CAA permitting programs in Indian country.
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that the EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in 40 CFR 49.4169 through 49.4184. If you have any questions regarding the applicability of this action to a particular entity, contact the appropriate person listed in the
In addition to being available in the docket, an electronic copy of this final action will also be posted at:
Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 6, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. Under section 307(b)(2) of the Act, the requirements of this final action with respect to which review could have been obtained under section 307(b)(1) of the Act may not be judicially reviewed later in civil or criminal proceedings brought by us to enforce these requirements.
The Uintah and Ouray Indian Reservation is composed of lands that were part of the original Uintah Valley and Uncompahgre Reservations, which were established by executive order in 1861 and 1882, respectively.
Section 301(d) of the CAA authorizes the EPA to treat Indian tribes in the same manner as states for purposes of implementing the CAA over their entire reservations and over any other areas within their jurisdiction, and directs the EPA to promulgate regulations specifying those provisions of the CAA for which such treatment is appropriate.
The TAR preamble clarified that by including CAA section 110(c)(1) on the list at 40 CFR 49.4, the “EPA is not relieved of its general obligation under the CAA to ensure the protection of air quality throughout the nation, including throughout Indian country.”
The Ute Indian Tribe has not applied for treatment in a similar manner as a state (TAS) for the purpose of administering a TIP under the CAA; nor has it submitted a TIP for review and approval. Thus, with respect to Indian country lands within the U&O Reservation, there is currently no submitted or EPA-approved TIP that would address the air quality purposes described earlier. This FIP provides such a plan and applies to all Indian country lands within the exterior boundaries of the U&O Reservation.
In 2006, acting under the authority provided in CAA section 301(d) and in the TAR, we proposed the FIP regulation: “Review of New Sources and Modifications in Indian Country” (Indian Country NSR rule).
The Federal Indian Country Minor NSR rule applies to existing, new, and modified minor stationary sources and to minor modifications at existing major stationary sources in Indian country where there is no EPA-approved program in place.
Any existing, new, or modified stationary oil and natural gas source that emits or has the potential to emit (PTE) a regulated NSR pollutant in amounts equal to or greater than the minor NSR thresholds in the Federal Indian Country Minor NSR rule, but less than the amount that would qualify the source as a major source or a major modification for purposes of the PSD or nonattainment major NSR programs, must submit a registration form to the EPA containing information on, among other things, source-wide actual emissions of NSR regulated pollutants, information on the methods used to calculate the emissions, and descriptions of the various emitting activities and equipment operated at the source. Existing, new, and modified oil and natural gas sources that commenced construction before October 3, 2016, complied with the Federal Indian Country Minor NSR Permit Program by registering under the Existing Source Registration Program at 40 CFR 49.160. Beginning October 3, 2016, the owner/operator of any new true minor oil and natural gas source must comply with the National O&NG FIP or apply for and obtain a site-specific true minor NSR permit before beginning construction. Likewise, the owner/operator of any existing stationary source (minor or major) must comply with the National O&NG FIP or apply for and obtain a minor NSR permit before beginning construction of a physical or operational
The “minor NSR thresholds” establish cutoff levels for each regulated NSR pollutant. If a source has a PTE in amounts lower than the minor NSR thresholds,
The minor NSR thresholds for VOC emissions for sources in Indian country are 2 tpy in nonattainment areas and 5 tpy in attainment and unclassifiable areas. Portions of the U&O Reservation are currently designated unclassifiable for the 2008 ozone NAAQS and the minor NSR thresholds for VOC are 5 tpy in those Indian country portions of the Reservation. As discussed previously and further in Section D (Air Quality and Attainment Status), other portions of the U&O Reservation are included in the Uinta Basin Ozone Nonattainment Area, and, therefore, the minor NSR thresholds for VOC are 2 tpy in those Indian country portions of the Reservation.
With respect to air quality, ozone levels in the Uinta Basin, in which the U&O Reservation is located, have reached unhealthy levels that warrant action. The 2015 8-hour ozone NAAQS is 70 parts per billion (ppb).
As discussed previously, the EPA designated areas in the Uinta Basin below 6,250 feet, including portions of the Indian country lands within the U&O Reservation, as marginal nonattainment for the 2015 ozone standard. The fourth maximum ambient air concentration measurement for 2020, the attainment year, is 66 ppb, which is lower than the 2015 ozone NAAQS. Accordingly, Utah and the Ute Indian Tribe requested to extend the August 3, 2021, attainment date for the Uinta Basin Ozone Nonattainment Area by 1-year. On April 13, 2022, the EPA proposed to grant a 1-year attainment date extension for the Uintah Basin Ozone Nonattainment area.
Ambient ozone is a secondary pollutant formed when the two primary ozone precursors, VOC and NO
The EPA has determined that this final action will result in large reductions of VOC emissions, and that this result is expected to reduce ambient ozone and reduce the severity of exceedances of the 2008 and 2015 ozone NAAQS.
We had previously informed the public of our intent to undertake action specific to the Indian country lands within the U&O Reservation; as noted earlier, in the preamble to the National O&NG FIP, we stated: “For the Uintah and Ouray Reservation, we have sufficient concerns about the air quality impacts from existing sources that we plan to propose a separate U&O FIP.”
In 2020, the EPA, in cooperation with the UDEQ and the Ute Indian Tribe, developed the UBEI2017-Update, an emission inventory of oil and natural gas activity in the Uinta Basin that was populated with data provided by oil and natural gas operators in the Basin.
The 2017 NEI provides a general picture of the relative contributions of ozone-forming emissions from the oil and natural gas sector as compared to other industry sectors, estimating that emissions from the production segment of the oil and natural gas sector were the largest anthropogenic
The UBEI2017-Update indicates that the majority of existing oil and natural gas sources in the region are on Indian country lands within the U&O Reservation. As explained in more detail below, most of these are minor sources and are uncontrolled. The 2017 NEI indicates that, compared to other industry sector sources, existing oil and natural gas sources are cumulatively the largest anthropogenic contributor of VOC (97 percent) and NO
Specifically, the UBEI2017-Update shows that 76 percent of all existing oil and natural gas facilities (including well sites processing fluids from multiple individual wells, as well as compressor stations and other processing facilities) in the Uinta Basin are located on Indian country lands within the U&O Reservation. According to the inventory, almost 73,000 tons of VOC and over 6,700 tons of NO
Many of the oil and natural gas sources on Indian country lands within the U&O Reservation are uncontrolled. According to the UEBI2017-Update, on the Indian country lands within the U&O Reservation, 85 percent of the total number of existing storage vessels, 98 percent of the total number of existing glycol dehydrators and 99 percent of existing pneumatic pumps are uncontrolled emitters of VOC. By contrast, in areas of the Basin where the EPA has approved the UDEQ to implement the CAA, 68 percent of the total number of existing storage vessels and 52 percent of the total number of existing glycol dehydrators are uncontrolled (uncontrolled pneumatic pump numbers are relatively equivalent to Indian country at 99 percent). The UDEQ has adopted revisions to existing oil and natural gas source requirements and existing minor source permitting requirements, and has adopted new requirements, including a Permit by Rule that replaces the requirement for minor oil and natural gas sources to obtain a site-specific permit.
Based on this collection of emissions information (and other information about meteorological conditions and local geography), the EPA has concluded that winter ozone levels in the Uinta Basin are most significantly influenced by VOC emissions from the presence of numerous minor, unpermitted and largely uncontrolled oil and natural gas production operations on Indian country lands within the U&O Reservation.
Under section 302(y) of the CAA, the term “Federal implementation plan” means “a plan (or portion thereof) promulgated by the Administrator to fill all or a portion of a gap or otherwise correct all or a portion of an inadequacy in a state implementation plan, and which includes enforceable emission limitations or other control measures, means or techniques (including economic incentives, such as marketable permits or auctions of emissions allowances), and provides for attainment of the relevant national ambient air quality standard.” As discussed previously in section III.B., CAA sections 301(a) and 301(d)(4) and 40 CFR 49.11(a) authorize the EPA to promulgate such FIPs as are necessary or appropriate to protect air quality if a Tribe does not submit or receive EPA approval of a TIP.
The Federal Indian Country Minor NSR rule is an example of a FIP, as discussed in section III.C. Another example of the EPA's use of its FIP authority to protect air quality in areas of Indian country with no EPA-approved program, while at the same time seeking to provide a consistent regulatory environment where appropriate, is the “FIP for Oil and Natural Gas Well Production Facilities; Fort Berthold Indian Reservation (FBIR; Mandan, Hidatsa, and Arikara Nation), North Dakota.”
This U&O FIP specific to Indian country lands within the U&O Reservation will reduce VOC emissions related to the formation of ozone. Exceedances of both the 2008 and the 2015 ozone NAAQS have occurred at air quality monitors on and around the Reservation, and portions of the Uinta Basin, including portions of the U&O Reservation, were designated by the EPA in 2018 as nonattainment for the 2015 ozone NAAQS. There are no currently approved TIPs that apply to existing oil and natural gas sources on Indian country lands within the U&O Reservation. Finally, the majority of the sources covered by this U&O FIP have not previously been subject to federally required emissions controls, as discussed further in Section IV.A of the preamble to the proposed FIP.
The oil and natural gas industry in the Uinta Basin includes the extraction and production of oil and natural gas, as well as the processing, transmission, and distribution of natural gas. Specifically, for oil, the industry in the Uinta Basin includes all operations from the well to transfer to an oil transmission pipeline or other means of transportation to a petroleum refinery. The petroleum refinery is not considered part of the oil and natural gas industry. Thus, with respect to
The oil and natural gas industry in the Uinta Basin can generally be separated into four segments: (1) oil and natural gas production; (2) natural gas processing; (3) natural gas transmission and storage; and (4) natural gas distribution. This U&O FIP for oil and natural gas sources on Indian country lands within the U&O Reservation focuses on existing, new, and modified sources in the first and second segments, oil and natural gas production and natural gas processing, because the existing minor sources in those segments cumulatively contribute the largest portion of VOC emissions from the oil and natural gas industry on the Indian country portion of the U&O Reservation. There are more than 6,870 individual oil and natural gas sources (operated by 33 distinct entities) on the Indian country lands within the U&O Reservation, the majority of which are well sites in the oil and natural gas production segment.
The oil and natural gas production segment in the Uinta Basin includes wells and all related processes used in the extraction, production, recovery, lifting, stabilization, and separation or treatment of oil and/or natural gas (including condensate). Production components in the Uinta Basin may include wells and related casing head, tubing head, and “Christmas tree” piping, as well as pumps, compressors, heater treaters, separators, storage vessels, pneumatic devices, pneumatic pumps, and natural gas dehydrators. Production operations in the Uinta Basin also include the well drilling, completion, and workover processes, and include all the portable non-self-propelled apparatuses associated with those operations. Production sites in the Uinta Basin include not only the sites where the wells themselves are located, but also centralized gas and liquid gathering sources where oil, condensate, produced water, and natural gas from several wells may be separated, stored, and treated. Production components in the Uinta Basin also include the smaller diameter, low-to-medium-pressure gathering pipelines and related components that collect and transport the oil, natural gas, and other materials and wastes from the wells or well pads.
The natural gas production segment in the Uinta Basin ends where the natural gas enters a natural gas processing plant. Where there is no processing plant, the natural gas production segment ends at the point where the natural gas enters the transmission segment for long-line transport. The crude oil production segment in the Uinta Basin ends at the storage and load-out terminal, which is the point of custody transfer to an oil pipeline or for transport of the crude oil to a petroleum refinery via trucks or railcars.
Each producing crude oil and natural gas field has its own unique properties. The composition of the crude oil and the natural gas as well as the reservoir characteristics are likely to be different across all reservoirs. The RIA for this rule provides a more detailed overview of the products and components of the oil and natural gas industry that are relevant to the activities in the Uinta Basin.
The emissions control and other requirements of this final FIP that will reduce VOC emissions from existing, new, and modified oil and natural gas sources on Indian country lands within the U&O Reservation are summarized in this section. Significant changes since proposal are discussed in more detail in section V of this preamble. The FIP includes emissions control efficiency requirements and operational and work practice standards, each with associated monitoring, testing, recordkeeping, and reporting requirements, as appropriate. Oil and natural gas sources must comply with these requirements, except as specifically exempted under the FIP for certain equipment or activities otherwise subject to existing federal standards 40 CFR part 60, subparts OOOO or OOOOa, or 40 CFR part 63, subpart HH. Also discussed in this section are the features of the FIP that are necessary to facilitate its implementation.
This final rule applies to owners or operators of oil and natural gas sources that either produce oil and natural gas or process natural gas, that are located on Indian country lands within the U&O Reservation, and that meet the applicability criteria specified for each set of requirements. It includes the following provisions in 40 CFR part 49:
We do not expect a substantial number of the existing oil and natural gas sources subject to this U&O FIP to also be subject to NSPS OOOO or OOOOa, or NESHAP HH, for the specific equipment and activities regulated. However, to minimize regulatory burdens where such a potential overlap does exist, this rule finalizes the proposed provisions that equipment or activities that are affected
In 40 CFR 49.4169 (Introduction) we are finalizing our proposal to specify: (1) the purpose of this U&O FIP; (2) the general applicability of this U&O FIP; and (3) the compliance schedule for this U&O FIP.
We are finalizing text that: (1) establishes provisions for delegation of authority to allow the Ute Indian Tribe to assist the EPA with administration of this U&O FIP in 40 CFR 49.4170; (2) establishes general provisions and definitions applicable to oil and natural gas sources in 40 CFR 49.4171; (3) establishes a requirement for oil and natural gas sources to submit emissions inventories on a triennial basis, beginning with an inventory for calendar year 2023 in 40 CFR 49.4172; and (4) establishes, in 40 CFR 49.4173 through 49.4184, enforceable requirements to control and reduce VOC emissions from oil and natural gas well production and storage operations, natural gas processing, and gathering and boosting operations at oil and natural gas sources on Indian country lands within the U&O Reservation.
This final rule provides that compliance with the rule for oil and natural gas sources that commence construction on or after the effective date of the final rule is required upon startup. Compliance for sources existing as of the effective date of the final rule is required no later than 12 months after the effective date of the final rule. We concluded that it is important to allow owners/operators of existing sources a reasonable period of time to conduct any necessary retrofit-related activities, such as (1) acquiring control devices, (2) conducting manufacturer-recommended testing to be compliant with the requirements, and (3) securing the necessary trained personnel to install compliant devices and associated piping and instrumentation. We expect that there will be about 2,165 existing oil and natural gas sources that may require equipment retrofit and installation of VOC emission control equipment (combustion controls) under the final rule. Additionally, we estimate that more than 700 high-bleed pneumatic controllers will need to be retrofitted to low-or no-bleed. We have determined that providing 12 months from the effective date of the final rule to install retrofits at existing sources is a reasonable amount of time for efficient, cost-effective project planning that accounts for a level, sustained equipment and labor resource demand that can be supported by the vendor community, while ensuring that meaningful emissions reductions will be achieved that provide near-term benefits to improve air quality and make progress toward future attainment.
We are also finalizing a provision to allow an owner or operator on a case-specific basis to submit a written request to the EPA for an extension of the compliance deadline for existing sources, which must include appropriate justification of the reason for the request. Any approval or denial of an extension request, including the length of any approved extension, will be based on the merits of each case. Factors that the EPA will consider in deciding whether to grant an extension request under the provision include the economic and technical feasibility of meeting this U&O FIP's control requirements in the prescribed timeframe. The final FIP specifies the criteria that the EPA will apply in responding to requests for extension of the compliance period, including that the request must be submitted before the compliance deadline, must identify the specific provisions for which an extension is being requested and include an alternative compliance deadline, and must provide a rationale for the request with supporting information explaining how the operator will effectively meet all applicable requirements after the requested alternative compliance deadline.
We are establishing in 40 CFR 49.4170 (Delegation of authority of administration to the Tribe) the steps by which the Ute Indian Tribe may request delegation to assist us with the administration of this rule, and the process by which the Regional Administrator of EPA Region 8 may delegate to the Ute Indian Tribe the authority to assist with such administration. As described in the regulatory provisions, any such delegation will be accomplished through a delegation of authority agreement between the Regional Administrator and the Tribe. This section provides for administrative delegation of this federal rule and does not affect the TAS eligibility criteria under CAA section 301(d) and 40 CFR 49.6 should the Ute Indian Tribe decide to seek such treatment for the purpose of administering its own EPA-approved TIP under tribal law. Administrative delegation is a separate process from TAS under the TAR. Under the TAR, Indian tribes seek the EPA's approval of their eligibility to implement CAA programs under their own laws. The Ute Indian Tribe will not need to seek TAS under the TAR for purposes of requesting to assist us with administration of this rule through a delegation of authority agreement. If delegation does occur, the rule would continue to operate under federal authority on Indian country lands within the U&O Reservation, and the Ute Indian Tribe would assist us with administration of the rule to the extent specified in the agreement.
We are finalizing in 40 CFR 49.4171 (General provisions): (1) a requirement to design, operate, and maintain all equipment used for hydrocarbon liquid and gas collection, storage, processing, and handling operations covered under this rule, in a manner consistent with good air pollution control practices and that minimizes leakage of VOC emissions to the atmosphere. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the EPA, including monitoring results, review of operating and maintenance procedures, and inspection of the source; and (2) definitions.
We are finalizing in 40 CFR 49.4172 a requirement for owners/operators of oil and natural gas sources with the
The discussion in this section details the final VOC emissions control requirements of this FIP and how they compare to existing state and federal requirements for the equipment and activities listed in Table 3. The most notable difference between the final VOC emissions control requirements of this FIP and the Utah Oil and Gas Rules
For existing, new, and modified sources, we are finalizing in 40 CFR 49.4173 (Storage vessel VOC emission control requirements), 40 CFR 49.4174 (Dehydrators VOC emission control requirements), and 40 CFR 49.4175 (Pneumatic pumps VOC emission control requirements) the requirement that owners and operators of affected storage vessels, glycol dehydrators, and natural gas-driven pneumatic pumps either: (1) reduce VOC emissions from flashing, working, standing, and breathing losses from the collection of all crude oil, condensate, intermediate hydrocarbon and produced water storage vessels, glycol dehydrator process vents (glycol dehydrator regenerator or still vent and the vent from the dehydrator flash tank, if present), and pneumatic pumps, by at least 95.0 percent on a continuous basis; or (2) maintain the source-wide uncontrolled actual VOC emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps at a rate of less than 4 tpy. We are finalizing the requirement that applicability for the VOC emissions control requirements be determined specifically according to the following criteria. For oil and natural gas sources that began operation before the effective date of the final rule, we are requiring that applicability be determined using potential for VOC emissions. Potential for VOC emissions must be calculated using a generally accepted model or calculation methodology based on the maximum average daily throughput, as determined for existing sources using the highest 30-day period of production in the 12 consecutive months before the compliance deadline of the rule for each affected source. The determination may take into account requirements under legally and practicably enforceable limits in an applicable operating permit or other applicable federal requirement, such as those in NSPS OOOO or OOOOa, or NESHAP HH. For oil and natural gas sources that begin operation or modification after the effective date of the final rule, we are requiring that applicability for glycol dehydrators and pneumatic pumps be determined using potential to emit VOC, and that emissions from the collection of all storage vessels be controlled upon startup for a minimum of 12 consecutive months. This requirement for new and modified storage vessels is being finalized because of the uncertainty of well production levels before operation begins. After a minimum of 12 consecutive months of operation, controls may be removed if source-wide uncontrolled actual VOC emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps are demonstrated to be less than 4 tpy.
We are requiring that owners or operators demonstrate that the source-wide uncontrolled actual VOC emissions from the collection of all
The final rule requires that the owner or operator re-evaluate the source-wide uncontrolled actual VOC emissions on a monthly basis. If the results of the monthly determination show that the uncontrolled actual VOC emission rate is greater than or equal to 4 tpy, the owner or operator will have 30 days to switch to the first option specified and control VOC emissions by at least 95 percent continuously. We are finalizing an exemption to the VOC emissions control requirements for each emergency storage vessel that meets the following requirements: (1) the storage vessel is not used as an active storage vessel; (2) the owner or operator empties the storage vessel no later than 15 days after receiving fluids; (3) the storage vessel is equipped with a liquid level gauge or equivalent device; and (4) records of the use of each vessel are kept indicating the date the vessel received fluids or was discovered to have received fluids, the date the vessel was emptied and the volume of fluids emptied in barrels.
The final VOC emissions control applicability provisions and other requirements are the same as or comparable on balance with the requirements in the Utah Permit Requirements and/or Utah Oil and Gas Rules. The methods for determining applicability of the control requirements are the same as those in site-specific minor source BACT analyses in the Utah Permit Requirements. In site-specific approval orders that have been issued, the UDEQ requires VOC emissions controls for source-wide emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps at oil and natural gas sources
We are finalizing the option that the owner or operator capture and route all subject emissions through a closed-vent system to an enclosed combustor or flare that is designed and operated to reduce the mass content of VOC in the emissions vented to it by at least 95.0 percent. Requirements for closed-vent systems are established under conditions specified in 40 CFR 49.4176 (VOC emission control requirements for covers and closed-vent systems), and requirements for operation and monitoring of control devices are established under conditions specified in 40 CFR 49.4177 (VOC Emission Control Devices) and 40 CFR 49.4182 (Monitoring Requirements), all of which are discussed in detail below in the summaries of Covers, Closed-Vent Systems, and VOC Emission Control Devices and Monitoring Requirements.
We are finalizing the alternative option that the owner or operator design operations to recover 100 percent of the emissions and recycle them for use in a process unit or incorporate them into a product. These control options are the same as the Utah Permit Requirements and the Utah Oil and Gas Rules.
As described earlier, regulating pneumatic pumps in this U&O FIP is not comparable to the UDEQ's Utah Oil and Gas Rules, because those rules do not include requirements for pneumatic pumps.
We do not expect that a substantial number of existing oil and natural gas sources that would meet the applicability criteria of this U&O FIP will also be subject to NSPS OOOO or OOOOa, or NESHAP HH. However, to address any potential regulatory overlap, we are providing that any affected storage vessels, glycol dehydrators, or pneumatic pumps that
For affected existing, new, and modified sources that are required to control emissions from the collection of all storage vessels, glycol dehydrators and pneumatic pumps per 40 CFR 49.4173 through 49.4175, we are finalizing in 40 CFR 49.4176 (VOC emission control requirements for covers and closed-vent systems) to require, as applicable, the use of covers on all storage vessels, and the use of closed-vent systems with equipment that captures and routes VOC emissions to the respective vapor recovery or VOC emission control devices. Because closed-vent systems are common to control requirements for storage vessels, glycol dehydrators and pneumatic pumps, we are finalizing these requirements in a separate section to avoid redundancy. Section 49.4176 also specifies construction and operational requirements for the covers and closed-vent systems. The construction and operational requirements for the covers and closed-vent systems are intended to provide legal and practical enforceability to ensure that all captured VOC emissions are routed to the respective vapor recovery or VOC emission control devices. In addition, for affected existing, new, and modified sources that are required to control emissions from the collection of all storage vessels, glycol dehydrators and pneumatic pumps, in 40 CFR 49.4177 (VOC emission control devices) we are finalizing specific legally and practicably enforceable construction and operational requirements for enclosed combustors and flares.
We are finalizing in 40 CFR 49.4176 (VOC emission control requirements for covers and closed-vent systems) the requirement that each owner or operator equip the openings on each affected storage vessel with a cover that ensures that flashing, working, standing and breathing losses are efficiently routed through a closed-vent system to a vapor recovery system, an enclosed combustor, or a flare. We are finalizing the requirement that each cover and all openings on the cover (
We are requiring that all vent lines, connections, fittings, valves, relief valves, and any other appurtenance employed to contain and collect emissions and transport them to the vapor recovery or VOC control equipment be maintained and operated properly at all times, and that they be designed to operate with no detectable emissions. If a closed-vent system contains one or more bypass devices that could be used to divert all or a portion of the emissions from entering the vapor recovery or VOC control devices, we are requiring that the owner or operator meet one of the following options for each bypass device: (1) at the inlet to the bypass device, properly install, calibrate, maintain, and operate a flow indicator capable of taking periodic readings and sounding an alarm when the bypass device is open such that the emissions are being, or could be, diverted away from the control device and into the atmosphere; or (2) secure the bypass device valve in the non-diverting position using a car-seal or a lock-and-key type configuration.
The cover and closed-vent system requirements are comparable on balance with UDEQ requirements for storage vessels in both the issued site-specific approval orders and the Utah Oil and Gas Rules. The site-specific approval orders require storage vessel thief hatches to be closed and latched except during storage vessel unloading or other maintenance activities. They also require that thief hatches be inspected once every three months to ensure that thief hatches are closed and latched, and that any associated gaskets are in good working condition. Similarly, the Utah Oil and Gas Rules for storage vessels require thief hatches to be kept closed and latched except during unloading or maintenance. The U&O FIP requirements for covers and closed-vent systems were developed by consulting the cover and closed-vent system requirements of EPA standards, such as OOOO and OOOOa and NESHAP HH. For ease of implementation, these requirements provide more detail than the UDEQ requirements in both the issued site-specific approval orders and the Utah Oil and Gas Rules but are comparable on balance with the UDEQ requirements for storage vessels and closed-vent systems.
For existing, new, and modified sources that are required to control VOC emissions from the collection of all storage vessels, glycol dehydrators and pneumatic pumps, we are finalizing requirements in 40 CFR 49.4177 (VOC emission control devices) that each owner or operator follow the manufacturer's written operating instructions, procedures and maintenance schedules to ensure the use of good air pollution control practices for minimizing emissions from each enclosed combustor and flare. Each flare must be designed and operated according to the requirements of 40 CFR 60.18(b). Each enclosed combustor must be designed and operated to reduce the mass content of the VOC in the natural gas routed to it by at least 95.0 percent continuously. The control efficiency required for each VOC emissions control device is the same as the Utah Oil and Gas Rules.
We recognize that the site-specific approval orders issued to existing sources under the Utah Permit Requirements require control devices to meet 98 percent VOC control efficiency. But we have concluded that the differences between this U&O FIP, the Utah Oil and Gas Rules, and the Utah Permit Requirements are minimal, and all were designed to achieve a consistent result. The UDEQ requires permittees of minor oil and natural gas sources to show compliance with 98.0 percent VOC control device control efficiency by routing all exhaust gas/vapors (from the storage vessels, glycol dehydrators or pneumatic pumps) to the operating combustor, operating the device according to the manufacturer's written instructions when gases/vapors are routed to it, operating the device with no visible emissions, and by performing tests to visually determine smoke emissions according to EPA Method 22 at 40 CFR part 60, appendix A. The Utah Oil and Gas Rules require at least 95.0 percent VOC control efficiency and do not specify methods to ensure no visible emissions but refer to NSPS OOOOa for demonstrating compliance with the control efficiency requirements. We note that combustion devices can be designed to meet 98.0 percent control efficiencies, and can control emissions by 98.0 percent or
During development of NSPS OOOO and OOOOa, 95.0 percent control efficiency was determined to be the best system of emission reduction (BSER) able to be continuously achieved by affected facilities (
We are requiring that all flares installed per this rule be designed and operated in accordance with applicable requirements in 40 CFR 60.18(b).
We determined that certain work practice and operational requirements are also necessary for the practical enforceability of the VOC emission reduction requirements for flares or enclosed combustors. We are requiring that flares and enclosed combustors be operated within specific parameters to ensure the effective control of VOC emissions.
To ensure legal and practical enforceability, other work practice and operational requirements in this U&O FIP are different or more prescriptive than the Utah Oil and Gas Rules in several areas. For example, the Utah Oil and Gas Rules require all VOC emissions control devices simply to be equipped and operated with an operational automatic ignition device. This U&O FIP, on the other hand, requires each enclosed combustor or flare to be equipped and operated with either a continuous burning pilot flame or an electronically controlled automatic ignition device. Further, under this FIP all enclosed combustors and flares must be equipped with a monitoring system for continuous measurement and recording of the parameters that indicate proper operation of each continuous burning pilot flame or electronically controlled automatic ignition device, such as a chart recorder, data logger or similar device, or connected to a SCADA system to monitor and document proper operation of the device. The work practice and operational requirements for VOC control devices in this U&O FIP were developed by considering the UDEQ requirements for VOC control devices, in combination with consulting the work practice and operational requirements for control devices in EPA standards, including NSPS OOOO and OOOOa and NESHAP HH. Regarding
We recognize that the UDEQ requires automatic ignition devices on all combustion devices. In the interest of establishing regulations on Indian country lands within the U&O Reservation that are comparable on balance with the UDEQ requirements, we are finalizing a hybrid approach that allows owners and operators required to control VOC emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps the option to use devices that comply with EPA standards (continuous burning pilot), or to use electronically controlled automatic ignition devices if the control device is also equipped with a system that can indicate to the owner and operator that the automatic ignition device is not operating properly while gas is being routed to the control device. We expect that these requirements for control devices will achieve a result comparable to the requirements for VOC control devices in the Utah Oil and Gas Rules and will ensure that the control device is operated properly to achieve the required control efficiency while providing consistency with EPA policy regarding flares and combustors.
Section 49.4177 allows owners or operators of oil and natural gas sources, on receiving written approval, to use control devices other than an enclosed combustor or flare, provided they continuously achieve at least 95.0 percent VOC control efficiency. We expect that this provision will allow owners and operators to take advantage of technological advances in VOC emission control in the oil and natural gas industry, and that it will provide us with valuable information on new control technologies.
For existing, new, and modified sources, we are finalizing LDAR requirements in 40 CFR 49.4178 (Fugitive emissions VOC emission control requirements) that each owner or operator of an oil and natural gas source conduct periodic inspections of the source to detect leaks from fugitive emissions components and repair them if either of the following is true: (1) the collection of fugitive emissions components is located at an oil and natural gas source that is required to control VOC emissions according to 40 CFR 49.4173 through 49.4177 of this FIP (
We are finalizing a definition of “fugitive emissions component” in 40 CFR 49.4171, consistent with the approach in NSPS OOOOa, that includes valves, connectors, open-ended lines, pressure relief devices, flanges, covers and closed-vent systems not subject to 40 CFR 49.4173 through 49.4175, thief hatches or other openings on controlled storage vessels not subject to 40 CFR 49.4173, compressors, instruments and meters.
(1) Conduct an initial monitoring of fugitive emissions components at each affected source within 12 months of the effective date of the rule.
(2) Conduct subsequent monitoring once every 6 months after the initial monitoring for fugitive emissions components at oil and natural gas sources.
(3) Describe the fugitive emissions detection monitoring method to be used (limited to onsite optical gas imaging instruments, with a leak defined as any visible emissions using an optical gas imaging instrument, EPA Reference Method 21, with an instrument reading of 500 parts per million volume (ppmv) VOC defined as a leak, or another method approved by the EPA other than optical gas imaging or EPA Reference Method 21).
(4) Identification of manufacturer and model number of any leak detection equipment to be used.
(5) Procedures and timeframes for identifying and repairing components from which leaks are detected, including a requirement to repair any identified leaks from components that are safe to repair and that do not require source shutdown within 30 days of discovering a leak, and identification of timeframes (which must be no later than the next required monitoring event after discovering the leak) to repair leaks that are designated as difficult-to-monitor or unsafe-to-monitor, or which require source shutdown. If the repair or replacement of a fugitive emissions component designated difficult-to-monitor or unsafe-to-monitor is technically infeasible, would require a vent blowdown, a compressor station shutdown, a well shutdown or shut-in, or would be unsafe to repair
(6) Procedures for verifying effective repair of leaking components, no later than 30 days after repairing a leak.
(7) Specific training and experience needed to perform inspections.
(8) Description of procedures for calibration and maintenance of any fugitive emissions monitoring device to be used.
(9) Standard monitoring protocols for each type of typical affected source (
We are finalizing in 40 CFR 49.4179 an exemption for source owners/operators from having to monitor and repair a fugitive emissions component under certain circumstances: (1) the contacting process stream only contains glycol, amine, methanol or produced water; or (2) the component to be inspected is buried, insulated in a manner that prevents access to the components by a monitor probe or optical gas imaging device, or obstructed in a manner that prevents access by a monitor probe or optical gas imaging device.
The fugitive emissions LDAR requirements in this U&O FIP are designed to be consistent with those in NSPS OOOOa. In developing the final FIP LDAR requirements, we also reviewed the UDEQ requirements. For existing, new, and modified sources subject to the Utah Oil and Gas Rules, the LDAR requirements were designed to be procedurally consistent with NSPS OOOOa, though the applicability threshold is different. The UDEQ's site-specific approval orders, a general approval order (GAO) for crude oil and natural gas well sites and tank batteries,
The final FIP applicability threshold is consistent in part with the UDEQ's LDAR applicability threshold, though the final FIP also requires any additional sources where daily production exceeds 15 boe per day to conduct an LDAR inspection program, which is consistent in part with NSPS OOOOa. The LDAR inspection frequency requirements of this U&O FIP are the same as the Utah Oil and Gas Rules and NSPS OOOOa. For oil and natural gas sources that may have obtained coverage under the UDEQ's approval orders or the GAO, we concluded that the UDEQ's LDAR inspection frequency requirement is different than the LDAR inspection frequency requirements for oil and natural gas sources under this U&O FIP, which may require monitoring frequencies for only certain sources that are equivalent to this U&O FIP.
We are finalizing a provision allowing for the use of alternative methods of leak detection, other than EPA Reference Method 21 or optical gas imaging instrument, to demonstrate compliance with the fugitive emissions monitoring requirements, provided the method is approved by the EPA. We are finalizing language specifying that to be approved by the EPA, a demonstration that the alternative method achieves emissions reductions that equal or exceed those that would result from the application of either Method 21 or optical gas imaging instruments must be made and any proposed approval by the EPA will be subject to public notice and comment.
Sections 49.4179 (VOC emission control requirements for tank truck loading), 49.4180 (VOC emission control requirements for pneumatic controllers) and 49.4181 (Other combustion devices) contain requirements for all existing, new, and modified existing oil and natural gas sources, regardless of source-wide or emission-unit-specific emissions. Like the requirements in Utah's Oil and Gas Rules for oil and natural gas sources in areas of the Basin where the EPA has approved the UDEQ to implement the CAA, the U&O FIP's requirements are as follows: (1) tank trucks used for transporting crude oil, condensate, intermediate hydrocarbon liquids or produced water must be loaded using bottom filling or submerged fill pipes; (2) all existing pneumatic controllers must meet the pneumatic controller standards in NSPS OOOO at 40 CFR 60.5390(b)(2) and (c)(2) and NSPS OOOOa at 40 CFR 60.5390a(b)(2) and (c)(2); and (3) all existing enclosed combustors, flares present and operating at sources on a voluntary basis—that is, those that are not required to control storage vessel, glycol dehydrator, and pneumatic pump emissions (per 40 CFR 49.4173 through 49.4175)—must be equipped with an electronically controlled automatic ignition device.
Our requirements for truck loading/unloading diverge in one respect from what the UDEQ is requiring in the Utah Oil and Gas Rule. The UDEQ requires that VOC emissions from tank truck loading and unloading at sources required to control storage vessel emissions be captured using a vapor capture line and routed to the onsite combustor or a separate combustor for VOC control. We are not finalizing an equivalent requirement at this time, as we did not receive sufficient cost and emissions reduction information during the public comment period for this rulemaking to sufficiently evaluate the cost effectiveness of such a requirement for the limited estimated emissions for truck loading/unloading on Indian country lands within the U&O Reservation, based on the UBEI2017-
Concerning pneumatic controllers, the U&O FIP adopts by reference the definitions of
Lastly, for existing enclosed combustors, flares present and operating at sources that would not be required to comply with the substantive VOC emissions control requirements of sections 40 CFR 49.4173 through 49.4177, we are finalizing a requirement that those voluntarily operated control devices be equipped with an electronically controlled automatic ignition device. This approach is the same as the requirements of the Utah Oil and Gas Rules, which require automatic igniters on all existing combustion devices. In contrast to the 40 CFR 49.4177 (VOC Emission Control Devices) requirements for devices used to comply with this FIP's substantive VOC emissions control requirements, we determined that it would be unreasonable to require voluntarily operated devices to have a system to monitor proper operation of devices used to ensure the presence of a flame at all times a gas stream is routed to the device, and that such a requirement would result in requirements for such sources on Indian country lands within the U&O Reservation that are not comparable to requirements for such sources in areas where the EPA has approved the UDEQ to implement the CAA.
For existing, new, and modified sources, in 40 CFR 49.4182 (Monitoring and testing requirements) we are requiring each owner or operator to conduct source monitoring necessary for the practical enforceability of the U&O FIP's VOC emission reduction requirements, including: (1) monthly inspections of each cover and closed-vent system, including storage vessel openings, thief hatches, pressure relief valves, and bypass devices, to ensure proper condition and functioning and for defects that can result in air emissions consistent with the procedures in 40 CFR 60.5416a(c) [NSPS OOOOa], correcting or repairing any defects identified within 30 days of identification; and (2) monthly inspections of each VOC emissions control device to ensure proper functioning and demonstrate compliance with the VOC emissions control device requirements by (a) checking the control device and parameter monitoring system for proper operation, including system integrity and leak-free operation, at least once per calendar month; (b) responding to any indication of pilot flame failure and ensuring the pilot flame is relit as soon as practicably and safely possible after discovery; and (c) monitoring visible emissions consistent with the requirements in 40 CFR 60.5412(d), using EPA Method 22 visual emissions testing to demonstrate there are no visible smoke emissions.
These monitoring requirements are comparable on balance to those in the Utah Permit Requirements and Utah Oil and Gas Rules, with some exceptions made to ensure legally and practicably enforceable control of VOC emissions. For example, the Utah Permit Requirements and Utah Oil and Gas Rules require installation and operation of an automatic ignition device and operations with no visible emissions for all VOC control devices, but there are no corresponding monitoring requirements to demonstrate compliance with those requirements. We expect that this FIP's monitoring requirements for ensuring there is a constant ignition source when gas is flowing to the control device and for visible emissions testing will provide legal and practical enforceability.
For existing, new, and modified sources, in 40 CFR 49.4183 (Recordkeeping Requirements) we are requiring that each owner or operator of an affected oil and natural gas source keep specific records to be made available upon request, in lieu of voluminous reporting requirements. The records that must be kept include required inspections, measurements, monitoring results, emissions calculations, and deviations or exceedances of rule requirements and corrective actions taken, as well as any manufacturer specifications and guarantees or engineering analyses. These recordkeeping requirements provide legal and practical enforceability for the control and emission reduction requirements of this rule.
For existing, new, and modified sources, we are finalizing in 40 CFR 49.4184 (Notification and reporting requirements) to require that each owner or operator of an affected oil and natural gas source prepare and submit an annual compliance report, with the initial report due April 1st of the calendar year following the effective date of the final rule and must cover all affected operations for the previous calendar year on and after the effective date of the final rule. Subsequent annual reports are due on the same date each year as the date the initial annual report was submitted and must cover all affected operations for the previous calendar year. The report must include a summary of deviations or exceedances of any requirements of the final FIP and the corrective measures taken for a specific subset of targeted required records for each enclosed combustor or flare, each cover and closed-vent system, fugitive emissions monitoring inspection, and each high-bleed controller, as identified in the rule. Annual reports may coincide with Title V, NSPS OOOO or OOOOa or NESHAP HH reports as long as all the required elements of the annual report are included. Additionally, a report of results must be submitted for any performance test we require. These reporting requirements provide legal and practical enforceability for the control and emission reduction requirements of this rule.
This U&O FIP, which is intended to address winter air quality impacts from ozone pollution, contains a common set of VOC emissions control requirements for certain existing, new, and modified oil and natural gas sources on the Indian country lands within the U&O Reservation. We consulted existing federal CAA oil and natural gas source category standards in developing the VOC emissions control requirements of this U&O FIP. To make VOC emissions control requirements across the Basin consistent, this U&O FIP goes beyond the federal standards in some cases, regulating equipment and activities that are not covered by those standards but that are regulated by the UDEQ. Such equipment and activities include small, remote glycol dehydrators; low throughput storage vessels; tank truck loading and unloading; and certain voluntarily operated control devices. Applicability of the requirements, including for equipment and activities that are regulated by the federal standards, is also consistent with the applicability for equivalent equipment and activities regulated by the UDEQ.
As previously mentioned, the streamlined construction authorization mechanism in the National O&NG FIP applies on the Indian country portions of the U&O Reservation that are part of the Uinta Basin Ozone Nonattainment Area, as a result of our recent separate action amending the National O&NG FIP. Such true minor sources are required to register and comply with the eight federal standards in the National O&NG FIP, as applicable, to meet the preconstruction permitting requirements of the Federal Indian Country Minor NSR Program. Compliance with the eight federal standards in the National O&NG FIP, as applicable, does not relieve the owners/operators from the other applicable VOC control requirements of this U&O FIP, except that this U&O FIP exempts certain equipment and activities from it that are in compliance with the applicable requirements of the National O&NG FIP.
We have made some changes to the requirements in the U&O FIP after considering public comments and evaluating more recent emissions inventories and air quality information. More details on our evaluation of available information and reasons for these decisions are described in our summary of responses to comments in Section VI of this preamble, and in the RIA and Response to Public Comments documents for this final rule.
In the proposed U&O FIP, we stated that we might issue a final action based on the proposal as soon as the date of publication of a final U&O FIP. We believed that there would be “good cause,” within the meaning of 5 U.S.C. 553(d)(3), to make the final rule effective as soon as published, if that proved necessary to ensure that this rule began to provide emission reductions before the next winter ozone season. As discussed above in Section II.D., winter ozone in the Uinta Basin is a serious public health problem, which this final rule is intended to help address. In addition, the reductions provided by this rule are an integral part of the Agency's strategy to address the air quality problem on the Indian country lands within the U&O Reservation while maintaining a permitting mechanism that allows appropriate continued oil and natural gas production. The primary other component of that strategy is a separate action to amend the National O&NG FIP to extend its geographic coverage to the Indian country portions of the U&O Reservation that are part of the Uinta Basin Ozone Nonattainment Area. Over the long term, we are relying on the VOC emissions reductions achieved through this action to ensure that the previous extension of the scope of the National O&NG FIP does not jeopardize air quality.
After careful consideration of the comments received, and of the requirements under the Congressional Review Act (CRA) specifying that a major rule may become effective no earlier than 60 days after it is published in the
We proposed to require compliance by oil and natural gas sources existing as of the effective date of the final rule no later than 18 months after the effective date of the final rule. We have revised that compliance period to a 12-month compliance deadline. The proposed 18-month compliance period was informed by what we had learned about the time needed for sources in areas of the Basin where the EPA has approved the UDEQ to implement the CAA to comply with Utah's requirements for oil and natural gas sources. We had been informed by UDEQ compliance staff that the majority of existing oil and natural gas sources in areas of the Basin where the EPA has approved the UDEQ to implement the CAA that had been required to install VOC emission control retrofits in had completed the required retrofits within 9 months of the effective dates of their minor source approval orders, ahead of the 18-month deadline in UDEQ approval orders for operators to notify the UDEQ of the status of retrofit construction.
Although the number of estimated affected sources is still higher than the number in areas where the EPA has approved the UDEQ to implement the CAA, after considering public comments received on the proposed 18-month compliance deadline and the demonstrated need for more near-term air quality benefits to improve air quality in and around the U&O Reservation, we have revised the proposed 18-month compliance period to a 12-month compliance period from the effective date of the rule. In the EPA's judgment, this shorter compliance schedule (especially when combined with the 60-day effective date) will sufficiently accommodate the potentially limited availability of equipment and personnel, and thus still reasonably allow industry to comply with the new requirements in a timely manner, while also ensuring that meaningful reductions will be achieved that will help make progress toward future attainment. Further, potentially affected owners and operators have been on notice of the possibility that these rules might come into effect since the proposed FIP was published in January 2020.
We also enhanced the final FIP to specify the process the EPA would take to decide requests for extension of the compliance period, in particular adding the requirement that the request be submitted before the compliance deadline, identify the specific provisions for which an extension is being requested and include an alternative compliance deadline, and provide a rationale for the request with supporting information explaining how the operator will effectively meet all applicable requirements after the requested alternative compliance deadline.
In the proposed FIP we contemplated establishing the due date for the submittal of annual emissions covering the first triennial inventory year 2020 as October 1, 2021, to allow operators time to set up an appropriate emissions tracking and reporting system. However, given the time that has elapsed since the proposal, we are revising the proposal to require the first triennial emissions inventory to cover calendar year 2023, with the first inventory due on April 15, 2024, and thereafter, every three years, the inventory will be due on April 15th of the year following the inventory year. This is in line with the UDEQ's triennial emissions inventory collection, and the schedule for the NEI. This revised schedule will also allow additional time for operators to set up an appropriate emissions tracking and reporting system, according to the instructions we will make available on our website for the rule once it is finalized.
In the proposed FIP we contemplated moving the authority for streamlined construction authorization mechanism of true minor oil and natural gas sources on the Indian country portions of the U&O Reservation that are part of the Uinta Basin Ozone Nonattainment Area in the National O&NG FIP (through 40 CFR part 49, subpart K) to this FIP, so as to consolidate air quality requirements for oil and natural gas sources in the Indian country portions of the U&O Reservation that are part of the Uinta Basin Ozone Nonattainment Area within one part of the Code of Federal Regulations, which we believed could provide a more efficient and user-friendly approach. However, we have decided not to finalize that approach in this FIP because, after further consideration, including consideration of public comments received, we believe that modifying the National O&NG FIP is unnecessary.
In the proposed FIP, we defined some terms, such as storage tank, pneumatic pump, pneumatic controller, and fugitive emissions component, in a way that were different from the definitions of equivalent equipment and activities in NSPS OOOO and OOOOa. The proposed FIP was designed in part for consistency with NSPS OOOO and OOOOa and the Oil and Gas CTG, and for consistency with the Utah Oil and Gas Rules (which were also designed for consistency with NSPS OOOO and OOOOa). After considering public comments received, and for ease of implementation and compliance, we have revised the proposed definitions, and are finalizing definitions that are consistent with those in NSPS OOOO and OOOOa.
Another difference with NSPS OOOO and OOOOa and the Oil and Gas CTG that was identified in comments on the proposed FIP is in the method used to calculate VOC emissions from the collection of all storage vessels to determine applicability of the control requirements for storage vessels, glycol dehydrators and pneumatic pumps in 40 CFR 49.4173 through 49.4177. We proposed that VOC emissions from the collection of all storage vessels should be calculated based on uncontrolled actual emissions. To provide consistency with NSPS OOOO and OOOOa and the Oil and Gas CTG, we are finalizing requirements that VOC emissions from the collection of all storage vessels be calculated based on potential emissions, which may account for enforceable control requirements already applicable to certain storage vessels. The Utah Oil and Gas Rules require all storage vessels located at a well site that are in operation as of January 1, 2018, with a site-wide throughput of 8,000 bbl or greater of crude oil or 2,000 bbl or greater of condensate per year on a rolling 12-month basis, to control emissions unless an exemption applies that total VOC emissions from the collection of all storage vessels are demonstrated to be less than 4 tpy of uncontrolled actual emissions (defined as actual emissions or the potential to emit without considering controls) on a rolling 12-month basis. Emissions to meet the exemption must be calculated using direct site-specific sampling data and any software program or calculation methodology in use by industry that is based on AP-42 Chapter 7. A separate provision allows controls to be removed after a minimum of one year of operation if source-wide throughput is less than 8,000 bbl crude oil or 2,000 bbl condensate on a rolling 12-month basis or uncontrolled actual VOC emissions are demonstrated to be less than 4 tons per year. For sources that operate only storage vessels and not glycol dehydrators or pneumatic pumps, the proposed 8,000 bbl of crude oil/2,000 bbl of condensate throughput applicability threshold for control of storage vessel emissions was the same as the control applicability threshold for storage vessels in the UDEQ's recently adopted Utah Oil and Gas Rules. However, based on public comments received on the proposed rule, we decided not to finalize the production-based threshold for oil and natural gas sources with only storage vessels and no glycol dehydrators or pneumatic pumps. Several commenters expressed the view that, while they appreciated the effort to establish consistent requirements across all areas of the Basin, determining applicability for VOC combustion control requirements would be simpler and more straightforward if applicability was based solely on the annual facility-wide VOC emissions threshold for storage vessels, glycol dehydrators and pneumatic pumps of 4 tpy.
We noted in the preamble to the proposed U&O FIP that in January 2019, the Utah Air Quality Board approved an additional rule in the Utah Administrative Code Chapter R307-500 Series (Oil and Gas) at R307-511 to manage associated gas from a completed oil well by either routing it to a process unit for combustion, routing it to a sales pipeline, or routing it to a VOC control device, except for emergency release situations. This rule was approved after we had drafted and evaluated the emissions reductions and costs of the provisions in the proposed U&O FIP. We noted our intent to evaluate and consider incorporating equivalent associated gas requirements in a final U&O FIP. After careful consideration of the comments received and evaluation of the data used to estimate associated gas emissions in the UBEI2017-Update used to analyze the costs and benefits of this final FIP, we have decided not to finalize requirements to control associated gas emissions in the U&O FIP, because we do not have adequate information specific to the Uinta Basin operations to accurately assess and develop cost-effective requirements.
In the proposed U&O FIP, we based the applicability of the requirement to implement a semiannual fugitive emissions monitoring program on whether the oil and natural gas source was required to control facility-wide emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps. After considering public comments on the proposed FIP, we have revised the proposed fugitive emissions monitoring applicability, and in the final rule are requiring semiannual fugitive emissions monitoring for each owner or operator of an oil and natural gas source where either of the following is true: (1) As proposed, the collection of fugitive emissions components is located at an oil and natural gas source that is required to control VOC emissions according to 40 CFR 49.4173 through 49.4177 of this FIP (
The Uinta Basin generally encompasses an area of over 6,800 square miles with hundreds of miles of dirt roads connecting over 10,000 oil and natural gas wells. According to the Updated 2017 Uinta Basin Emissions Inventory (UBEI2017-Update),
“Storage Tank Emissions Pilot Project (STEPP): Fugitive Organic Compound Emissions from Liquid Storage Tanks in the Uinta Basin,” Final Report to The Utah State Legislature (USU, TriCounty Health Dept, UDEQ, July 17, 2017) available in the docket for this rulemaking (Docket ID No. EPA-R08-OAR-2015-0709).
“Hydrocarbon Emission Detection Survey of Uinta Basin Oil and Gas Wells”. November 2018. Bingham Research Center, Utah State University, available in the docket for this rulemaking (Docket ID No. EPA-R08-OAR-2015-0709).
We determined that to maximize VOC emissions reductions and the resulting expected improvements in air quality on the U&O Reservation and surrounding areas, finalizing a balance between the LDAR applicability thresholds of the Utah Oil and Gas Rules and the CTG is appropriate, as it will result in emissions reductions at more existing sources than if we finalized the proposed applicability threshold. It will not impose the requirement to implement an LDAR program at every oil and natural gas source on the Indian country lands within the U&O Reservation, which could potentially create a competitive disadvantage to operating on the Reservation, resulting
We expect that the final LDAR requirements of this FIP will result in meaningful reductions in VOC emissions and ground-level ozone production, significantly furthering our main objective for this U&O FIP of improving air quality. We determined that, particularly for existing sources, in order to meet our goal to provide consistent requirements across the Uinta Basin, the LDAR inspection frequency requirements in this U&O FIP should provide a measure of consistency with the LDAR inspection frequency requirements in the Utah Oil and Gas Rules, as those rules apply prospectively to all oil and natural gas well sites on non-reservation Indian country lands in the Uinta Basin that are not already subject to site-specific approval orders or the GAO. If the sources in the Uinta Basin that are in areas where the EPA has approved the UDEQ to implement the CAA are also subject to the LDAR requirements of the NSPS OOOOa, the NSPS requirements supersede the UDEQ requirements if the UDEQ requirements are less stringent. Similarly, if the sources in the Uinta Basin that are regulated by the EPA on Indian country lands within the U&O Reservation are subject to the LDAR requirements of NSPS OOOOa, those sources are exempt from complying with the LDAR requirements in this U&O FIP. We may revisit this final action in the future based on any final action we take under CAA section 111 with the Oil and Natural Gas Sector Climate Review rulemaking to address application of LDAR at sources covered by this FIP in a manner similar to the final national rule's provisions for sources that it covers. Also, if the Uinta Basin Ozone Nonattainment Area's Marginal classification is reclassified (“bumped up”) to a Moderate nonattainment classification, or if air quality concerns otherwise warrant, we may conclude that further rulemaking is necessary or appropriate.
We proposed general language in the fugitive emissions provisions allowing for the use of methods of leak detection other than EPA Reference Method 21 or optical gas imaging instrument to demonstrate compliance with the fugitive emissions monitoring requirements, provided the method is approved by the EPA. We solicited information in the proposed U&O FIP on alternative methods of leak detection (
Studies specific to the Uinta Basin have investigated the viability of leak detection method alternatives to conventional onsite instrument detection, including detection methods from an aerial platform. One study
We are finalizing the proposed provisions allowing operators to use
In response to several comments, and to clarify one provision, we made some changes to the proposed monitoring requirements for covers and closed vent systems and VOC emissions control devices to provide more consistency with NSPS OOOO and OOOOa. The proposed requirements for inspecting covers and closed vent systems were different than NSPS OOOOa in that they did not allow the option to demonstrate compliance by conducting optical gas imaging inspections on the same schedule as fugitive emissions inspections. We have added that option to the final FIP. Additionally, rather than adopt by reference the inspection requirements of NSPS OOOOa at 40 CFR 60.5416a(c), we incorporated streamlined inspection requirements for covers and closed vent systems into a common set of provisions, because the separate provisions in NSPS OOOOa are essentially the same. Although the preamble to the proposed rule explained that it would require that facilities “ensure that each enclosed combustor or utility flare is. . . operated with no visible smoke emissions,” in the proposed regulatory text we inadvertently mentioned only enclosed combustors, not flares, in the provision requiring owners and operators to verify on a monthly basis that there are no detectable smoke emissions. To make the regulatory text of the FIP consistent with the intent explained in the proposed rule as to flares, and also in response to comments that the FIP should provide more consistency with NSPS OOOO and OOOOa, the monitoring requirements being finalized today, consistent with NSPS OOOO and OOOOa, require Method 22 monitoring for all VOC control devices. We also streamlined the requirements to perform monthly inspections of the covers closed-vent systems and monthly inspections of the VOC emissions control devices, each separated by at least 15 days between each inspection, to provide operators the flexibility to schedule inspections in the same visit.
In response to several comments, we also made some changes to the proposed recordkeeping requirements to provide more consistency with the records that the UDEQ requires of oil and natural gas sources, as well as with the records required by NSPS OOOO and OOOOa. Regarding annual reports, we made changes to clarify in the final FIP the April 1st due date of each annual report, and that the reporting period for the initial annual report will be the period beginning with the effective date of the final rule through the end of that calendar year. Additionally, in response to public comments that annual reporting should be limited to targeted records that most efficiently indicate the degree of compliance with the U&O FIP, we have specified a subset of required records that must be summarized in the annual report related to each enclosed combustor or flare, each cover and closed-vent system, fugitive emissions monitoring and each high-bleed pneumatic controller, including deviations from rule requirements and corrective actions taken to address deviations.
This section summarizes the significant public comments on the proposed FIP and our response to those comments as they related to the specific requirements being finalized today in this U&O FIP. More detailed summaries of the comments and our responses are available in the docket for this rulemaking.
Further, we disagree with the assertion that only modeling can support a conclusion that substantial emissions reductions from this FIP could be relied on to support authorization to construct new and modified minor oil and natural gas sources under the National O&NG FIP. Unlike the NSR program for major sources in nonattainment areas, the minor NSR program does not require emissions offsets from existing sources in authorizing construction of new or modified minor sources in nonattainment areas, but rather requires the reviewing authority to demonstrate that new or modified minor sources in a nonattainment area would not cause or contribute to a NAAQS violation. The reviewing authority is not required to conduct modeling of minor source emissions to make such a demonstration. Rather, the rule provides the reviewing authority discretion to require modeling if it is concerned that new construction may cause or contribute to NAAQS violations. That discretion in demonstrating NAAQS protection was at work in the action to amend the National O&NG FIP, where we relied on existing source emissions reductions that we expect will be achieved from implementation of a U&O FIP. Based on our analysis of the current pace of new development under the National O&NG FIP, we expect that these reductions will far exceed the expected emissions from new construction. Our estimate for the expected magnitude of future development was based on a
Regarding the comment that the EPA must only permit the use of VOC emissions control devices designed to reduce VOC emissions by 98 percent and require annual control efficiency performance testing for those devices, we disagree. As explained earlier,
In response to the comment criticizing our proposal to apply LDAR requirements to sources that are required to control facility-wide VOC emissions from the collection of all storage vessels, glycol dehydrators and pneumatic pumps (
Boulder County Public Health Voluntary Inspection Program Results 2014-2018,” tracked leaks at well pads in Boulder County over a five-year period using OGI. The program resulted in 1,022 inspections at 147 well pad sites across the county from 2014 through 2018. Cumulatively, gas leaks were detected at 86 percent [
Regarding the comments that the FIP should cover sources of NO
Regarding the proposed requirement that monthly inspections must be performed while storage vessels are being filled, we acknowledge that storage vessel filling at certain well sites may occur less frequently than at other sites, due to the non-static nature of separator cycling and liquids transfer. We have removed the portion of the requirement that inspections must be performed while storage vessels are being filled. Because one cannot always hear or smell emissions from the collection of all storage vessels, we continue to hold the view that inspections conducted during filling events can be valuable for identifying storage vessel and closed vent system integrity defects, as filling events generate the largest flashing emissions. To maintain the effectiveness of visual inspections in identifying defects, in light of removal of the requirement that they be conducted during filling events, we have added language to 40 CFR 49.4182(c) that inspectors should note whether there are signs of oil releases around storage vessel thief hatches, seals and pressure relief valves (
In particular, the IWG concluded that the SC-GHG estimates developed under E.O. 13783, and used in the RIA of the proposed rule, fail to reflect the full impact of GHG emissions in multiple ways. First, the IWG concluded that those estimates fail to capture many climate impacts that can directly and indirectly affect the welfare of U.S. citizens and residents. Examples of affected interests include direct effects on U.S. citizens and assets located abroad, international trade, U.S. military assets and interests abroad, and tourism, and spillover pathways such as economic and political destabilization and global migration that can lead to adverse impacts on U.S. national security, public health, and humanitarian concerns. Those impacts are better captured within global measures of the social cost of greenhouse gases.
In addition, assessing the benefits of U.S. GHG mitigation activities requires consideration of how those actions may affect mitigation activities by other countries, as those international mitigation actions will provide a benefit to U.S. citizens and residents by mitigating climate impacts that affect U.S. citizens and residents. A wide range of scientific and economic experts have emphasized the issue of reciprocity as support for considering global damages of GHG emissions. Using a global estimate of damages in U.S. analyses of regulatory actions allows the U.S. to continue to actively encourage other nations, including emerging major economies, to take significant steps to reduce emissions. The only way to achieve an efficient allocation of resources for emissions reduction on a global basis—and so benefit the U.S. and its citizens—is for all countries to base their policies on global estimates of damages.
Therefore, for purposes of the RIA for this final rule EPA centers attention on a global measure of SC-CH
Finally, a comprehensive estimate of climate damages to U.S. citizens and residents does not currently exist in the literature. Existing estimates are both incomplete and an underestimate of total damages that accrue to the citizens and residents of the U.S. because they do not fully capture the regional interactions and spillovers discussed above, nor do they include all of the important physical, ecological, and economic impacts of climate change recognized in the climate change literature, as discussed further below. EPA, as a member of the IWG, will continue to review developments in the literature, including more robust methodologies for estimating the magnitude of the various direct and indirect damages to U.S. populations from climate impacts and reciprocal international mitigation activities, and explore ways to better inform the public of the full range of carbon impacts. While the IWG works to assess how best to incorporate the latest, peer reviewed science to develop an updated set of SC-GHG estimates, it recommended the interim estimates to be the most recent estimates developed by the IWG prior to the group being disbanded in 2017. The estimates rely on the same models and harmonized inputs and are calculated using a range of discount rates.
The response to comments document and the RIA for the final FIP provide more detailed discussion of the revised approach to estimating climate benefits from reducing methane as a benefit to reducing VOC.
The EPA projects that from 2023 to 2032, relative to the baseline, the final rule will result in about 23,000 tons of VOC emissions reductions, 59,000 tons of methane emissions reductions, and 3,100 tons of HAP emission reductions from affected oil and natural gas sources annually. We have estimated regulatory impacts beginning in 2023 as it is the first full year of implementation of this rule and have estimated impacts through 2032 to illustrate the accumulating effects of this rule over a longer period. The EPA did not estimate impacts after 2032 for reasons including limited information, as explained in the RIA.
There will likely be minimal change in emissions control energy requirements resulting from this rule. Additionally, this final action encourages the use of emission controls that recover hydrocarbon products that can be used on-site as fuel or reprocessed within the production process for sale. The energy impacts described in this section are those energy requirements associated with the operation of emission control devices.
The EPA estimates the total capital cost of the final FIP to be $280 million for affected sources. We looked at the effect of recovered methane as a cost saving measure. The value of recovered methane amounted to $2.1 million per year. The net PV of the regulatory compliance costs associated with this final rule over the 2023 to 2032 period when accounting for additional revenue from product recovery was estimated to be $560 million (in 2016 dollars) using a 7 percent discount rate and $610 million using a 3 percent discount rate. The net EAV of these costs when accounting for additional revenue from product recovery is estimated to be $81 million per year using a 7 percent discount rate and $72 million using a 3 percent discount rate.
Executive Order 13563 directs Federal agencies to consider the effect of regulation on job creation and employment. According to the Executive order, “our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science.” (Executive Order 13563, 2011). While a standalone analysis of employment impacts is not included in a standard benefit-cost analysis, such an analysis is of concern in the current economic climate given continued interest in the employment impact of regulations such as this final rule.
With respect to energy markets, the EPA has concluded that, while this action may affect the supply, distribution or use of energy, it is not likely to have significant energy market effects. For small entities, we conducted a screening analysis. Based on the results of this screening analysis, which is presented in the RIA for the final FIP, the EPA concluded that that the rule will not have a Significant Impact on a Substantial Number of Small Entities (SISNOSE). For employment impacts, we did not perform a quantitative analysis on all categories of employment changes as a result of the rule. This rule is expected to result in little change in oil and natural gas exploration and production and is not expected to result in significant changes to employment dedicated to these tasks. The EPA did, however, in its cost analysis for the rule, estimate changes in labor due to compliance activities. As presented in the RIA for this action, the EPA projected there will be increases in the labor required for compliance-related activities associated with this final rule. As the rule imposes VOC emission control requirements that are consistent with federal standards for the oil and natural gas industry that apply nation-wide or rules for similar sources that apply in areas of the Basin where the EPA has approved the UDEQ to implement the CAA, we expect that many operators of affected oil and natural gas sources may already have sufficient systems established for complying with the federal standards for other sources they operate in the Basin, and therefore labor impacts may be overstated in our estimates.
The EPA expects climate and health benefits due to the VOC emissions reductions projected under this final rule, as well as climate benefits from methane emissions reductions. Climate benefits from reducing emissions of CH
We note that the methodology underlying the SC-CH4 estimates used in this RIA been subject to public comment in the context of dozens of proposed rulemakings as well as in a dedicated public comment period in 2013. Further, the monetized climate benefits presented in this analysis are not a part of the technical or legal basis of the proposed action for which the RIA was prepared. Rather, the monetized benefits associated with projected reductions in greenhouse gas emissions that may result from the final rule are presented solely for purposes of compliance with E.O. 12866 and to present the public with information regarding the full scope of potential benefits of the final rule. We note that there is an ongoing interagency process to update the SC-GHG estimates, including the SC-CH4 estimates used in this analysis, and there will be further opportunity to provide public input on the SC-GHG methodology through that process.
The EPA estimated the PV of monetized climate benefits over the 2023 to 2032 period to be $1 billion using a 3 percent discount rate and estimated the PV of monetized net benefits to be $390 million using a 3 percent discount rate and $440 million using a 7 percent discount rate for costs and a 3 percent discount rate for benefits. We estimate the EAV of monetized climate benefits over the 2023 to 2032 period to be $120 million using a 3 percent discount rate. We estimated the EAV of net benefits to be $48 million using a 3 percent discount rate for both benefits and costs. We estimated the EAV of net benefits to be $39 million using a 3 percent discount rate for benefits and a 7 percent discount rate for costs.
U.S. EPA. September 2015. “Regulatory Impact Analysis of the Final Revisions to the National Ambient Air Quality Standards for Ground-Level Ozone.” EPA-452/R-15-007. Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, available in the docket for this rulemaking (Docket ID No. EPA-R08-OAR-2015-0709).
When quantifying the incidence and economic value of human health impacts of air quality changes, the Agency sometimes relies upon alternative approaches to using full-form air quality modeling, called reduced-form techniques, often reported as “benefit-per-ton” values that relate air pollution impacts to changes in air pollutant precursor emissions.
Litovitz, A., A. Curtright, S. Abramzon, N. Burger, and C. Samaras. 2013. “Estimation of Regional Air-Quality Damages from Marcellus Shale Natural Gas Extraction in Pennsylvania.” Environmental Research Letters 8(1), 014017.
Loomis, J. and M. Haefele. 2017. “Quantifying Market and Non-market Benefits and Costs of Hydraulic Fracturing in the United States: A Summary of the Literature.” Ecological Economics 138:160-167.
This action is an economically significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. The EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis, “Regulatory Impact Analysis of the Final Federal Implementation Plan for Managing Emissions from Oil and Natural Gas Sources on Indian Country Lands Within the Uintah and Ouray Indian Reservation in Utah” (Ref. EPA-908/Z-16-001), is available in the docket, and is summarized in
The information collection activities in this rule will be submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2539.02. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
This final action imposes a new information collection burden under the PRA. The ICR covers information collection necessary to meet the requirements in this U&O FIP. In general, owners or operators are required to maintain records of required monitoring and other rule compliance. This U&O FIP also requires annual reports containing information for each oil and natural gas source, including a summary of certain required records during the reporting period, and a summary of certain instances where operation was not performed in compliance with the requirements of this U&O FIP during the reporting period. Additionally, a summary emissions inventory is required for each source covered under this rulemaking once every three years. These reports and records are essential in determining compliance and are required of all sources subject to this U&O FIP. The information collected will be used by the EPA or the Ute Indian Tribe to determine the compliance status of sources subject to the rule.
The EPA received one comment letter specifically on the ICR for the proposed U&O FIP, as well as several other comments related to the monitoring, recordkeeping, and reporting in the proposed rule. The EPA responded to these comments, as summarized in Sections VI.E and F. of this preamble and in the response to comments document in the docket for this rulemaking.
In addition, section 114(a) states that the Administrator may require any owner or operator subject to any requirement of this Act to:
• Establish and maintain such records;
• Make such reports;
• Install, use, and maintain such monitoring equipment, and use such audit procedures, or methods;
• Sample such emissions (in accordance with such procedures or methods, at such locations, at such intervals, during such periods, and in such manner as the Administrator shall prescribe);
• Keep records on control equipment parameters, production variables or other indirect data when direct monitoring of emissions is impractical;
• Submit compliance certifications in accordance with section 114(a)(3); and
• Provide such other information as the Administrator may reasonably require.
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 OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are owners/operators of oil and natural gas sources on the Indian country lands within the U&O Reservation. They were identified through a screening analysis of existing oil and natural gas sources and emissions submitted by owners/operators on the Indian country lands within the U&O Reservation under UBEI2017-Update. The Agency has determined that only two out of 14 total small entities, or 14 percent, may experience an annualized cost impact of 1 percent to 3 percent of annual revenues, and thus may potentially incur significant economic impact. It was determined that the other 12 small entities would incur annualized costs less than 1 percent of annual sales, and therefore, are not expected to incur significant economic impacts from this rule. Details of this analysis are presented in the RIA and can be viewed in the docket for this rulemaking (Docket ID No. EPA-R08-OAR-2015-0709).
This final action does not contain an unfunded mandate of $100 million of more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector.
The legal authority for this rule stems from sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a). See section III.B of this preamble for more information.
As discussed in
The EPA estimated the labor impacts due to compliance with the final rule for affected entities within the oil and natural gas industry, including the installation, operation, and maintenance of control equipment and control activities, as well as the labor associated
Alternate regulatory options examined in the RIA include a low-impact option (Option 1) and a high-impact option (Option 3). Option 1 would not include control of emissions from glycol dehydrators. This is in contrast to preferred Option 2, which requires control of emissions from glycol dehydrators where the source-wide VOC emissions from the collection of all storage vessels, glycol dehydrators and pneumatic pumps is equal to or greater than 4 tpy per 40 CFR 49.4173 through 49.4177. The EPA could have considered a range of even less stringent regulatory options than Option 1 to evaluate and propose, including an option that would not require retrofit of existing storage vessels with controls or require controls less broadly. Retrofitting existing storage vessels with controls is one of the higher costs evaluated in this rulemaking. Such an option, however, would lead to even greater disparity with the requirements for similar sources in in areas of the Basin where the EPA has approved the UDEQ to implement the CAA than Option 1. Option 3 (high impact) would require implementation of an LDAR program at all existing oil and natural gas sources, regardless of daily production, or storage vessel, dehydrator, and pneumatic pump annual VOC emissions. We sought comment on the proposed FIP for whether it was appropriate to consider less or more stringent regulatory options, for example, an option that does not include retrofitting existing storage vessels for controls. We acknowledged that if comments supported finalizing less or more stringent regulatory options as viable and if the agency decided to adopt an option that was not offered in the proposal, the EPA may be required to hold an additional public comment period on this rulemaking. We did receive comments asserting both that less stringent and more stringent options were appropriate for this rulemaking. We summarized our responses to comments related to the regulatory options evaluated in the response to comments document in the docket for this rulemaking.
The EPA estimates the equivalent annualized costs of the preferred option in 2023 in 2016 dollars using a 7 percent discount rate when accounting for additional revenue from product recovery are $81 million ($3,500 per ton of VOC reduced). When using a 3 percent discount rate, the estimates of total equivalent annualized costs of the final FIP when accounting for additional revenue from product recovery are $72 million when accounting for additional revenue from product recovery ($3,200 per ton of VOC reduced).
The equivalent annualized costs of the less stringent option (Option 1) when accounting for additional revenue from product recovery would be $77 million in 2023 in 2016 dollars using a 7 percent discount rate, resulting in a cost of control of $4,100 per ton of the estimated 19,000 tons of VOC reduced, and $69 million in 2023 using a 3 percent discount rate, resulting in a cost of control of $3,600 per ton of VOC reduced. Option 1 was analyzed to reduce burden on small entities, while still achieving meaningful VOC emissions reductions. Although this option would cost less overall than preferred Option 2, it would achieve less benefits in the form of VOC emissions reductions (19,000 tons versus 23,000 tons for final Option 2), as emissions from glycol dehydrators would not be controlled and a smaller number of oil and natural gas sources would be required to control storage vessels and pneumatic pumps, because a larger amount of VOC emissions would be required from the collection of all storage vessels and pneumatic pumps at sources that also have glycol dehydrators in order to trigger the control applicability threshold than under Option 2.
The equivalent annualized costs of the most stringent option (Option 3) when accounting for additional revenue from product recovery would be $88 million in 2023 in 2016 dollars using a 7 percent discount rate, resulting in a cost of control of $3,500 per ton of the estimated 25,000 tons of VOC reduced, and $79 million in 2023 using a 3 percent discount rate, resulting in a cost of control of $3,100 per ton of VOC reduced. Option 3 was analyzed to achieve a greater level of VOC emissions reductions. Although this option would achieve about 3,000 more tons of VOC emissions reductions than preferred Option 2 (25,000 tons versus 23,000 tons for final Option 2), it would also result in increased costs (though the cost of control per ton of VOC reduced would be about the same as Option 2). Additionally, Option 3 would result in regulatory requirements that are inconsistent with the requirements for equivalent sources in areas of the Basin where the EPA has approved the UDEQ to implement the CAA, thus not meeting our goal of regulatory consistency across the Uinta Basin.
For a more in-depth analysis of these options, see the RIA for this final U&O FIP.
This final 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 final action has tribal implications, because it establishes rules affecting a substantial number of industrial operations in Indian country within the U&O Reservation. The emissions improvement measures required by this rule will benefit the health and welfare of members of the Tribe. In addition, some of these
The EPA consulted with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this regulation to permit them to have meaningful and timely input on its development. A summary of that consultation and other communications with the Ute Indian Tribe follows. The EPA has conducted outreach on this final rule consistent with the
The EPA held consultations with elected officials of the Ute Indian Tribe Business Committee on the following dates: July 22, 2015; December 17, 2016; November 13, 2017; March 22, 2018, August 17, 2018; November 14, 2018; February 28, 2019; April 2, 2019; February 5, 2020; and August 2, 2022. The EPA has also participated in tribally convened stakeholder meetings on March 22, 2017, and June 1-2, 2017, as well as many informal informational meetings with tribal elected officials and air quality staff.
During the consultations and other discussions on this U&O FIP, the Tribe expressed concerns regarding their economic needs to develop and generate revenue from Tribal oil and natural gas resources; to consider air quality effects on the health, safety, and welfare concerns of their tribal membership living within the exterior boundaries of the U&O Reservation and the Uinta Basin; and to reconcile regulatory requirements for an even economic and regulatory playing field. We addressed questions the Tribe had regarding the controls being considered, the ability for owners or operators to take credit for the controls for purposes such as permitting and NAAQS attainment, the estimated costs of proposed controls, the characterization of Indian country, and the breadth of oil and natural gas source category types proposed to be regulated. The Ute-Tribe-convened stakeholder meetings involved discussions on appropriate ways to expedite nonattainment permitting for new and modified minor oil and natural gas sources on the Indian country lands within the U&O Reservation. Ute Indian Tribe and industry participants recognized that existing source emissions reductions would likely be necessary in order for the EPA to demonstrate that construction authorization for new and modified sources would not cause or contribute to NAAQS violations in the nonattainment area.
Enacting a FIP for Indian country lands within the U&O Reservation is directly responsive to the Ute Indian Tribe's air quality concerns in that we are implementing our CAA authority to protect air quality on and surrounding Indian country lands within the U&O Reservation in a manner that provides regulatory consistency with respect to requirements for oil and natural gas sources in areas of the Basin where the EPA has approved the UDEQ to implement the CAA. We are committed to supporting tribes' right to self-governance and to protecting their inherent sovereignty. Throughout development of this final action, we continued to provide outreach to tribal environmental professionals and continued consultation with tribal leadership.
As required by section 7(a), the EPA's Tribal Consultation Official has certified that the requirements of the executive order have been met in a meaningful and timely manner. A copy of the certification is included in the docket for this action.
This action is subject to Executive Order 13045 because it is an economically significant regulatory action as defined by Executive Order 12866 and the EPA has concluded that the environmental health or safety risk addressed by this final action has a disproportionate effect on children. Accordingly, we have evaluated the environmental health or safety effects of exposure to elevated ozone concentrations on children. This action's health and risk assessments are contained in the Impacts of this Final FIP and Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations sections in this preamble (sections VII. and VIII.K., respectively), with more detailed information contained in the RIA for this rulemaking.
This action is not a “significant energy action”, because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The basis for these determinations follows.
The EPA prepared an analysis of the potential costs and benefits associated with this action, which is included in the RIA,
Additionally, this U&O FIP establishes several emissions control standards that give regulated entities flexibility in determining how to best comply with the regulation. Even within the geographically and economically homogeneous affected area within the Uinta Basin, this flexibility is an important factor in reducing regulatory burden. For more information on the estimated energy effects of the rule, please see the RIA, which is in the docket for this rule.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272 note, directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards, which include materials specifications, test methods, sampling protocols, business practices and management systems developed or adopted by voluntary consensus standards bodies (VCSB), both domestic and international. These bodies plan, develop, establish or coordinate voluntary consensus standards using agreed-upon procedures.
This action involves technical standards. Therefore, the EPA conducted a search to identify potentially applicable VCS. However, the Agency identified no such standards and none were brought to its attention in comments.
While the EPA finds that communities in the Uinta Basin with higher proportions of low-income populations and people of color rank in the 90th percentile for ozone concentrations in the baseline based on EJSCREEN, the EPA concludes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898.
The documentation for this decision is contained in the RIA
This final action will also provide regulatory certainty to owners/operators, by imposing, to the extent appropriate, requirements that are the same as or consistent with those applicable to such existing sources that in areas of the Basin where the EPA has approved the UDEQ to implement the CAA because they are not on Indian country lands within the Reservation. This will ensure that economic impacts are consistent and air quality is protected consistently across the Uinta Basin. Our Environmental Justice (EJ) analysis that can be found in the RIA for this rulemaking supports the conclusion that this action is not expected to result in disproportionate impacts.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Administrative practice and procedure, Air pollution control, Indians, Indians-law, Indians-tribal government, Intergovernmental relations, Reporting and recordkeeping requirements.
For reasons set forth in the preamble, part 49 of title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401,
(a)
(b)
(c)
(a)
(b)
(1) Identifies the specific provisions for which delegation is requested;
(2) Includes a statement by the Ute Indian Tribe's legal counsel (or equivalent official) with the following information:
(i) A statement that the Ute Indian Tribe is an Indian tribe recognized by the Secretary of the Interior;
(ii) A descriptive statement that meets the requirements of § 49.7(a)(2) and demonstrates that the Ute Indian Tribe is currently carrying out substantial governmental duties and powers over a defined area;
(iii) A description of the laws of the Ute Indian Tribe that provide adequate authority to carry out the aspects of the rule for which delegation is requested; and
(3) Demonstrates that the Ute Indian Tribe has, or will have, adequate resources to carry out the aspects of the rule for which delegation is requested.
(c)
(2) A Delegation of Authority Agreement may be modified, amended, or revoked, in part or in whole, by the Regional Administrator after consultation with the Ute Indian Tribe.
(d)
(a) At all times, including periods of startup, shutdown, and malfunction, each owner or operator must, to the extent practicable, design, operate, and maintain all equipment used for crude oil, condensate, intermediate hydrocarbon liquid, or produced water, and gas collection, storage, processing, and handling operations covered under §§ 49.4171 and 49.4173 through 49.4184, regardless of emissions rate and including associated air pollution control equipment, in a manner that is consistent with good air pollution control practices and that minimizes leakage of VOC emissions to the atmosphere. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the Administrator, including monitoring results, review of operating and maintenance procedures, and inspection of the source.
(b)
(i) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,
(ii) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and
(iii) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
(i) Vessels that are skid-mounted or permanently attached to something that is mobile (such as trucks, railcars, barges or ships), and are intended to be located at a site for less than 180 consecutive days. If you do not keep or are not able to produce records, as required by § 49.4183(a)(1)(iv), showing that the vessel has been located at a site for less than 180 consecutive days, the vessel is considered to be a storage vessel from the date it was first located at the site. This exclusion does not apply to a well completion vessel as described above.
(ii) Process vessels such as surge control vessels, bottoms receivers, and knockout vessels.
(iii) Pressure vessels designed to operate in excess of 204.9 kilopascals and without emissions to the atmosphere.
(a)
(b) Each oil and natural gas source must submit an inventory for every third year, beginning with the 2023 calendar year, for all emission units at a source.
(c) The inventory must include the total emissions for PM
(d) The inventory must include the type and efficiency, for each pollutant controlled, of any air pollution control equipment present at the reporting source. The detail of the emissions inventory must be consistent with the detail and data elements required by 40 CFR part 51, subpart A.
(e) The inventory must be submitted to the EPA no later than April 15th of the year following each inventory year.
(f) The inventory must be submitted in an electronic format specific to this source category, as instructed on the EPA Region 8 website at
(a)
(1) For oil and natural gas sources that began operations before February 6, 2023, the VOC emissions control requirements of this section apply when the source-wide potential for VOC emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps is equal to or greater than 4 tpy, as determined according to this section. The potential for VOC emissions must be calculated using a generally accepted model or calculation methodology, based on the maximum average daily throughput determined for a 30-day period of production during the 12 months before the compliance deadline for the affected source under this rule. The determination may take into account requirements under a legally and practicably enforceable limit in an operating permit or other federally enforceable requirement. You must reevaluate the source-wide VOC emissions from the collection of all storage vessels, glycol dehydrators and pneumatic pumps for each modification to an existing source; or
(2) For oil and natural gas sources that began operations on or after February 6, 2023, the VOC emissions control requirements of this section apply upon startup of operation.
(3) Modification to an oil and natural gas source requires a re-evaluation of the source-wide VOC emissions from the collection of all storage vessels, glycol dehydrators and pneumatic pumps. Adding production from a new well or increasing production at an existing well is considered a modification of a well site. Increasing maximum throughput at a tank battery, compressor station or natural gas processing plant is considered a modification.
(b)
(2) This section does not apply to an emergency storage vessel located at an oil and natural gas source, if it meets the following requirements:
(i) The emergency storage vessel is not used as an active storage vessel;
(ii) The owner or operator empties the emergency storage vessel no later than 15 days after receiving fluids;
(iii) The emergency storage vessel is equipped with a liquid level gauge or equivalent device; and
(iv) Records are kept of the usage of each emergency storage vessel as required in § 49.4183(a)(3), including the date the vessel received fluids, the volume of fluids received in barrels, the date the vessel was emptied, and the volume of fluids emptied in barrels.
(3) This section does not apply to storage vessels that are removed from service. If you remove a storage vessel from service, you must comply with paragraphs (b)(3)(i) through (iii) of this section.
(i) For a storage vessel to be removed from service, you must comply with the requirements of paragraphs (b)(3)(i)(A) and (B) of this section.
(A) You must completely empty and degas the storage vessel, such that the storage vessel no longer contains crude oil, condensate, intermediate hydrocarbon liquids or produced water. A storage vessel where liquid is left on walls, as bottom clingage, or in pools due to floor irregularity is considered to be completely empty.
(B) You must keep records as required in § 49.4183(a)(4), identifying each storage vessel removed from service and the date of its removal from service.
(ii) If a storage vessel identified in paragraph (b)(3)(i)(B) of this section is returned to service, you must determine its applicability as provided in paragraph (a) of this section, and you must keep records as required in § 49.4183(a)(4), identifying the storage vessel and the date of its return to service.
(c)
(1) You must reduce VOC emissions from each storage vessel by at least 95.0 percent on a continuous basis according to paragraph (c)(1)(i) or (ii) of this section. You must equip each storage vessel with a cover that meets the conditions specified in § 49.4176(c), and must route all flashing, working, standing and breathing losses from the storage vessels through a closed-vent system that meets the conditions specified in § 49.4176(d) to:
(i) An operating system designed to recover 100 percent of the emissions and recycle them for use in a process unit or incorporate them into a product; or
(ii) An enclosed combustor or flare that is designed to reduce the mass content of VOC in the natural gas emissions vented to the device by at least 95.0 percent and that is operated as specified in § 49.4177;
(2) You must maintain the source-wide uncontrolled actual VOC emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps at an oil and natural gas source at less than 4 tpy. Before using the uncontrolled actual VOC emission rate for compliance purposes, you must demonstrate that the uncontrolled actual VOC emissions have remained at less than 4 tpy, as determined monthly for 12 consecutive months. After such demonstration, you must determine the uncontrolled actual VOC emission rate each month. The uncontrolled actual VOC emissions must be calculated using a generally accepted model or calculation methodology. Monthly calculations must be based on the average throughput of the source for the month. Monthly calculations must be separated by at least 14 days. You must comply with paragraph (c)(1) of this section within 30 days of the monthly emissions determination required in this section if the determination indicates that VOC emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps at your oil and natural gas source increased to 4 tpy or greater.
(3) Except as provided in paragraph (c)(4) of this section, if you use a control device to reduce emissions from your storage vessels, you must equip each storage vessel with a cover that meets the requirements of § 49.4176(c).
(4) If you use a floating roof to reduce emissions, you must meet the requirements of § 60.112b(a)(1) or (2) and the relevant monitoring, inspection, recordkeeping, and reporting requirements in 40 CFR part 60, subpart Kb.
(5) After a minimum of 12 consecutive months of operation at a source that begins operation on or after February 6, 2023, controls may be removed if the source-wide uncontrolled actual VOC emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps has been maintained at a rate less than 4 tpy, as determined according to paragraph (c)(2) of this section.
(a)
(b)
(c)
(1) You must reduce VOC emissions from each glycol dehydration unit process vent by at least 95.0 percent on a continuous basis according to paragraphs (c)(1)(i) and (ii) of this section. You must route all glycol dehydration unit process vent emissions through a closed-vent system that meets the conditions specified in § 49.4176(d) to:
(i) An operating system designed to recover 100 percent of the emissions and recycle them for use in a process unit or incorporate them into a product; or
(ii) An enclosed combustor or flare designed to reduce the mass content of VOC in the emissions vented to the device by at least 95.0 percent and operated as specified in § 49.4177; or
(2) You must maintain the source-wide uncontrolled actual VOC emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps at an oil and natural gas source at less than 4 tpy for 12 consecutive months in accordance with the procedures specified in § 49.4173(c)(2).
(a)
(b)
(c)
(1) You must reduce VOC emissions from each pneumatic pump by at least 95.0 percent on a continuous basis according to paragraph (c)(1)(i) or (ii) of this section. You must route all pneumatic pump emissions through a closed-vent system that meets the conditions specified in § 49.4176(d) to:
(i) An operating system designed to recover 100 percent of the emissions and recycle them for use in a process unit or incorporate them into a product; or
(ii) An enclosed combustor or flare designed to reduce the mass content of VOC in the emissions vented to the device by at least 95.0 percent and operated as specified in § 49.4177; or
(2) You must maintain the source-wide uncontrolled actual VOC emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps at an oil and natural gas source at less than 4 tpy for any 12 consecutive months in accordance with the procedures specified in § 49.4173(c)(2).
(a)
(b)
(c)
(1) Each cover and all openings on the cover (
(2) Each cover opening must be secured in a closed, sealed position (
(i) To add fluids to, or remove fluids from the unit (this includes openings necessary to equalize or balance the internal pressure of the unit following changes in the level of the material in the unit);
(ii) To inspect or sample the fluids in the unit; or
(iii) To inspect, maintain, repair, or replace equipment located inside the unit.
(3) Each thief hatch cover must be weighted and properly seated to ensure that flashing, working, standing, and breathing loss emissions are routed through the closed-vent system to the vapor recovery system, the enclosed combustor, or the flare under normal operating conditions.
(4) Each PRV must be set to release at a pressure that will ensure that flashing, working, standing, and breathing loss emissions are routed through the closed-vent system to the vapor recovery system, the enclosed combustor, or the flare under normal operating conditions.
(d)
(1) Each closed-vent system must route all captured storage vessel emissions from flashing, working, standing, and breathing losses; glycol dehydration unit process vent emissions; and pneumatic pump emissions from the oil and natural gas source to a gathering pipeline system for sale, use in a process unit, incorporation into a product, or other beneficial purpose, or to a VOC emission control device, as specified in §§ 49.4173 through 49.4175.
(2) All vent lines, connections, fittings, valves, relief valves, and any other appurtenances employed to collect or contain captured storage vessel emissions from flashing, working, standing, and breathing losses; glycol dehydration unit process vent emissions; or pneumatic pump emissions; or to transport such emissions to a gathering pipeline system for sale, use in a process unit, incorporation into a product, or other beneficial purpose, or to a VOC emission control device, as specified in §§ 49.4173 through 49.4175, must be maintained and operated properly at all times.
(3) Each closed-vent system must be designed to operate with no detectable emissions, as demonstrated by the closed-vent system monitoring requirements in § 49.4182(c).
(4) If any closed-vent system contains one or more bypass devices that could be used to divert all or a portion of the captured storage vessel flashing, working, standing, and breathing losses; glycol dehydration unit process vent emissions; or pneumatic pump emissions from entering a gathering pipeline system for sale, use in a process unit, incorporation into a product, or other beneficial purpose, or from being transferred to the VOC emissions control device, the owner or operator must meet one of the requirements in paragraphs (d)(4)(i) or (ii) of this section for each bypass device. Low leg drains, high point bleeds, analyzer vents, open-ended valves or lines, and safety devices are not subject to the requirements applicable to bypass devices.
(i) At the inlet to a bypass device the owner or operator must properly install, calibrate, maintain, and operate a flow indicator that is capable of taking continuous readings and sounding an alarm when the bypass device is open such that emissions are being, or could be, diverted away from a gathering pipeline system for sale, use in a process unit, incorporation into a product, or other beneficial purpose, or the VOC emission control device and into the atmosphere; or
(ii) The owner or operator must secure the bypass device valve installed at the inlet to the bypass device in the non-diverting position using a car-seal or a lock-and-key type configuration.
(a)
(b)
(c)
(1) For each enclosed combustor or flare, the owner or operator must follow the manufacturer's written operating instructions, procedures, and
(2) The owner or operator must ensure that each enclosed combustor or flare is designed to have sufficient capacity to reduce the mass content of VOC in the captured emissions routed to it by at least 95.0 percent for the minimum and maximum natural gas volumetric flow rate and BTU content routed to the device;
(3) Each enclosed combustor or flare must be operated to reduce the mass content of VOC in the captured emissions routed to it by continuously meeting at least 95.0 percent VOC control efficiency;
(4) The owner or operator must ensure that each flare is designed and operated in accordance with the requirements of 40 CFR 60.18(b) for such flares;
(5) The owner or operator must ensure that each enclosed combustor is:
(i) A model that is:
(A) Demonstrated by a manufacturer to meet the VOC control efficiency requirements of §§ 49.4173 through 49.4176 using EPA-approved performance test procedures specified in 40 CFR 60.5413; or
(B) Demonstrated by the owner or operator to meet the VOC control efficiency requirements of §§ 49.4173 through 49.4176 according to the procedures and schedule specified in § 49.4182(d)(1);
(ii) Operated properly at all times that captured emissions are routed to it;
(iii) Operated with a liquid knock-out system to collect any condensable vapors (to prevent liquids from going through the control device);
(iv) Equipped and operated with a flash-back flame arrestor;
(v) Equipped and operated with one of the following:
(A) A continuous burning pilot; or
(B) An operational electronically controlled automatic ignition device;
(vi) Equipped with a monitoring system for continuous measuring and recording of the parameters that indicate proper operation of each enclosed combustor or flare, including each continuous burning pilot flame or electronically controlled automatic ignition device, to monitor and document proper operation of the enclosed combustor or flare. Examples of such continuous monitoring systems may include a thermocouple and a chart recorder, data logger or similar device, or connection to a SCADA system;
(vii) Maintained in a leak-free condition; and
(viii) Operated with no visible smoke emissions.
(d)
(1) In operating such control devices, the owner or operator must follow the manufacturer's written operating instructions, procedures and maintenance schedule to ensure good air pollution control practices for minimizing emissions; and
(2) The owner or operator must ensure there is sufficient capacity to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to such other control devices by at least 95.0 percent for the minimum and maximum natural gas volumetric flow rate and BTU content routed to each device.
(3) The owner or operator must operate such a control device to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to it by at least 95.0 percent.
(a)
(b) Owners or operators of the collection of fugitive emissions components must comply with paragraph (d) of this section if either of the following is true:
(1) The collection of fugitive emissions components is located at an oil and natural gas source that is required to control VOC emissions according to §§ 49.4173 through 49.4177 of this section (
(2) The collection of fugitive emissions components is located at a well site, as defined in 40 CFR 60.5430a, that at any time has total production greater than 15 barrels of oil equivalent (boe) per day based on a rolling 12-month average.
(c) Owners or operators of the collection of fugitive emissions components for which neither (b)(1) nor (b)(2) is true must comply with either paragraph (c)(1) or paragraph (c)(2) of this section.
(1) You must monitor all fugitive emissions components and repair all sources of fugitive emissions in accordance with paragraph (d) of this section. You must keep records in accordance with § 49.4183 and report in accordance with § 49.4184; or
(2) You must maintain the total production for the well site at or below 15 boe per day based on a rolling 12-month average. You must demonstrate that the total daily oil and natural gas production from the collection of all wells producing to the well site is at or below 15 boe per day, based on a 12-month rolling average, according to the procedures in paragraph (e) of this section. You must maintain records as specified in § 49.4183(a)(11).
(d)
(i) A requirement to perform an initial monitoring of the collection of fugitive emissions components at each oil and natural gas source by February 6, 2024;
(ii) A requirement to perform subsequent monitoring of the collection of fugitive emissions components at each oil and natural gas source once every 6 months after the initial monitoring survey, with consecutive monitoring surveys conducted at least 4 months apart and no more than 7 months apart.
(iii) A description of the technique used to identify leaking fugitive emission components, which must be limited to:
(A) Onsite EPA Reference Method 21, 40 CFR part 60, appendix A, where an analyzer reading of 500 parts per million volume (ppmv) VOC or greater is considered a leak in need of repair;
(B) Onsite optical gas imaging instruments, as defined in 40 CFR 60.18(g)(4), where any visible emissions are considered a leak in need of repair, unless the owner or operator evaluates the leak with an analyzer meeting EPA Reference Method 21 at 40 CFR part 60, appendix A, and the concentration is less than 500 ppmv. The optical gas imaging instrument must be capable of meeting the optical gas imaging
(C) Another method approved by the Administrator to demonstrate compliance with the fugitive emissions monitoring requirements. To be approved, you must demonstrate that the alternative method achieves emissions reductions that equal or exceed those that would result from the application of either Method 21 or optical gas imaging instruments. Approval of an alternative method will be subject to public notice and comment.
(iv) The manufacturer and model number of any fugitive emissions monitoring device to be used;
(v) Procedures and timeframes for identifying and repairing components from which leaks are detected, including:
(A) A requirement to repair any leaks identified from components that are safe to repair and do not require source shutdown as soon as practicable, but no later than 30 calendar days after discovering the leak;
(B) Timeframes for inspecting and repairing leaking components that are difficult-to-monitor, unsafe-to-monitor, or require source shutdown, to be no later than the next required monitoring event, as noted in paragraphs (c)(1)(v)(B)(
(
(
(
(C) Procedures for verifying leaking component repairs, no more than 30 calendar days after repairing the leak;
(vi) Training and experience needed before performing surveys;
(vii) Procedures for calibration and maintenance of any fugitive emissions monitoring device to be used; and
(viii) Standard monitoring protocols for each type of typical oil and natural gas source (
(2) The owner or operator is exempt from inspecting and repairing a fugitive emissions component under any of the following circumstances:
(i) The contacting process stream only contains glycol, amine, methanol, or produced water; or
(ii) The component to be inspected is buried, insulated in a manner that prevents access to the components by a monitor probe or optical gas imaging device, or obstructed by equipment or piping that prevents access to the components by a monitor probe or optical gas imaging device.
(e)
(1) Calculate the total average boe per day for each calendar month using:
(i) For existing well sites, the records of production for the first 30 days after becoming subject to this section.
(ii) For well sites that commence construction, reconstruction or modification on or after February 6, 2023, the first 30 days of production, performing the calculation within 45 days of the end of the first 30 days of production.
(2) Determine the daily oil and natural gas production for each individual well at the well site for the month. To convert gas production to equivalent barrels of oil, divide the cubic feet of gas produced by 6,000.
(3) Sum the daily production for each individual well at the well site to determine the total well site production and divide by the total number of days in the calendar month. This is the average daily total well site production for the month.
(4) Use the result determined in paragraph (e)(2) of this section and average with the daily average well site production values determined for each of the preceding 11 months to calculate the rolling 12-month average of the total well site production.
(a)
(b)
(a)
(b)
(c)
(d)
(a)
(b)
(a)
(b)
(c) Each owner or operator must inspect each cover and closed-vent system as specified in paragraphs (c)(1) or (2).
(1) Conduct olfactory, visual, and auditory inspections at least once every calendar month, separated by at least 15 days between each inspection, of each cover and closed-vent system, including each bypass device, and each storage vessel thief hatch, seal, and pressure relief valve, to ensure proper condition and functioning of the equipment to identify defects that can result in air emissions according to the procedures. Examples of defects are visible cracks, holes, or gaps in the cover or piping, or between the cover and the separator wall; loose connections; liquid leaks; and broken, cracked, or otherwise damaged seals or gaskets on closure devices, caps, or other closure devices. If the storage vessel is partially or entirely buried, you must inspect only those portions of the cover that extend to or above the ground surface, and those connections that are on such portions of the cover (
(2) Conduct optical gas imaging inspections of each cover and closed vent system for any visible emissions at the same frequency as the frequency for the collection of fugitive emissions components located at the oil and natural gas source, as specified in § 49.4178(d)(1).
(d) Each owner or operator must monitor the operation of each enclosed combustor and flare to confirm proper operation and demonstrate compliance with the requirements of § 49.4177(c), as follows and as applicable:
(1) Demonstrate compliance with the requirement of § 49.4177(c)(5)(i)(B) that each enclosed combustor must be demonstrated by the owner or operator to meet the VOC control efficiency requirements of §§ 49.4173 through 49.4176, by conducting performance tests using EPA-approved performance test methods and procedures specified in 40 CFR 60.5413 and according to the schedule specified in paragraphs (d)(1)(i) and (ii) of this section.
(i) You must conduct an initial performance test within 180 days after the effective date of this rule for existing enclosed combustors, and within 180 days after initial startup for new enclosed combustors. You must submit the performance test results as specified in § 49.4184(a) within 60 days of completing the test.
(ii) You must conduct periodic performance tests for all enclosed combustors required to conduct initial performance tests. You must conduct the first periodic performance test no later than 60 months after the initial performance test required in paragraph (d)(1)(i) of this section. You must conduct subsequent periodic performance tests at intervals no longer than 60 months following the previous periodic performance test or whenever you desire to establish a new operating limit. You must submit the periodic performance test results as specified in § 49.4184(a) within 60 days of completing each test.
(iii) The owner or operator of an enclosed combustor whose model is tested under, and meets the criteria of, § 49.4177(c)(5)(i)(A) is not required to conduct performance testing.
(2) Conduct inspections of each enclosed combustor or flare at least once every calendar month, separated by at least 15 days between each inspection, to confirm proper operation of the device, as follows:
(i) Demonstrate that each enclosed combustor or flare is operated with no visible smoke emissions, except for periods not to exceed a total of 1 minute during any 15-minute period, by conducting a visible emissions test using section 11 of EPA Method 22 of appendix A-7 of 40 CFR part 60. The observation period must be of sufficient length to meet the requirement for determining compliance with this visible emissions standard. Devices failing the visible emissions test must follow manufacturer's repair instructions, if available, or best combustion engineering practice as outlined in the unit inspection and maintenance plan, to return the unit to compliant operation. All inspection, repair, and maintenance activities for each unit must be recorded in a maintenance and repair log and must be available for inspection. Following return to operation from maintenance or repair activity, each device must pass a Method 22 of Appendix A-7 of 40 CFR part 60 visual observation as described in this paragraph.
(ii) Conduct visual inspections to confirm that the pilot is lit when vapors are being routed to the device and that the continuous burning pilot or electronically controlled automatic ignition device and the continuous parameter monitoring system is operating properly;
(iii) Conduct olfactory, visual and auditory inspections of all other equipment associated with the combustion device to ensure system integrity; and
(iv) Respond to any indication of pilot flame failure and ensure that the pilot flame is relit as soon as practically and safely possible after discovery.
(e) Where sufficient to meet the monitoring requirements in this section,
(a) Each owner or operator of an oil and natural gas source as identified in § 49.4169(b) must maintain the following records, as applicable:
(1) Monthly calculations, as specified in § 49.4173(c)(2), demonstrating that the uncontrolled actual VOC emissions from the collection of all storage vessels, glycol dehydrators, and pneumatic pumps at an oil and natural gas source, as identified in § 49.4169(b), have been maintained at less than 4 tpy;
(2) Records of monthly and rolling 12-month crude oil, condensate, intermediate hydrocarbon liquids, produced water or natural gas throughput;
(3) For each emergency storage vessel that is exempted from the control requirements of § 49.4173(b)(2), records of usage including:
(i) The date the vessel received fluids;
(ii) The volume of fluids received in barrels;
(iii) The date the overflow vessel was emptied; and
(iv) The volume of fluids emptied in barrels.
(4) Identification of each storage vessel that is removed from service or returned to service as specified in § 49.4173(b)(3), including the date the storage vessel was removed from service or returned to service.
(5) For storage vessels that are skid-mounted or permanently attached to something that is mobile (such as trucks, railcars, barges or ships), records indicating the number of consecutive days that the vessel is located at an oil and natural gas source. If a storage vessel is removed from an oil and natural gas source and, within 30 days, is either returned to the source or replaced by another storage vessel at the source to serve the same or similar function, then the entire period since the original storage vessel was first located at the source, including the days when the storage vessel was removed, must be added to the count of the number of consecutive days.
(6) For each enclosed combustor or flare at an oil and natural gas source required under §§ 49.4173 through 49.4177:
(i) Manufacturer-written, site-specific designs, operating instructions, operating procedures and maintenance schedules, including those of any operation monitoring systems;
(ii) Date of installation;
(iii) Records of required monitoring of operations in § 49.4182(d)(1);
(iv) Records of any instances in which the pilot flame is not present or the monitoring equipment is not functioning in the enclosed combustor or flare, the date and times of the occurrence, the corrective actions taken, and any preventative measures adopted to prevent recurrence of the occurrence; and
(v) Records of any visible emissions tests conducted according to § 49.4182(d)(3), including any time periods in which visible smoke emissions are observed emanating from the enclosed combustor or flare.
(7) For each closed-vent system:
(i) The date of installation; and
(ii) Records of any instances in which any closed-vent system or control device was bypassed or down, the reason for each incident, its duration, and the corrective actions taken, and any preventative measures adopted to avoid such bypasses or downtimes.
(8) Documentation of all storage vessel and closed-vent system inspections required in § 49.4182(c). All inspection records must include the following information:
(i) The date of the inspection;
(ii) The findings of the inspection;
(iii) Any adjustments or repairs made as a result of the inspection, and the date of the adjustment or repair; and
(iv) The inspector's name or identification number;
(9) The Uinta Basin-wide fugitive emissions monitoring plan for the Indian country lands within the U&O Reservation, including all elements required by § 49.4178(d).
(10) Documentation of each fugitive emissions inspection conducted in accordance with § 49.4178(d). All inspection records must include the following information:
(i) The date of the inspection;
(ii) The identification of any component that was determined to be leaking;
(iii) The identification of any component designated difficult-to-monitor or unsafe-to-monitor that was not inspected, and the reason it was not inspected;
(iv) The date of the first attempt to repair the leaking component;
(v) The identification of any leaking component with a delayed repair and the reason for the delayed repair:
(A) For unavailable parts:
(
(
(B) For a shutdown:
(
(
(
(
(vi) The date and description of any corrective action taken, including the date the component was verified to no longer be leaking;
(vii) The identification of each component exempt under § 49.4178(d)(2), including the type of component and a description of the qualifying exemption; and
(viii) The inspector's name or identification number.
(11) For each well site complying with either § 49.4178(b)(2) or § 49.4178(c)(2), you must maintain records of the rolling 12-month average daily production no later than 12 months before complying with § 49.4178(b)(2) or § 49.4178(c)(2).
(12) For each electronically controlled automatic ignition system required under § 49.4181, records demonstrating the date of installation and manufacturer specifications; and
(13) For each retrofitted pneumatic controller, the records required in 40 CFR 60.5420(c)(4)(i).
(b) Each owner or operator must keep all records required by this section onsite at the source or at the location that has day-to-day operational control over the source and must make the records available to the EPA upon request.
(c) Each owner or operator must retain all records required by this section for a period of at least 5 years from the date the record was created.
(a) Unless otherwise specified, each owner or operator must submit any documents required under this rule to: U.S. EPA Region 8, Enforcement and Compliance Assurance Division, Air and Toxics Enforcement Branch, 8ENF-AT, 1595 Wynkoop St., Denver, CO 80202, or documents may be submitted electronically to
(b) Each owner and operator of an affected oil and natural gas source as identified in § 49.4169(b) must submit an annual report containing the information specified in paragraphs (b)(1) through (3) of this section, as applicable. The annual report must cover affected operations for the previous calendar year. The initial annual report is due April 1st of the calendar year following February 6, 2023 and must cover all affected operations for the previous calendar year on and after February 6, 2023. Subsequent annual reports are due on the same date each year as the date the initial annual report was submitted. If you own or operate more than one oil and natural gas source, you may submit one report for multiple oil and natural gas sources, provided the report contains all of the information required as specified in paragraphs (b)(1) through (3) of this section. Annual reports may coincide with title V, NSPS OOOO or OOOOa, or NESHAP HH reports as long as all the required elements of the annual report are included. An alternative schedule on which the annual report must be submitted will be allowed as long as the schedule does not extend the reporting period. The annual report must include:
(1) The owner or operator name, and the name and location (decimal degree latitude and longitude location indicating the datum used in parentheses) of each oil and natural gas source being included in the annual report.
(2) The beginning and ending dates of the reporting period.
(3) For each oil and natural gas source, a summary of the required records specified in § 49.4183 that are identified in paragraphs (b)(3)(i) through (iv) of this section as they relate to the source's compliance with the requirements of §§ 49.4173 through 49.4183.
(i) For each enclosed combustor or flare at an oil and natural gas source required under §§ 49.4173 through 49.4177:
(A) Records of any instances in which the pilot flame is not present or the monitoring equipment is not functioning, the date and times of the occurrence, the corrective actions taken, and any preventative measures adopted to prevent recurrence of the occurrence; and
(B) Records of any time periods in which visible smoke emissions are observed emanating from the enclosed combustor or flare.
(ii) For each closed-vent system:
(A) Records of any instances in which any closed-vent system or control device was bypassed or down, the reason for each incident, its duration, the corrective actions taken, and any preventative measures adopted to avoid such bypasses or downtimes; and
(B) Records of any instances of defects identified during the monthly inspection required in § 49.4182(c), including:
(
(
(
(iii) For Fugitive Emissions Monitoring, records documenting each fugitive emissions inspection, including:
(A) The date of the inspection;
(B) Identification of any component that was determined to be leaking;
(C) Identification of any component designated difficult-to-monitor or unsafe-to-monitor that was not inspected and the reason it was not inspected;
(D) The date of repair of each leaking component;
(E) Identification of any leaking component with a delayed repair, the reason for the delayed repair and the emission estimates associated with any shutdown and repair if the delay is longer than 6 months;
(F) The date and description of any corrective action taken, including the date the component was verified to no longer be leaking;
(G) The inspector's name or identification number;
(H) For each well site complying with § 49.4178(c)(2), you must specify that the well site is exempt from the requirements of § 49.4178(d) and submit the average daily production for the well site; and
(iv) For each pneumatic controller with a natural gas bleed rate greater than the applicable standard, records of the reason for the use of the controller.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking; notification of proposed determination and announcement of public meeting.
The Energy Policy and Conservation Act, as amended (EPCA), prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including single package vertical air conditioners (SPVACs) and single package vertical heat pumps (SPVHPs), collectively referred to as single package vertical units (SPVUs). EPCA also requires the U.S. Department of Energy (DOE) to periodically review standards. In this notice of proposed rulemaking (NOPR); notification of proposed determination (NOPD), DOE proposes to amend the current energy conservation standards for SPVUs such that the existing standard levels would be based on a new cooling efficiency metric of Integrated Energy Efficiency Ratio (IEER) for SPVACs and SPVHPs, and the current heating efficiency metric of Coefficient of Performance (COP) for SPVHPs (but without any increase in stringency), In addition, DOE has initially determined that more-stringent standards for SPVUs would not be economically justified and would not result in a significant conservation of energy. DOE also announces a public meeting to receive comment on these proposed standards and associated analyses and results.
Comments regarding the likely competitive impact of the proposed standard should be sent to the Department of Justice contact listed in the
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
No telefacsimiles (faxes) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section VIII of this document (Public Participation).
The docket web page can be found at:
EPCA requires the U.S. Attorney General to provide DOE a written determination of whether the proposed standard is likely to lessen competition. The U.S. Department of Justice (DOJ) Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the proposed standard. Interested persons may contact the Antitrust Division at
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. Eric Stas, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC, 20585-0121. Telephone: (202) 586-5827. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting webinar, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
The Energy Policy and Conservation Act,
Pursuant to EPCA, DOE must consider amending the Federal energy efficiency standards for certain types of commercial and industrial equipment, including the equipment at issue in this document, whenever the Department is triggered by the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) acting to amend the standard levels or design requirements prescribed in ASHRAE Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings,” (ASHRAE Standard 90.1). (42 U.S.C. 6313(a)(6)(A)-(B)) In addition, EPCA contains an independent review requirement for this same equipment (the 6-year-lookback review), which requires DOE to consider the need for amended standards every six years. To adopt standard levels more stringent than those contained in ASHRAE Standard 90.1, DOE must have clear and convincing evidence to show that such standards would be technologically feasible and economically justified and would save a significant additional amount of energy. (42 U.S.C. 6313(a)(6)(C)) DOE is conducting this proposed rulemaking under EPCA's 6-year-lookback review authority.
The current Federal energy conservation standards for SPVUs are set forth at title 10 of the Code of Federal Regulations (CFR), 10 CFR 431.97(d) and, as specified in 10 CFR 431.96, those standards are denominated in terms of the cooling efficiency metric, Energy Efficiency Ratio (EER) and the heating efficiency metric, Coefficient of Performance (COP), and based on the rating conditions in American National Standards Institute (ANSI)/Air-Conditioning, Heating, and Refrigeration Institute (AHRI) Standard 390-2003, “Performance Rating of Single Package Vertical Air-Conditioners and Heat Pumps” (ANSI/AHRI 390-2003). ASHRAE Standard 90.1-2019 references this same industry test standard.
On June 24, 2021, AHRI published AHRI Standard 390-2021, “Performance Rating of Single Package Vertical Air-Conditioners and Heat Pumps” (AHRI 390-2021), which supersedes ANSI/AHRI 390-2003. AHRI 390-2021, which was developed as part of an industry consensus process, includes revisions that DOE determined improve the representativeness, repeatability, and reproducibility of the test methods. Among other things, AHRI 390-2021 maintains the existing efficiency metrics—EER for cooling mode and COP for heating mode—but it also added a seasonal efficiency metric that includes part-load cooling performance—the Integrated Energy Efficiency Ratio (IEER). In November 2022, DOE issued a Test Procedure Final Rule for SPVUs that amended the test procedures for SPVUs to incorporate by reference AHRI 390-2021. As discussed in section III.C of this document, DOE has determined that the IEER metric is more representative of the cooling efficiency for SPVUs on an annual basis than the current EER metric. As a result, DOE is proposing to amend the standards for SPVUs to be based on the seasonal cooling metric, IEER, and the existing heating metric, COP. As discussed in section IV of this document, DOE conducted a crosswalk analysis to develop IEER levels that are of equivalent stringency to the current EER standard levels.
To satisfy its review obligations under EPCA's 6-year-lookback provision, DOE analyzed the technological feasibility of more energy-efficient SPVUs. For those SPVUs for which DOE determined higher standards to be technologically feasible, DOE evaluated whether higher standards would be economically justified by conducting life-cycle cost (LCC) and payback period (PBP)
Based on the results of the analyses conducted, summarized in section VI of this document, DOE has tentatively determined that it lacks clear and convincing evidence that amended standards for SPVUs, in terms of IEER and COP, that are more stringent than the current standards for SPVUs would be economically justified. The clear and convincing threshold is a heightened standard and would only be met where the Secretary has an abiding conviction, based on available facts, data, and DOE's own analyses, that it is highly probable an amended standard would result in a significant additional amount of energy savings, and is technologically feasible and economically justified.
In this NOPR/NOPD, DOE is proposing to adopt standards based on IEER and COP that are of equivalent stringency as the current DOE energy conservation standard levels and the current standard levels specified in ASHRAE Standard 90.1-2019. The proposed standards are presented in Table I-1. These proposed standards, if adopted, would apply to all SPVUs listed in Table I-1 manufactured in, or imported into, the United States starting on the tentative compliance date of 360 days after the publication in the
The following section briefly discusses the statutory authority underlying this proposal, as well as some of the relevant historical background related to the establishment of energy conservation standards for SPVUs.
EPCA, Pub. L. 94-163, as amended, among other things, 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, title IV, section 441(a), (42 U.S.C. 6311-6317, as codified), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes SPVUs, which are a category of small, large, and very large commercial package air conditioning and heating equipment and the subject of this document. (42 U.S.C. 6311(1)(B)-(D); 42 U.S.C. 6313(a)(10)) EPCA prescribed initial standards for these products. (42 U.S.C. 6313(a)(1)-(2)) Congress updated the standards for SPVUs through amendments to EPCA contained in the Energy Independence and Security Act of 2007 (EISA 2007), Public Law 110-140 (Dec. 19, 2007). (42 U.S.C. 6313(a)(10)) Additionally, DOE is triggered to consider amending the energy conservation 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 independent of that requirement, a separate provision of EPCA requires DOE to consider amended standards for that equipment at a minimum, every six years. (42 U.S.C. 6313(a)(6)(A)-(C))
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 include definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C. 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316; 42 U.S.C. 6296).
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. (42 U.S.C. 6316(b)(2)(D))
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE is required to 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 and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) 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. The DOE test procedures for SPVUs appear at 10 CFR part 431, subpart F, appendices G and G1.
ASHRAE Standard 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 referred to as
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 equipment subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered equipment in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered equipment that are likely to result from the standard;
(3) The total projected amount of energy savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered equipment likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy conservation; and
(7) Other factors the Secretary of Energy considers relevant.
(42 U.S.C. 6313(a)(6)(B)(ii)(I)-(VII))
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. 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)).
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. 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))
In a final rule published in the
ASHRAE Standard 90.1 has been updated on several occasions since the 2013 version, the most recently being released on October 24, 2019 (
On April 24, 2020, DOE published in the
A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record.
The following provides an overview of the public comments received on the April 2020 RFI. In general, AHRI recommended that DOE not amend the current minimum energy conservation standards for SPVUs. The commenter stated that DOE should wait until the revised edition of the industry test procedure for SPVUs has published and has been referenced in ASHRAE Standard 90.1. AHRI added that a crosswalk should be developed by testing and calculation using current baseline-efficiency SPVU equipment to establish the energy conservation standards using the new metric. (AHRI, No. 9 at p. 6)
The CA IOUs recommended DOE investigate increasing the baseline efficiency levels for SPVUs in conjunction with establishing standards and test procedures that incorporate part-load performance. Based on their analysis of DOE's Compliance Certification Database (CCD), the CA IOUs noted that over 70 percent of products in each SPVU equipment class are at the minimum efficiency level, but many products have varied features and compressor configurations that are likely to translate into differences in part-load performance. Based on this, the CA IOUs encouraged DOE to consider shifting to a more-stringent, full-load metric. (CA IOUs, No. 10 at p. 2)
ASAP and ACEEE commented that greater energy savings are possible than those evaluated for the September 2015 Final Rule. ASAP and ACEEE argued that the most-efficient SPVU models currently available have either Energy Efficiency Ratio (EER) or COP ratings that are higher than the max-tech levels considered in the September 2015 Final Rule. (ASAP/ACEEE, No. 11 at pp. 1-2)
As discussed in section III.C of this document, DOE has amended its test procedures for SPVUs to incorporate by reference the updated industry test procedure, AHRI Standard 390-2021, “Performance Rating of Single Package Vertical Air-Conditioners and Heat Pumps” (AHRI 390-2021), which includes the existing efficiency metrics—EER for cooling mode and COP for heating mode—but it also adds a cooling-mode seasonal metric that includes part-load cooling performance—the IEER metric. Accordingly, DOE is proposing to amend the energy conservation standards for SPVUs to be based on the seasonal cooling metric, IEER, and the existing heating metric, COP. As discussed in section IV of this document, DOE conducted a crosswalk analysis in collaboration with AHRI and SPVU manufacturers to translate the current SPVU standard levels based on EER to the new metric, IEER, to establish baseline efficiency levels for the current analysis considering the potential for more-stringent SPVU standard levels.
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 NOPR/NOPD stages for an energy conservation standards rulemaking.
Section 8(d)(1) of appendix A states that the Department will finalize amended test procedures 180 days prior to the close of the comment period of a NOPR proposing new or amended standards or a notice of proposed determination that standards do not need to be amended. For the reasons that follow, DOE finds it necessary and appropriate to deviate from this step in appendix A by publishing this NOPR/NOPD such that the comment period will end before 180 days has elapsed from the publication of the test procedure final rule. As discussed in a final rule pertaining to Procedures, Interpretations, and Policies for Consideration in New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Commercial/Industrial Equipment, the 180-day period may not always be necessary. As an example, DOE noted
DOE developed this proposal 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.
EPCA, as amended by the EISA 2007 defines “single package vertical air conditioner” and “single package vertical heat pump” at 42 U.S.C. 6311(22) and (23), respectively. In particular, single package vertical air conditioners can be single- or three-phase; must have major components arranged vertically; must be an encased combination of components; and must be intended for exterior mounting on, adjacent interior to, or through an outside wall. Single package vertical heat pumps are single package vertical air conditioners that use reverse cycle refrigeration as their primary heat source and may include secondary supplemental heating by means of electrical resistance, steam, hot water, or gas. DOE codified the statutory definitions into its regulations at 10 CFR 431.92. Additionally, EPCA established initial equipment classes and energy conservation standards for SPVUs based on cooling capacity, and for those SPVUs with a capacity less than 65,000 Btu/h, also based on phase. (42 U.S.C. 6313(a)(10)(A)(i)-(ii) and (v)-(vi))
DOE defines an SPVAC as air-cooled commercial package air conditioning and heating equipment that: (1) is factory-assembled as a single package that: (i) has major components that are arranged vertically; (ii) is an encased combination of cooling and optional heating components; and (iii) is intended for exterior mounting on, adjacent interior to, or through an outside wall; (2) is powered by a single-phase or three-phase current; (3) may contain one or more separate indoor grilles, outdoor louvers, various ventilation options, indoor free air discharges, ductwork, well plenum, or sleeves; and (4) has heating components that may include electrical resistance, steam, hot water, or gas, but may not include reverse cycle refrigeration as a heating means. 10 CFR 431.92. Additionally, DOE defines an SPVHP as a single package vertical air conditioner that: (1) uses reverse cycle refrigeration as its primary heat source; and (2) may include secondary supplemental heating by means of electrical resistance, steam, hot water, or gas.
As part of the April 2020 RFI, DOE requested commented on whether the definitions for SPVUs should be revised. 80 FR 22958, 22961 (April 24, 2020). On that topic, AHRI commented that the definitions of SPVAC and SPVHP generally remain appropriate and did not suggest any modifications. (AHRI, No. 9 at p. 3)
As part of the most recent energy conservation standards rulemaking for SPVUs, DOE published a notice of data availability in the
In November 2022, DOE issued a final rule to amend the test procedure for SPVUs (the November 2022 Test Procedure Final Rule).
EISA 2007, Public Law 110-140, amended EPCA in relevant part by establishing equipment classes and minimum energy conservation standards for SPVUs. (42 U.S.C. 6313(a)(10)(A)) In doing so, the EISA 2007 amendments established Federal energy conservation standards for SPVUs at levels that generally corresponded to the levels in the 2004 edition of the American Society of Heating, Refrigerating and Air-
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 equipment complies with energy conservation standards and to quantify the efficiency of their equipment. DOE's current energy conservation standards for SPVUs are expressed in terms of the full-load cooling metric, EER, and the heating metric, COP. (
ASHRAE 90.1-2019 references, as the test procedure for SPVUs, ANSI/AHRI 390-2003, which does not include a seasonal efficiency metric for cooling mode. At the time of the April 2020 RFI, DOE's test procedure for SPVUs also incorporated by reference ANSI/AHRI 390-2003, omitting section 6.4. Hence, DOE's test procedure for SPVUs at that time likewise did not include a seasonal metric that accounted for part-load performance.
In response to the April 2020 RFI, NEEA, the CA IOUs, and ASAP/ACEEE commented that the existing SPVUs test procedure using the full-load EER metric does not account for the energy savings from variable-speed fans, multi-stage compressors, electronic expansion valves, and other technologies, and that there would likely be significant energy savings potential if a part-load metric were to be used. (NEEA, No. 6 at p. 2; CA IOUs, No. 10 at p. 1; ASAP/ACEEE, No. 11 at pp. 1, 2) NEEA and the CA IOUs commented that nearly 25 percent of units in the AHRI Directory of Certified Product Performance are rated with the integrated part-load value (IPLV) metric (in addition to EER), which considers part-load efficiency. (NEEA, No. 6 at pp. 2-3; CA IOUs, No. 10 at pp. 1-2) NEEA commented that there is a significant range in IPLV values for units available on the market (from approximately 13.5 to 17 IPLV), whereas EER only ranges from 11 to 12.5, with most units at the minimum of 11 EER. (NEEA, No. 6 at pp. 2-3) NEEA, the CA IOUs, and ASAP/ACEEE recommended that DOE should amend the test procedure for SPVUs to consider part-load performance so as to better represent performance during an average use cycle. (NEEA, No. 6 at p. 3; CA IOUs, No. 10 at p. 2; ASAP/ACEEE, No. 11 at p. 1)
The CA IOUs added that while part-load performance is key to representing an average use cycle, full-load performance is critical for enabling utilities to effectively manage grid services. The CA IOUs expressed support for a regulatory model in which both full-load EER and part-load efficiency are published in the AHRI database. (CA IOUs, No. 10 at p. 2)
AHRI and GE commented at the time of the April 2020 RFI that the industry, in collaboration with DOE, was in the process of finalizing a revised test procedure for SPVUs that adopts a seasonal cooling mode metric, IEER. (AHRI, No. 9 at p. 2; GE, No. 7 at p. 2) AHRI stated that any proposal to change the SPVU efficiency metric should be developed through the ASHRAE Standard 90.1 process. (AHRI, No. 9 at p. 2; GE, No. 7 at p. 2)
In response to these comments, DOE notes that as part of the November 2022 Test Procedure Final Rule, the Department amended its test procedure for SPVUs to incorporate by reference AHRI 390-2021, the latest version of the relevant industry standard. Among other things, AHRI 390-2021 maintains the existing efficiency metrics—EER for cooling mode and COP for heating mode—but it also added a seasonal metric that includes part-load cooling performance—the IEER metric. As part of the November 2022 Test Procedure Final Rule, DOE added a new appendix G1 at 10 CFR part 431, subpart F, that includes the relevant test procedure requirements for SPVUs for measuring with updated cooling efficiency metric, IEER, and heating efficiency metric, COP. The relevant test procedure requirements for SPVUs for measuring the existing efficiency metrics, EER and COP were included in appendix G at 10 CFR part 431, subpart F. Beginning 360 days on or after the date of publication of the test procedure final rule in the
DOE notes that SPVUs often operate at part-load (
DOE notes that the IPLV metric specified in AHRI 390-2003 integrates unit performance at each capacity step provided by the refrigeration system. However, the IPLV tests at each capacity step are all conducted at constant outdoor air conditions of 80 °F dry-bulb temperature and 67 °F wet-bulb temperature. As discussed, the IEER metric was developed considering climate data to reflect the outdoor temperatures representative of different load levels. As a result, DOE considers the IEER metric specified in AHRI 390-2021 to be more representative of annual energy use than the IPLV metric specified in AHRI 390-2003. DOE has determined, by clear and convincing evidence, that AHRI 390-2021 is more representative on annual energy use than AHRI 390-2003. As discussed, SPVUs often operate at part-load conditions. DOE notes that the IPLV metric specified in AHRI 390-2003 integrates unit performance at each capacity step provided by the refrigeration system. However, the IPLV tests at each capacity step are all conducted at constant outdoor air conditions of 80 °F dry-bulb temperature and 67 °F wet-bulb temperature. As discussed, the IEER metric was developed considering climate data to reflect the outdoor temperatures representative of different load levels. As a result, DOE considers the IEER metric specified in AHRI 390-2021 to be more representative of annual energy use than the IPLV metric specified in AHRI 390-2003.
NEEA and ASAP/ACEEE commented that DOE should also amend the test procedure for SPVUs to fully account for embedded fan energy use and revise the external static pressure requirements to accurately reflect field conditions. (NEEA, No. 6 at p. 1; ASAP/ACEEE, No. 11 at p. 1) ASAP/ACEEE also commented that DOE should incorporate defrost and reflect heating performance at lower ambient temperatures in the heating efficiency metric. (ASAP/ACEEE, No. 11 at pp. 1, 2) DOE has addressed all of these comments related to test procedure issues in the November 2022 Test Procedure Final Rule.
In the November 2022 Test Procedure Final Rule, DOE determined that it does not have sufficient information regarding the operation of fans outside of mechanical cooling and heating modes (
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 products or in working prototypes to be technologically feasible.
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.
When DOE proposes to adopt an amended energy conservation standard for a type or class of covered equipment
In determining whether standards for the subject equipment should be amended, DOE would typically determine whether such standards would result in significant additional conservation of energy, as required by 42 U.S.C. 6313(a)(6)(A)(ii)(II) and 42 U.S.C. 6313(a)(6)(C)(i). However, as discussed in section VI of this document, DOE has tentatively determined that amended standards for the subject equipment would not be economically justified. Because clear and convincing evidence of economic justification is necessary to adopt more-stringent standards for the subject equipment, DOE has tentatively concluded that quantification of energy savings from potential amended standards is not necessary in the case of this proposed rulemaking.
As noted, EPCA provides seven factors to be evaluated in determining whether a potential amended energy conservation standard is economically justified. (42 U.S.C. 6313(a)(6)(B)(ii)(I)-(VII)) The following sections discuss how DOE has addressed each of those seven factors in this NOPR/NOPD.
For individual consumers, DOE measures the economic impact by calculating the changes in LCC and PBP associated with new or amended energy conservation standards for the equipment in question. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national net present value (NPV) 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. However, DOE's analysis showed negative LCC savings for SPVUs for nearly all efficiency levels, and, therefore, DOE is not proposing to amend standards for SPVUs, because the Department anticipates that it would not have the clear and convincing evidence to support amended standards more stringent that those set forth in ASHRAE Standard 90.1. Accordingly, DOE did not conduct a consumer subgroup analysis or a national impact analysis for this NOPR/NOPD.
In determining the impacts of a potential standard on manufacturers, DOE typically conducts a manufacturer impact analysis (MIA). However, because DOE is tentatively unable to determine via clear and convincing evidence that a more-stringent standard level would result in significant additional conservation of energy and is technologically feasible and economically justified, DOE decided not to conduct an MIA. Nonetheless, DOE did examine the potential impacts of amended energy conservation standards for SPVUs on small manufacturers in its Regulatory Flexibility Act analysis, which is presented in section VII.B of this NOPR/NOPD. The following section discusses additional comments received from the April 2020 RFI regarding manufacturer impacts and cumulative regulatory burden.
In response to the April 2020 RFI, AHRI, Lennox, and GE urged DOE to consider the cumulative regulatory burden for heating, ventilation, air conditioning, and refrigeration (HVACR) manufacturers. (AHRI, No. 9 at p. 2; GE, No. 7 at p. 3; Lennox, No. 8 at p. 2) AHRI, Lennox, and GE argued that requirements for new low-GWP refrigerants will have a significant impact on the HVAC industry, and these commenters stated that in certain States, these requirements will take effect prior to the compliance date of any amended standards that would be adopted by DOE in the course of this proposed rulemaking. (AHRI, No. 9 at p. 5; GE, No. 7 at p. 3; Lennox, No. 8 at p. 2) AHRI stated that because nearly all of these new refrigerants have been designated flammable (A2L), all new safety standards have been developed that address the application of these new flammable refrigerants and subsequent leak mitigation. (AHRI, No. 9 at p. 5) AHRI stated that DOE's analysis should account for the challenge that manufacturers will face due to the need to develop, test, and certify two product lines for models with current refrigerants and new, A2L refrigerants. (
In addition to the cumulative burden concerns noted with refrigerants, AHRI stated that the industry is preparing for additional new efficiency metrics and standard levels for residential central air conditioners and heat pumps; small, large, and very large commercial package air conditioners and heat pump; and air-cooled, water-cooled, evaporatively-cooled; water-source unitary air conditioners and heat pumps; and variable refrigerant flow equipment. (AHRI, No. 9 at p. 2)
DOE notes that a full consideration of more-stringent levels, if undertaken, would assess manufacturer impacts, including cumulative burden. However, in the absence of proposing more-stringent standards, DOE has tentatively determined that the proposals set forth in this NOPR/NOPD would not be unduly burdensome to manufacturers.
For a more complete discussion of consumer impacts, see chapter 8 of the NOPR/NOPD TSD.
EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered equipment in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered equipment that are likely to result from a standard. (42 U.S.C. 6313(a)(6)(B)(ii)(II)) DOE conducts this comparison in its LCC and PBP analysis.
The LCC is the sum of the purchase price of a product (including its installation) and the operating expense (including energy, maintenance, and repair expenditures) discounted over the lifetime of the product. The LCC analysis requires a variety of inputs, such as equipment prices (which includes manufacturer selling price, distribution channel markups, and sales tax), equipment energy consumption,
The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of more-efficient equipment through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more-stringent energy conservation standard by the change in annual operating cost for the year that such standards are assumed to take effect.
For its LCC and PBP analysis, DOE assumes that consumers will purchase the covered equipment in the first year of compliance with new or amended energy conservation 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's LCC and PBP analysis is discussed in further detail in section V.F. of this document.
For a more complete discussion of the LCC and PBP analysis, see chapter 8 of the NOPR/NOPD TSD.
Although significant additional 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 quantity of energy savings that are expected to result directly from the standard. (42 U.S.C. 6313(a)(6)(B)(ii)(III)) DOE is not proposing amended standards for SPVUs due to the negative LCC savings at nearly all efficiency levels, so, therefore, DOE did not project the total energy savings from higher efficiency levels.
In evaluating design options and the impact of potential standard levels, DOE evaluates potential amended energy conservation standards that would not lessen the utility or performance of the subject equipment. (42 U.S.C. 6313(a)(6)(B)(ii)(IV)) Because DOE is not proposing amended standards for SPVUs, the Department has tentatively concluded that this NOPR/NOPD would not impact the utility or performance of such 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 proposed standard. (42 U.S.C. 6313(a)(6)(B)(ii)(V)) Because DOE is not proposing standards for SPVUs more stringent than the current Federal standards for that equipment, DOE did not transmit a copy of its proposed determination to the Attorney General for anti-competitive review.
DOE also considers the need for national energy conservation in determining whether a new or amended standard is economically justified. (42 U.S.C. 6313(a)(6)(B)(ii)(VI)) Typically, energy savings from proposed standards would be likely to provide improvements to the security and reliability of the Nation's energy system, and reductions in the demand for electricity also may result in reduced costs for maintaining the reliability of the Nation's electricity system. DOE conducts a utility impact analysis to estimate how potential standards may affect the Nation's needed power generation capacity. However, because DOE is not proposing amended standards for SPVUs that increase stringency beyond the current Federal standard levels, the Department did not conduct this analysis for the present rulemaking.
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. Typically, proposed standards would be 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. Therefore, DOE routinely conducts an emissions analysis to estimate how potential standards might affect these emissions. DOE also estimates the economic value of emissions reductions resulting from the considered TSLs (
In determining whether a potential energy conservation standard is economically justified, DOE may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6313(a)(6)(B)(ii)(VII)) To the extent DOE identifies any relevant information regarding economic justification that does not fit into the other categories described previously, DOE could consider such information under “other factors.” DOE did not identify any other factors in this NOPR/NOPD.
As discussed in section II.B.1 of this document, DOE's current energy conservation standards for SPVUs are based on the full-load cooling efficiency metric, EER, and the heating efficiency metric, COP. As further discussed in section III.C of this document, DOE has amended the Federal test procedures for SPVUs to incorporate by reference AHRI 390-2021, including the seasonal cooling efficiency metric, IEER. Accordingly, DOE is proposing to amend the energy conservation standards for SPVUs to rely on the IEER metric for cooling efficiency (while retaining the COP metric for determining the heating efficiency of SPVHPs). As explained in section III.C of this document, DOE has tentatively determined that the IEER metric is representative of the cooling efficiency for SPVUs in terms of both an average use cycle and also on an annual basis, and that it is more representative than the current EER metric.
EPCA provides that in the case of any amended test procedure for covered ASHRAE equipment for which there is clear and convincing evidence to support deviation from the test procedure for such equipment referenced in ASHRAE Standard 90.1, DOE must determine, to what extent, if any, the proposed test procedure would alter the measured energy efficiency, measured energy use, or measured water use of the subject ASHRAE equipment as determined under the existing test procedure. (
Pursuant
Collectively, the AHRI 390 Task Force conducted testing on 17 SPVUs with <65,000 Btu/h cooling capacity and 2 SPVUs with ≥65,000 Btu/h cooling capacity to measure the percentage change in efficiency between EER and IEER for each unit.
Based on these test results, DOE is proposing baseline IEER levels that are 13.4 percent higher than current EER standard levels for SPVUs <65,000 Btu/h cooling capacity and 2.6 percent higher than the current EER standard levels for SPVUs ≥65,000 and <135,000 Btu/h cooling capacity. For SPVUs ≥135,000 and <240,000 Btu/h cooling capacity, DOE noted that there were only eight basic models currently available on the market. Based on review of product literature, all of these larger SPVU models operated with multiple compressor stages and staged airflow. The testing conducted as part of the AHRI 390 Task Force included only single stage units and, therefore, is not representative of the baseline IEER levels for these larger SPVU units currently available on the market. Consequently, in order to determine an appropriate baseline IEER level for these larger SPVU equipment classes, DOE applied the crosswalk of 2.6 percent, then applied the percent improvement in IEER associated with moving from single-stage compressor and airflow to multiple compressor stages and stage airflow, consistent with the improvement used for SPVUs <135,000 Btu/h cooling capacity (
The proposed baseline efficiency levels for each equipment class, denominated in terms of IEER and COP (where appliable), are presented in Table IV-2. The methodology and results of the crosswalk analysis are presented in detail in the chapter 5 of the NOPR/NOPD TSD.
This section addresses the analyses DOE has performed for this proposed rulemaking with regard to SPVUs. Separate subsections address each component of DOE's analyses.
DOE used Python
DOE develops information in the market and technology assessment that provides an overall picture of the market for the equipment concerned, including the purpose of the equipment, the industry structure, manufacturers, market characteristics, and technologies used in the equipment. This activity includes both quantitative and qualitative assessments, based primarily on publicly-available information. The subjects addressed in the market and technology assessment for this rulemaking include: (1) a determination of the scope of the rulemaking and product classes; (2) manufacturers and industry structure; (3) existing efficiency programs; (4) shipments information; (5) market and industry trends; and (6) technologies or design options that could improve the energy efficiency of SPVUs. The key findings of DOE's market assessment are summarized in the following sections. See chapter 3 of the NOPR/NOPD TSD for further discussion of the market and technology assessment.
As discussed in section III.B of this document, the current energy conservation standards for SPVUs specified in 10 CFR 431.97 are based on six equipment classes determined by: (1) cooling capacity and (2) whether the equipment is an air conditioner or a heat pump.
In response to the April 2020 RFI, AHRI commented that it does not recommend any changes to the existing equipment classes. (AHRI, No. 9 at p. 3) DOE did not identify any performance-related features that would justify creating a new equipment class for SPVUs. Accordingly, DOE is proposing to maintain the existing equipment classes in this NOPR/NOPD.
In the April 2020 RFI, DOE requested comment on the availability of units on the market in the following equipment classes: SPVHP ≥65,000 Btu/h and <135,000 Btu/h, SPVAC ≥135,000 Btu/h and <240,000 Btu/h, and SPVHP ≥135,000 Btu/h and <240,000 Btu/h. 85 FR 22958, 22962 (April 24, 2020). At the time AHRI commented, that organization stated that the largest SPVHP in the AHRI Directory is 60,000 Btu/h and that the largest SPVAC is 146,000 Btu/h. (AHRI, No. 9 at p. 4) DOE conducted a more recent review of DOE's Compliance Certification Database,
In the technology assessment, DOE identifies technology options and prototype designs that appear to be feasible mechanisms for improving equipment efficiency. This assessment provides the technical background and structure on which DOE bases its screening and engineering analyses.
In the April 2020 RFI, DOE presented a preliminary list of technology options primarily based on the technologies identified in the most recent rulemaking for SPVUs (
In response to the April 2020 RFI, AHRI and GE commented that since the last rulemaking, there are no new technology developments for SPVUs that are commercially available or that are not already accounted for in the existing EER metric. (AHRI, No. 9 at p. 4; GE, No. 7 at p. 2) AHRI added that all of the technology options presented in the April 2020 RFI (now listed in Table V-3), with the exception of increased coil size, are incorporated in minimum-efficiency equipment and would not increase SPVU efficiencies beyond the current levels. (AHRI, No. 9 at p. 7)
AHRI commented that in many replacement applications, the physical size of the replacement equipment cabinet is constrained by the original equipment size, particularly for classroom applications. (AHRI, No. 9 at p. 4) According to AHRI, cabinets project out into the room and are typically installed under windows, and as a result, the dimensions are limited in height by the window, in depth by the allowable projection into the floor space, and in length by the footprint of the original cabinet. (AHRI, No. 9 at p. 4) Therefore, AHRI commented that increasing heat exchanger size significantly is not possible in these cases and that appropriate boundaries must be established when considering increasing component sizes in the analysis, considering ASHRAE Standard 90.1's definition for non-weatherized space-constrained SPVU. (AHRI, No. 9 at pp. 4-5) AHRI added that SPVU manufacturers also need to be cognizant of product noise levels, particularly for classroom settings. AHRI stated that some SPVUs are installed within a cabinet in the room, which typically have sound limits, so all individual components and the combination of components in the final product are considered very carefully to achieve a quiet product. (AHRI, No. 9 at p. 8)
AHRI noted that SPVU manufacturers face limitations in terms of available compressor options; scroll compressors are not available below 17,000 Btu/h, so rotary compressors are employed. (AHRI, No. 9 at p. 8)
As discussed in section V.C.1 of this document, DOE conducted testing and physical teardowns on a sample of currently available SPVUs using the amended SPVU test procedure and based on the seasonal IEER metric. DOE supplemented this approach with a review of product literature for currently available models. Through such efforts, DOE identified technology options that are used in higher-efficiency equipment. Based on this review, DOE believes that the technology options identified for this NOPR/NOPD, as presented subsequently in Table V-5, are consistent with existing equipment on the market (
In the April 2020 RFI, DOE also noted that it did not consider improved fin design, improved tube design, and hydrophilic coating on fins in the engineering analysis for the previous rulemaking because they were commonly found in most baseline and higher-efficiency SPVUs. 85 FR 22958, 22963 (April 24, 2020). AHRI commented that SPVU manufacturers use the best commercially-available fin and tube designs in both baseline and higher-efficiency SPVUs. AHRI stated that hydrophilic film coating on fins are not used in SPVUs due to concern about degradation over time. (AHRI, No. 9 at p. 6) DOE maintains that improved fin and tube design are incorporated into baseline SPVUs and, as a result, DOE did not consider these as technology options in this NOPR/NOPD. DOE is unaware of publicly-available data quantifying the impact of hydrophilic film coating on fins or whether this is used in commercially-available equipment. As a result, DOE did not consider hydrophilic film coating as a technology option in this NOPR/NOPD.
As discussed in the April 2020 RFI, DOE did not evaluate microchannel heat exchangers for the September 2015 Final Rule engineering analysis because there was insufficient information regarding improvements to the overall system's energy efficiency. 85 FR 22958, 22962 (April 24, 2020); 80 FR 57438, 57455 (Sept. 23, 2015). On this topic, AHRI and GE agreed that there is insufficient information regarding microchannel heat exchangers impact on the overall system's energy efficiency, and, therefore, such technology should be excluded from the analysis. (AHRI, No. 9 at p . 5; GE, No. 7 at p. 2) GE added that microchannel heat exchangers are of limited usefulness as a technology option due to the constraints imposed by the architecture of the space in which they are installed (
In the April 2020 RFI, DOE noted that the test procedure for SPVUs at that time only measured efficiency at full-load steady-state conditions, while thermostatic expansion valves (TXVs), electronic expansion valves (EEVs), thermostatic cyclic controls, multi-speed compressors, variable speed condenser fan/motor and variable speed indoor blower/motor technologies only provide benefit at part-load conditions. 85 FR 22958, 22962-22963 (April 24, 2020).
AHRI commented that changing the efficiency metric to reflect part-load performance would change how these technology options impact the efficiency of SPVUs. AHRI stated that it does not support the inclusion of any technology option that does not impact efficiency using the current DOE test procedure. (AHRI, No. 9 at p. 5) AHRI commented that neither variable speed condenser fan/motors nor indoor blower/motors will impact efficiency using the existing EER metric and, therefore, should not be considered in this rulemaking. (AHRI, No. 9 at p. 5) The commenter argued that indoor blower/fan improvements will impact unit size, which can be problematic for space-constrained units. AHRI added that not all products have condenser fans to improve, specifically non-weatherized units. (
AHRI and GE commented that variable speed compressors, TXVs, and EEVs do not provide a benefit using the existing EER metric and, therefore, should not be considered in this rulemaking. (AHRI, No. 9 at pp. 5-6; GE, No. 7 at p. 2) AHRI commented that in the event that DOE amends the test procedure and efficiency metric for SPVUs to account for part-load performance, variable speed compressors still may not be a viable technology option due to cost and availability. AHRI and GE noted that SPVUs are designed to accommodate a wide variety of voltages but that currently available variable speed compressors that operate at lower capacities are designed for residential applications and voltages. Consequently, AHRI and GE argued that because variable speed compressors are not available that accommodate all commercial voltages, there is a limitation on the wide-scale adoption of variable speed equipment. (AHRI, No. 9 at p. 6; GE, No. 7 at p. 2) In addition, AHRI mentioned that compressor manufacturers are also working to develop full product lines to accommodate A2L refrigerants. AHRI commented that this effort requires significant research and design resources, so they do not expect timely availability of variable speed compressors for the full voltage range required for SPVUs. (AHRI, No. 9 at p. 6)
In response, as discussed in section III.C of this document, DOE has amended its test procedure for SPVUs to include a seasonal cooling efficiency metric that includes part-load performance, and, therefore, the Department is proposing to consider amended energy conservation standards based on the IEER metric in this NOPR/NOPD. As a result, DOE considered multi-speed compressors, TXVs, EEVs, thermostatic cyclic controls, variable speed condenser fan/motors, and variable speed indoor blower/motors as technology options, because these technologies improve the performance of SPVUs during part-load operation. However, based on DOE's testing, DOE does not have sufficient test data showing that variable-speed compressors provide a measurable improvement over two-stage compressors. As a result, DOE only considered two-stage compressors as a technology option for this NOPR/NOPD. DOE understands that two-stage compressors are available for the full range of cooling capacities for SPVUs. With regards to AHRI's comment that indoor blower/fan improvements will impact unit size and that not all products have condenser fans to improve, DOE notes that it considered application of these technology options consistent with existing equipment on the market.
Additionally, DOE is no longer considering improved compressor efficiency as a technology option, as the Department is not aware of any commercially-available compressors with improved efficiency that are used in SPVUs.
Nearly all SPVUs are currently designed with R-410A as the refrigerant. The U.S. Environmental Protection Agency (EPA) Significant New Alternatives Policy (SNAP) Program evaluates and regulates substitutes for the ozone-depleting chemicals (such as air conditioning refrigerants) that are being phased out under the stratospheric ozone protection provisions of the Clean Air Act (CAA). (42 U.S.C. 7401
On December 27, 2020, the American Innovation and Manufacturing Act of 2020 was enacted in section 103 in Division S, Innovation for the Environment, of the Consolidated Appropriations Act, 2021 (Pub. L. 116-260; codified at 42 U.S.C. 7675). The American Innovation and Manufacturing Act of 2020 provides EPA specific authority to address hydrofluorocarbons (HFC), including to: (1) phase down HFC production and consumption of listed HFCs through an allowance allocation and trading program; (2) establish requirements for the management of HFCs and HFC substitutes in equipment (
In commenting on the April 2020 RFI, ASAP/ACEEE argued that alternatives to R410A such as R32, R452B, and R454B can improve efficiency by at least 5 percent
In response, DOE is aware of the changing landscape of refrigerants as they relate to SPVUs, particularly the AHRI petition that requested the EPA to require residential and light commercial air conditioners to use refrigerants with GWP of 750 or less, with such requirement applying to this equipment manufactured after January 1, 2025 (excluding VRF) and that was granted by EPA on October 14, 2021. 86 FR 57141 (Oct. 14, 2021).
DOE reviewed several studies
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(10)
(All last accessed July 25, 2022).
Based on the previous discussion, DOE identified nine technology options for this NOPR/NOPD, presented in Table V-5, that would be expected to improve the efficiency of SPVUs, as measured by the amended DOE test procedure.
DOE uses the following five screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:
10 CFR 431.4; 10 CFR part 430, subpart C, appendix A, sections 6(b)(3) and 7(b).
In summary, 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. The reasons for eliminating any technology are discussed in the following sections.
After a review of each technology, DOE tentatively concludes that all of the other identified technologies listed in Table V-5 of section V.A.3 of this document meet all five screening criteria to be examined further as design options in DOE's NOPR/NOPD analysis. In summary, DOE did not screen out the following technology options:
DOE has initially determined that these technology options are technologically feasible because they are being used or have previously been used in commercially-available products or working prototypes. DOE also finds that all of these technology options meet the other screening criteria (
The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of SPVUs. There are two elements to consider in the engineering analysis: (1) the selection of efficiency levels to analyze (
DOE typically uses one of two approaches to develop energy efficiency levels for the engineering analysis: (1) relying on observed efficiency levels in the market (
In this rulemaking, DOE relies on a design-option approach. Consistent with its previous rulemaking analysis, DOE focused the analysis on representative capacities for each equipment class. Based on market data, DOE identified representative cooling capacities for SPVACs and SPVHPs as presented in Table V-7. More specifically, DOE identified 36,000 Btu/h, 72,000 Btu/h, and 180,000 Btu/h as the nominal cooling capacities representing the most models in DOE's CCD for each SPVU equipment class.
DOE initially considered the range of efficiencies available on the market based on the data provided in DOE's CCD for SPVUs for EER and COP, as shown in Figure V-1 and Figure V-2.
However, as discussed in section III.C of this document, DOE is now proposing to amend the energy conservation standards for SPVUs so as to be based on the seasonal cooling metric, IEER, and the existing heating metric, COP. Because SPVU manufacturers currently do not report IEER, DOE conducted testing on a sample of units that included a variety of the design options presented in Table V-6. The results of DOE's testing are presented in Table V-8. DOE used these test results along with additional information gathered using reverse engineering (
For each equipment class, DOE generally selects a baseline model as a reference point for each class, and measures any changes resulting from potential new or amended energy conservation standards against the baseline. The baseline model in each product/equipment class represents the characteristics of a product/equipment typical of that class (
As part of the April 2020 RFI, DOE requested comment on appropriate baseline efficiency levels. 85 FR 22958, 22964 (April 24, 2020). On this topic, AHRI commented that DOE should use the current baseline efficiency levels for SPVACs ≥135,000 and <240,000 Btu/h cooling capacity, noting that there are only two models on the market and that it is doubtful these two models account for significant sales volume. (AHRI, No. 9 at p. 6)
As discussed in section IV of this document, DOE's current cooling mode efficiency standards for SPVUs are based on the full-load metric, EER. AHRI and DOE jointly developed a crosswalk from EER to IEER based on testing of a sample of minimally-compliant single-stage units. DOE considered these crosswalked IEER levels as the baseline cooling mode efficiency levels for this analysis. For
Based on physical teardowns of units at the baseline efficiency levels, DOE noted that baseline units for the <65,000 Btu/h cooling capacity equipment classes and ≥65,000 and <135,000 Btu/h cooling capacity equipment classes had a single stage of compressor operation and indoor/outdoor fan speeds. These units used single-speed compressors, permanent-split capacitor (PSC) outdoor fan motors with single-stage outdoor airflow, and electronically-commutated indoor blower motors (ECM) with single-stage indoor airflow. For the ≥135,000 and <240,000 Btu/h cooling capacity equipment classes, as discussed in section V.C.1.b of this document, DOE notes that all units available on the market operated with multiple compressor stages and staged airflow, using multiple compressors along with ECM indoor blowers and outdoor fans. Therefore, DOE expects that all units on the market in this equipment class can meet the efficiency level proposed.
As part of DOE's analysis, the maximum available efficiency level is the highest-efficiency unit currently available on the market. DOE also defines a “max-tech” efficiency level to represent the maximum possible efficiency for a given product. In many cases, the max-tech efficiency level is not commercially available because it is not economically feasible.
In the April 2020 RFI, DOE noted that in the previous energy conservation standards rulemaking for SPVUs for all equipment classes, DOE determined that the max-tech efficiency was the maximum available efficiency. Accordingly, DOE presented the maximum available efficiency levels using the full-load EER cooling efficiency metric and COP heating efficiency metric based on review of the DOE's CCD. DOE requested comment on appropriate max-tech efficiency levels based on EER and COP and the design options associated with these levels, as well as appropriate efficiency levels based on the seasonal efficiency metric. 85 FR 22958, 22964-22965 (April 24, 2020).
On this topic, AHRI commented that DOE should only consider currently-available technologies based on DOE's CCD for SPVUs as max-tech levels. AHRI stated that theoretical design-option approaches for max-tech levels should be avoided, as it precludes stakeholders from being able to accurately develop estimates for repair costs, predict failure modes associated with such design options, and predict costs associated with platform/design changes. (AHRI, No. 9 at p. 7) AHRI further commented that using the DOE test procedure (
The CA IOUs commented that more-efficient models (based on EER) were added to the DOE's CCD for SPVUs since DOE's review in preparation for the April 2020 RFI, so DOE should update the maximum available efficiency levels. (CA IOUs, No. 10 at p. 3)
In response, for this NOPR/NOPD, DOE considered efficiency levels based on the seasonal cooling efficiency metric that includes part-load performance, IEER, and the heating efficiency metric, COP. For SPVUs <65,000 Btu/h cooling capacity, DOE developed incremental IEER and COP higher efficiency levels up to the max-tech level based on DOE's testing of a sample of units, review of manufacturer product literature, and consideration of the range of efficiencies observed in DOE's CCD for SPVUs based on EER. As discussed in section V.C.2 of this document, DOE conducted physical teardowns on the units in its test sample. This allowed DOE to identify the design options associated with units at different efficiencies. In selecting efficiency levels, DOE primarily focused on the representative cooling capacity for this equipment class of 36,000 Btu/h. DOE notes that this method does not rely on theoretical efficiencies, per AHRI's concern.
DOE identified the first efficiency level of 13.7 IEER for SPVUs with <65,000 Btu/h cooling capacity based on units that incorporated 2-speed compressors and 2-stage indoor airflow and control logic to provide staged compressor and airflow operation. In addition, DOE observed that units at this efficiency level incorporated an increase in indoor and outdoor heat exchanger total volume compared to baseline efficiency units. Based on DOE's test data and review of available product literature, DOE expects that 13.7 IEER represents the efficiency level that can be achieved without requiring a substantial increase in heat exchanger and cabinet redesign compared to baseline efficiency units. For the max-tech efficiency level, DOE found that units with tested cooling mode
For SPVUs with ≥65,000 and <135,000 Btu/h cooling capacity, DOE applied the same design changes and the equivalent percentage increase to reach efficiency level 1 as used for the <65,000 Btu/h cooling capacity equipment class (
For SPVUs with ≥135,000 and <240,000 Btu/h cooling capacity, DOE found that there are only a small number of basic models, all of which were rated at the baseline EER of 10.0. Per the discussion in section IV of this document, all of these models operate with multiple compressor stages and staged airflow, and incorporate design options similar to efficiency level 1 for the equipment classes with cooling capacities less than 135,000 Btu/h. Therefore, the baseline efficiency was assumed to be the percent improvement in IEER associated with moving from baseline to efficiency level 1 for SPVUs <135,000 Btu/h cooling capacity (
Table V-10 presents the efficiency levels examined for each SPVU equipment class.
The cost analysis portion of the engineering analysis is conducted using one or a combination of cost approaches. The selection of cost approach depends on a suite of factors, including the availability and reliability of public information, characteristics of the regulated equipment, and the availability and timeliness of purchasing the equipment on the market. The cost approaches are summarized as follows:
•
•
•
In the September 2015 final rule, DOE directly analyzed one equipment class (
In response to this issue raised in the April 2020 RFI, AHRI expressed support for once again directly analyzing the SPVACs <65,000 Btu/h cooling capacity
In the present case, DOE conducted its cost analysis using physical teardowns on units in its test sample and catalog teardowns to expand the analysis to additional cooling capacities. Similar to the previous rulemaking, DOE conducted physical teardowns with a focus on SPVUs with <65,000 Btu/h cooling capacity. The resulting bill of materials provides the basis for the MPC estimates. As discussed in section V.C.1 of this document, DOE selected a cooling capacity of 36,000 Btu/h as the representative cooling capacity for this equipment class. DOE developed MPC estimates for SPVACs with <65,000 Btu/h cooling capacity based on the physical teardowns of 36,000 Btu/h units at each efficiency level. Where necessary, DOE ensured that the MPC estimates were based on minimally-featured equipment design so that non-efficiency related features (
To account for manufacturers' non-production costs and profit margin, DOE applies a non-production cost multiplier (the manufacturer markup) to the MPC. The resulting manufacturer selling price (MSP) is the price at which the manufacturer distributes a unit into commerce. In the April 2020 RFI, DOE requested comment on whether a manufacturer markup of 1.28, as used in September 2015 final rule, is appropriate for SPVUs. 85 FR 22958, 22966 (April 24, 2020). On this topic, AHRI commented that a manufacturer markup of 1.28 continues to be generally appropriate for SPVUs. (AHRI, No. 9 at p. 8) Accordingly, DOE has retained a manufacturer markup of 1.28 for this analysis.
Because the design options associated with each incremental efficiency level involved increases in cabinet sizes, DOE also estimated the incremental shipping cost at each efficiency level separate from the MSP. More specifically, DOE estimated the per-unit shipping costs based on the outer dimensions (including shipping pallets) at each efficiency level, assuming the use of a typical 53-foot straight-frame trailer with a storage volume of 4,240 cubic feet. DOE notes that SPVAC and SPVHP at the same cooling capacity used the same cabinet design and that the weight differential is typically small between otherwise identical SPVACs and SPVHPs. For shipping of HVAC equipment, the size threshold of a container is typically met before the weight threshold. Accordingly, because SPVACs and SPVHPs use the same cabinet size, DOE estimated the incremental shipping costs for SPVACs and SPVHPs would be equivalent.
The results of the engineering analysis are reported as cost-efficiency data (or “curves”) in the form of IEER (and COP for SPVHPs) versus MSP (in dollars). DOE developed separate cost-efficiency curves for each equipment class. These results are presented in Table V-11 through Table V-14. As discussed in section V.C.1.b of this document, DOE did not analyze any higher efficiency levels for SPVUs ≥135,000 and <240,000 Btu/h cooling capacity, because all units available on the market incorporate the same design features and have the same rated efficiency. As a result, DOE is not presenting any cost-efficiency results for this equipment class.
The markups analysis develops appropriate markups in the distribution chain (
In the September 2015 final rule (and set forth once again here), DOE identified four distribution channels for SPVUs to describe how this equipment passes from the manufacturer to the consumer. 80 FR 57438, 57461 (Sept. 23, 2015).
The first two distribution channels are used in the new construction market:
The other two distribution channels are used in the replacement market:
In the April 2020 RFI, DOE requested information on the existence of any distribution channels other than the four distribution channels identified in the September 2015 final rule. DOE also requested data on the fraction of SPVU sales that go through each of the four identified distribution channels, as well as the fraction of sales through any other identified channels. DOE also requested comment on its approach to estimating markups and any financial data available that would assist the Department in developing markups for the various segments of the SPVU distribution channels. 85 FR 22958, 22966 (April 24, 2020).
On this topic, AHRI and NEEA commented that there are more SPVU distribution channels than the four identified in the September 2015 final rule, although the four from the previous rule make up the majority of the market. AHRI and NEEA stated that SPVUs are also commonly installed in other non-modular applications such as multi-family housing, residential care, lodging, and other applications, and, therefore, those distribution channels would differ from the four used in the September 2015 final rule. (AHRI, No. 9 at p. 8; NEEA, No. 6 at p. 3) For this reason, AHRI recommended that DOE should add the following three distribution channels for SPVUs. (AHRI, No. 9 at p. 8)
AHRI did not provide the fraction of overall SPVU sales that travel through each of these new distribution channels.
As discussed in section III.A of this document, DOE updated the definitions pertaining to SPVUs in the November 2022 Test Procedure Final Rule so as to distinguish between commercial SPVUs and consumer central air conditioners. DOE notes that many of the products currently certified as SPVUs that are marketed for multi-family and lodging applications are being misclassified and should be properly classified as central air conditioners. DOE understands that the distribution channels for this equipment would be different than that of SPVUs used in modular buildings, and the Department believes that the distribution channels suggested by AHRI and NEEA fall in this category. To reiterate, central air conditioners that are misclassified as SPVUs are not included in this NOPR/NOPD, so, therefore, DOE did not adopt any of the additional distribution channels suggested by commenters to its analysis for this NOPR.
In summary, for this NOPR/NOPD, DOE considered the four distribution channels shown in Table V-15. The estimated percentages of the total sales in the new construction and replacement markets for each of the four distribution channels is listed in the bottom row of Table V-15.
Once these distribution channels were developed, DOE developed baseline and incremental markups for each actor in the distribution chain. Baseline markups are applied to the price of equipment 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.
DOE updated the sources used in the September 2015 final rule to derive markups for each step of the distribution channel with the following sources: (1) the 2017 Annual Wholesale Trade Survey
Chapter 6 of the NOPR/NOPD TSD provides details on DOE's development of markups for SPVUs.
The purpose of the energy use analysis is to determine the annual energy consumption of SPVUs at different efficiencies in representative commercial buildings, and to assess the energy savings potential of increased SPVU efficiency. The energy use analysis estimates the range of energy use of SPVUs (unit energy consumption (UEC)) in the field (
In the September 2015 final rule, DOE analyzed the energy consumption of SPVUs using a whole building energy simulation approach for three types of commercial buildings: modular offices, modular schools, and telecommunication structures. The annual energy use was simulated using Energy Plus.
In the April 2020 RFI, DOE recounted the analytical process to determine energy use taken for the September 2015 SPVU final rule and requested comment on using that approach in the current rulemaking, as well as input on any necessary modifications to such approach.
On that topic, AHRI suggested that after the draft AHRI Standard 390 is adopted, DOE should conduct a simulation approach that aligns more with an IEER analysis, rather than following the analysis for the September 2015 final rule (based on the EER metric). AHRI supported DOE's assumption that telecom cooling loads are constant throughout the year, and the commenter agreed that the telecom cooling loads used in the September 2015 final rule were reasonable. Regarding economizer usage in telecommunications structures, AHRI commented that economizers were assumed to be present in 50 percent of the SPVU market in the IEER analysis, but the organization pointed out that ASHRAE Standard 90.1 and California
In response, DOE notes that it used the same building prototypes and loads that were used to establish the IEER metric when developing the annual unit energy consumption of SPVUs in this NOPR. Regarding economizers, DOE notes that the ASHRAE economizer requirements apply to systems with cooling capacities >54,000 Btu/h.
NEEA commented that DOE should update its energy use analysis to include the deployment of SPVUs in other types of commercial buildings beyond modular buildings. In support of its recommendation, NEEA cites the 2019 Commercial Building Stock Assessment,
As discussed in section III.A of this document, DOE updated the definitions of SPVUs in the November 2022 Test Procedure Final Rule to distinguish between commercial SPVUs and consumer central air conditioners. DOE notes that many of the products currently certified as SPVUs that are marketed for non-modular applications are being misclassified and should be classified as central air conditioners. Therefore, DOE did not add any further building types to the energy use analysis for SPVUs.
In the 2015 final rule, DOE used hourly energy use simulations to model the energy use of SPVUs in modular offices, modular schools, and telecommunications structures.
Cooling UECs were calculated by multiplying the hours in each bin by the estimated power and then summing the electricity use of the four bins for each building type, in each climate zone. The baseline Heating UECs for SPVHPs were taken from the September 2015 final rule, and from that baseline, heating UECs for higher efficiency levels were scaled by the change in COP.
DOE used county-level population data from the U.S. Census Bureau,
Chapter 7 of the NOPR/NOPD TSD provides details on DOE's energy use analysis for SPVUs.
DOE conducted LCC and PBP analyses to evaluate the economic impacts on individual consumers of potential energy conservation standards for SPVUs. 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, maintenance, and repair). To compute the operating costs, DOE discounts future operating costs to the time of purchase (
• 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.
For any given efficiency level, DOE measures the change in LCC relative to the LCC in the no-new-standards case, which reflects the estimated efficiency distribution of SPVUs in the absence of new or amended energy conservation standards. In contrast, the PBP for a given efficiency level is measured relative to the baseline product.
For each considered efficiency level in each SPVU equipment class, DOE calculated the LCC and PBP in modular schools, modular offices, and telecom structures and then combined to develop aggregate results. As stated previously, DOE developed a sample of SPVU users by Census Division based on simulation data that was used to develop the IEER metric. For each Census Division, DOE determined the average energy consumption for an SPVU in a modular school, modular office, and telecom structure and the appropriate electricity price. By developing a sample of UECs by building type and Census Division, the analysis captured the variability in energy consumption and energy prices associated with the use of SPVUs.
Inputs to the calculation of total installed cost include the cost of the equipment—which includes MPCs, manufacturer markups, distributor markups, contractor markups, and sales taxes—and installation costs. Inputs to the calculation of operating expenses include annual energy consumption, energy prices and price projections, repair and maintenance costs, equipment lifetimes, discount rates, and the anticipated year that compliance with new or amended standards is required. DOE created distributions of values for equipment lifetime, discount rates, and sales taxes, with probabilities attached to each value, to account for their uncertainty and variability.
The computer model DOE uses to calculate the LCC and PBP relies on a Monte Carlo simulation to incorporate uncertainty and variability into the analysis. The Monte Carlo simulations randomly sample input values from the probability distributions and SPVU user samples. The model calculated the LCC and PBP for equipment at each efficiency level for 10,000 scenarios per simulation run. The analytical results include a distribution of 10,000 data points showing the range of LCC savings for a given efficiency level relative to the no-new-standards case efficiency distribution. In performing an iteration of the Monte Carlo simulation for a given consumer, equipment efficiency is chosen based on its probability. If the chosen equipment efficiency is greater than or equal to the efficiency of the standard level under consideration, the LCC and PBP calculation reveals that an SPVU owner is not impacted by that standard level. By accounting for SPVU owners who already purchase more-efficient equipment, DOE avoids overstating the potential benefits from increasing equipment efficiency.
DOE calculated the LCC and PBP for all consumers of SPVUs as if each were to purchase a new SPVU in the expected year of required compliance with amended standards. Amended standards would apply to SPVUs manufactured on and after the date that is one year after the date of publication of any new or amended standard in the
Table V-17 summarizes the approach and data DOE used to derive inputs to the LCC and PBP calculations. The subsections that follow provide further related discussion. Details of the spreadsheet model, as well as all the inputs to the LCC and PBP analyses, are contained in chapter 8 of the NOPR/NOPD TSD.
To calculate consumer equipment costs, DOE multiplied the MPCs developed in the engineering analysis by the markups described previously (along with sales taxes). DOE used different markups for baseline equipment and higher-efficiency equipment, because DOE applies an incremental markup to the increase in MSP associated with higher-efficiency equipment.
In the September 2015 final rule, DOE explained its rationale for using a constant price trend to project the equipment prices in the compliance year. 80 FR 57438, 57466 (Sept. 23, 2015). DOE maintained this approach for this NOPR/NOPD and used a constant trend for equipment prices between 2021 (the year for which MPCs were developed) and 2025 (the anticipated compliance year of amended standards). The constant trend is based on a historical time series of the inflation-adjusted (deflated) Producer Price Index (PPI) for all other miscellaneous refrigeration and air conditioning equipment between 1990
For more information on equipment costs, please refer to chapter 8 of the NOPR/NOPD TSD.
Installation cost includes labor, overhead, and any miscellaneous materials and parts needed to install the equipment. DOE determined that the labor required for typical installation would not change by EL, and, therefore, DOE did not include typical installation costs in this analysis. However, DOE notes that replacement installation at EL 2 would require a conversion curb, so, therefore, an installation cost is included for replacement installation at EL 2 for SPVUs <65,000 Btu/h.
For more information on installation costs, please refer to chapter 8 of the NOPR/NOPD TSD.
For each Census Division and building type, DOE determined the annual energy consumption of an SPVU at different efficiency levels using the approach described previously in section V.E of this document.
For more information on annual energy consumption, please refer to chapter 7 of the NOPR/NOPD TSD.
Because marginal electricity price reflects the cost to a consumer of a kilowatt-hour at the highest level of consumption, it provides a better representation than average electricity prices of the value of saving electricity via more efficient equipment. Therefore, DOE applied average electricity prices for the energy use of the equipment purchased in the no-new-standards case, and marginal electricity prices for the incremental change in energy use associated with the other efficiency levels considered.
DOE derived electricity prices in 2021 using data from Edison Electric Institute (EEI) Typical Bills and Average Rates reports.
DOE's methodology allows electricity prices to vary by sector and region. For a given product, electricity prices are chosen to be consistent with the way the consumer economic and energy use characteristics are defined in the LCC analysis. To measure the baseline energy cost for SPVUs, DOE used the average annual electricity prices for large commercial customers for modular schools and offices, and DOE used average annual electricity prices for small commercial customers for telecommunications structures. Marginal annual electricity prices for large commercial and small commercial customers were used to measure the operating cost savings from higher-efficiency SPVUs. See chapter 8 of the NOPR/NOPD TSD for details.
To estimate energy prices in future years, DOE multiplied the 2021 energy prices by the projection of annual average price changes for each of the nine Census Divisions from the Reference Case in
Repair costs are associated with repairing or replacing equipment components that have failed in an appliance; maintenance costs are associated with maintaining the proper operation of the equipment. In the September 2015 final rule, because data were not available to indicate how maintenance costs vary with equipment efficiency, DOE assumed maintenance costs are constant across each EL by equipment class. For repairs, DOE developed an annualized repair cost estimate, using repair cost data from RS Means,
On this topic, AHRI confirmed that maintenance costs are not likely to differ between baseline and higher-efficiency products, but the commenter stated that the cost for replacement parts will be higher for higher-efficiency products. AHRI did not have any information on failure rates and said that the repair/replace decision is usually based on installation location (
As mentioned previously, because maintenance costs do not vary by EL, DOE did not consider maintenance costs in this analysis. DOE updated the annual repair cost in the September 2015 final rule to 2021 dollars using the GDP implicit price deflator
For more information on repair and maintenance costs, please refer to chapter 8 of the NOPR/NOPD TSD.
In the September 2015 final rule, DOE used a distribution with a minimum lifetime of 10 years and a maximum of 25 years, which yielded an average SPVU life of 15 years. (DOE based these distribution estimates on a review of a range of packaged cooling equipment lifetime estimates found in published studies and online documents, because the data did not distinguish between classes of SPVU equipment.) 80 FR 57438, 57467 (Sept. 23, 2015). DOE requested comment on this approach in the April 2020 RFI. 85 FR 22958, 22968 (April 24, 2020).
In response, AHRI commented that the lifetime estimate from the September 2015 final rule is reasonable,
In this NOPR/NOPD, DOE used assumed that 14.6 percent of SPVUs would retire per year between years 11 and 15 and afterwards 2.7 percent of SPVUs would retire through year 25.
For more information on equipment lifetime, please refer to chapter 8 of the NOPR/NOPD TSD.
DOE's method for deriving discount rates for commercial entities views the purchase of a higher-efficiency appliance as an investment that yields a stream of energy cost savings. DOE derived the discount rates for the LCC analysis by estimating the cost of capital for companies or public entities that purchase SPVUs. For private firms, the weighted-average cost of capital (WACC) is commonly used to estimate the present value of cash flows to be derived from a typical company project or investment. Most companies use both debt and equity capital to fund investments, so their cost of capital is the weighted average of the cost to the firm of equity and debt financing, as estimated from financial data for publicly-traded firms in the sectors that purchase SPVUs.
In this analysis, DOE estimated the cost of capital of companies that purchase SPVU equipment. DOE used the discount rates for healthcare and industrial sectors for the modular offices, education sector discount rates for modular schools, and the utility sector discount rates for telecommunications shelters.
For more information on discount rates, please refer to chapter 8 of the NOPR/NOPD TSD.
To accurately estimate the share of consumers that would be affected by a potential energy conservation standard at a particular efficiency level, DOE's LCC analysis considers the projected distribution (market shares) of equipment efficiencies under the no-new-standards case (
In the present case, DOE estimated the current energy efficiency distribution of SPVUs <65,000 Btu/h in terms of IEER, with 62 percent at the baseline, 27 percent at EL 1, and 11 percent at EL 2. For SPVUs >65,000 and <135,000 Btu/h, DOE estimates that 53 percent of the market is at the baseline and that 47 percent is at EL 1. The estimated market shares for the no-new-standards case for SPVUs are shown in chapter 8 of the NOPR/NOPD TSD.
The payback period is the amount of time (expressed in years) it takes the consumer to recover the additional installed cost of more-efficient equipment, compared to baseline equipment, through operating cost savings. Payback periods that exceed the life of the equipment mean that the increased total installed cost is not recovered in reduced operating expenses.
The PBP calculation for each efficiency level considers the change in total installed cost of the equipment and the change in the first-year annual operating expenditures relative to the baseline equipment. DOE refers to this as a “simple PBP” because it does not consider changes over time in operating cost savings. The PBP calculation uses the same inputs as the LCC analysis, except that energy price trends, repair costs, and discount rates are not used.
For more information on PBP, please refer to chapter 8 of the NOPR/NOPD TSD.
The following section addresses the results from DOE's analyses with respect to the considered energy conservation standards for SPVUs. Additional details regarding DOE's analyses are contained in the NOPR/NOPD TSD supporting this document.
DOE analyzed the economic impacts of potential amended standards at more-stringent levels on SPVU consumers by calculating the LCC savings and the PBP at each considered EL. Inputs used for calculating the LCC and PBP include total installed costs (
Table VI-1 through Table VI-4 show the LCC and PBP results for the ELs considered in this analysis. There are no results for SPVUs >= 135,000 Btu/h and < 240,000 Btu/h because there are no efficiency levels above the baseline. Note that the simple payback is measured relative to the baseline product. The LCC savings are measured relative to the efficiency distribution in the no-new-standards case in the compliance year (see section V.F.8 of this document). The LCC savings refer only to consumers who are affected by a standard at a given EL. Those who already purchase a product with efficiency at or above a given EL are not affected. Consumers for whom the LCC increases (negative LCC savings) at a given EL experience a net cost.
EPCA specifies that for any commercial and industrial equipment addressed under 42 U.S.C. 6313(a)(6)(A)(i), which includes SPVUs, DOE may prescribe an energy conservation standard more stringent than the level for such equipment in ASHRAE Standard 90.1 only if “clear and convincing evidence” shows that a more-stringent standard would result in significant additional conservation of energy and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)(ii)(II)) The “clear and convincing” evidentiary threshold applies both when DOE is triggered by ASHRAE action and when DOE conducts a six-year-lookback rulemaking, with the latter being the basis for the current proceeding. In light of these statutory criteria, DOE conducted an assessment of whether the current energy conservation standards for SPVUs should be replaced with more-stringent standards. DOE's tentative conclusions are set forth in the paragraphs that follow.
DOE considers technologies incorporated in commercially-available products or in working prototypes to be technologically feasible. Per the technology options discussed in section V.A.2 of this document, DOE has tentatively determined, based on clear and convincing evidence, that more-stringent energy conservation standards for SPVUs would be technologically feasible.
In determining whether a potential energy conservation standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the seven statutory factors discussed in section II.A of this document. (42 U.S.C. 6313(a)(6)(A)(ii)(II); 42 U.S.C. 6313(a)(6)(B)(ii)(I)-(VII))
One of those seven factors is the savings in operating costs throughout the estimated average life of the product in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses of the products that are likely to result from the standard. (42 U.S.C. 6313(a)(6)(B)(ii)(II)) This factor is typically assessed using the LCC and PBP analysis.
DOE conducted an LCC analysis to estimate the net costs and benefits to users from increased efficiency in the considered SPVUs. The LCC savings are negative at nearly all ELs considered in this analysis (see Table VI-1 through Table VI-4). The one EL with positive LCC savings is EL 1 for SPVACs ≥65,000 Btu/h and <135,000 Btu/h, which represents less than 3 percent of total SPVU shipments. Given the highly negative results for all other product classes, which make up over 97 percent of SPVU shipments, the LCC savings across all SPVUs product classes would be negative on a weighted average basis. Based on these findings, DOE has tentatively determined that the economic impact of more-stringent standards on the consumers of the equipment subject to the standard, which is one the seven factors used to evaluate economic justification, would be strongly negative.
Because of the importance DOE places on the economic impact of potential standards on consumers, DOE did not explicitly analyze the other factors that it typically considers in determining economic justification, including the projected quantity of energy savings likely to result directly from amended standards.
DOE has tentatively determined that quantification of energy savings from potential amended standards is not necessary if there is strong evidence that such standards would not be economically justified.
DOE may prescribe an energy conservation standard more stringent than the level for such equipment in ASHRAE Standard 90.1 only if “clear and convincing evidence” shows that a more-stringent standard would result in significant additional conservation of energy and is technologically feasible and economically justified. Based on the negative LCC savings at all but one EL for each equipment class, and weighted average negative LCC savings across all SPVUs, DOE has tentatively determined that it lacks “clear and convincing” evidence that more-stringent standards would be economically justified for SPVUs. Therefore, DOE is proposing to determine that more-stringent energy conservation standards for SPVUs are not warranted. DOE will consider and respond to all comments received on this proposed determination when issuing any final determination or
As a separate matter, DOE is proposing to amend the energy conservation standards for SPVUs so as to be based on the IEER and COP metrics that are of equivalent stringency as the current Federal standard levels (and equivalent to the current standard levels specified in ASHRAE Standard 90.1-2019). The proposed standards are presented in Table VI-5. These proposed standards, if adopted, would apply to all SPVUs manufactured in, or imported into, the United States starting on the compliance date, as discussed in the following paragraphs.
In instances in which DOE adopts more-stringent standards under its 6-year-lookback review authority, EPCA states that any such standard shall apply to equipment manufactured after a date that is the latter of the date three years after publication of the final rule establishing such standard or six years after the effective date for the current standard. (42 U.S.C. 6313(a)(6)(C)(iv)) As discussed, DOE has tentatively determined that it does not have clear and convincing evidence to justify adopting more-stringent standards for SPVUs, so, therefore, the three-year and/or six-year lead time period would not apply.
Instead, the proposed energy conservation standards for SPVUs are of equivalent stringency but based on a new metric (
Executive Order (E.O.) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), 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 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 proposed 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 document under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. DOE has tentatively concluded that this proposed rule/proposed determination will not have a significant impact on a substantial number of small entities. The factual basis for this determination is as follows:
For manufacturers of SPVU equipment, 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. SPVU manufacturers, who produce the equipment covered by this document, are classified under NAICS code 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” In 13 CFR 121.201, the SBA sets a threshold of 1,250 employees or fewer for an entity to be considered as a small business for this category. This employee threshold includes all employees in a business's parent company and any other subsidiaries.
DOE identified manufacturers using DOE's Compliance Certification
In this document, DOE proposes to adopt energy conservation standards for SPVUs based on the Integrated Energy Efficiency Ratio (IEER) metric for SPVACs and SPVHPs, and the Coefficient of Performance (COP) metric for SPVHPs. In the November 2022 Test Procedure Final Rule, DOE amended the test procedures for SPVUs to incorporate by reference AHRI 390-2021, which added a seasonal metric that includes part-load cooling performance—the IEER metric. DOE has determined that the IEER metric is more representative of the cooling efficiency for SPVUs on an annual basis than the current EER market. DOE conducted a crosswalk analysis to develop IEER levels that are of equivalent stringency to the current EER standard levels. DOE has tentatively determined that it lacks clear and convincing evidence to support adoption of amended standards for SPVUs (in terms of IEER and COP) that are more stringent than the current standards for SPVUs, because the Department has tentatively concluded that such standards would not be economically justified.
Therefore, DOE determined that manufacturers would only incur costs as result of this NOPR/NOPD if a manufacturer were not already testing to AHRI 390-2021.
As discussed in the 2022 Test Procedure Final Rule, DOE determined that the test procedure impacts to manufacturers would not have a significant economic impact on a substantial number of small businesses. Therefore, on the basis of limited small entities affected and the
DOE's regulations pertaining to 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. (
The collection-of-information requirement for certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). 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 SPVUs. Public reporting burden for the certification is estimated to average 35 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Revised certification data would be required for SPVU were this NOPR/NOPD to be finalized as proposed; however, DOE is not proposing amended certification or reporting requirements for SPVUs in this NOPR. Instead, DOE may consider proposals to establish certification requirements and reporting for SPVUs 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 NOPR/NOPD, DOE is proposing amended energy conservation standards for SPVUs that would utilize a new cooling efficiency metric (IEER); however, the amended standards, if adopted, would be of equivalent stringency to the current Federal standards for SPVUs. DOE is analyzing this proposed regulation in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
E.O. 13132, “Federalism,” 64 FR 43255 (August 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule/proposed determination and has tentatively determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that are the subject of this proposed rule/proposed determination. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297(d)) Therefore, no further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 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. 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 Executive Order 12988 requires executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule/proposed determination 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, section 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
DOE examined this proposed rule/proposed determination according to UMRA and its statement of policy and determined that it contains neither a Federal intergovernmental mandate, nor a mandate expected to require expenditures of $100 million or more in any one year. 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 proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
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 proposed rule/proposed determination 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 proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has tentatively concluded that this regulatory action, which does not propose to increase stringency beyond the current Federal standard levels for SPVUs, is not a significant energy action because it is not a significant regulatory action under E.O. 12866. Moreover, it would not 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 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 has prepared a report describing that peer review.
The time and date of the webinar meeting are listed in the
Any person who has an interest in the topics addressed in this NOPR/NOPD, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the public meeting webinar. Such persons may submit requests to speak via email to the Appliance and Equipment Standards Program at:
DOE requests persons selected to make an oral presentation to submit an advance copy of their statements at least two weeks before the webinar. At its discretion, DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Office. As necessary, requests to give an oral presentation should ask for such alternative arrangements.
DOE will designate a DOE official to preside at the public meeting 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 public meeting 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 public meeting 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 present 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.
A transcript of the public meeting 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/proposed determination before or after the public meeting, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. 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).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
Additionally, DOE welcomes comments on other issues relevant to the conduct of this proposed rulemaking that may not specifically be identified in this document.
The Secretary of Energy has approved publication of this notice of proposed rulemaking; notification of proposed determination.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Laboratories, Reporting and recordkeeping requirements, Small businesses.
This document of the Department of Energy was signed on November 22, 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 set forth in the preamble, DOE proposes to amend part 431 of Chapter II, Subchapter D, of Title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C 6291-6317; 28 U.S.C 2461 note.
(d) (1) Each single package vertical air conditioner and single package vertical heat pump manufactured on and after October 9, 2015 (for models ≥65,000 Btu/h and <135,000 Btu/h) or October 9, 2016 (for models ≥135,000 Btu/h and <240,000 Btu/h), or September 23, 2019 (for models <65,000 Btu/h), but before (
(2) Each single package vertical air conditioner and single package vertical heat pump manufactured on or after (
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to amend certain airworthiness regulations to standardize the criteria for conducting safety assessments for systems, including flight controls and powerplants, installed on transport category airplanes. With this action, the FAA seeks to reduce risk associated with airplane accidents and incidents that have occurred in service, and reduce risk associated with new technology in flight control systems. The intended effect of this proposed action is to improve aviation safety by making system safety assessment (SSA) certification requirements more comprehensive and consistent.
Send comments on or before March 8, 2023.
Send comments identified by docket number FAA-2022-1544 using any of the following methods:
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Suzanne Masterson, Strategic Policy Transport Section, AIR-614, Strategic Policy Management Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax (206) 231-3211; email
The FAA's authority to issue rules on 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 III, Section 44701, “General Requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for the design and performance of aircraft that the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority. It prescribes new safety standards for the design and operation of transport category airplanes.
The FAA proposes to revise regulations in title 14, Code of Federal Regulations (14 CFR) part 25 (Airworthiness Standards: Transport Category Airplanes) related to the safety assessment
The FAA proposes revised and new safety standards to reduce the likelihood of potentially catastrophic risks due to latent failures in critical systems. The standards would require the elimination of such risks as far as practical. When it is not practical to eliminate such a risk, the standards would require the reduction and management of any remaining risk. The proposed standards would also improve the likelihood that operators discover latent failures and address them before they become an unsafe condition, rather than discovering them after they occur and the FAA addressing them with airworthiness directives (ADs).
Because modern aircraft systems (for example, avionics and fly-by-wire systems) are much more integrated than they were when the current safety criteria in § 25.1309 and other system safety assessment rules were established in 1970,
Consistent criteria for conducting SSAs would also provide predictability for applicants by reducing the number of issue papers and special conditions necessary for airplane certification projects.
Specifically, the proposed rule would—
• Require that applicants limit the likelihood of a catastrophic failure condition that results from a combination of two failures, either of which could be latent. In this proposal, the FAA refers to this particular failure condition as a Catastrophic Single Latent Failure Plus One (CSL+1) because it consists of the catastrophic condition that results from a single latent failure plus one additional failure. See proposed § 25.1309(b)(5).
• Revise safety assessment regulations to eliminate ambiguity in, and provide consistency between, the safety assessments that applicants must conduct for different types of airplane systems. Section 25.1309 would continue to contain the safety assessment criteria applicable to most airplane systems. Sections 25.671(c) (flight control systems) and 25.901(c) (powerplant installations) would be amended to remove general system safety criteria. Instead, the systems covered in these sections would be required to comply with § 25.1309 (system safety criteria). Section 25.933(a) (thrust reversing systems) would allow compliance with § 25.1309 as an option. Sections 25.671, 25.901, and 25.933 would continue to contain criteria for safety assessments specific to flight control systems, powerplant installations, and thrust reversing systems, respectively.
• Require applicants to assess and account for any effect that the failure of a system could have on the structural performance of the airplane. See proposed § 25.302.
• Define the different types of failure of flight control systems, including jams, and define the criteria for safety assessment of those types of failures. See proposed § 25.671.
• Require applicants to include, in the Airworthiness Limitations Section (ALS) of the airplane's Instructions for Continued Airworthiness (ICA), necessary maintenance tasks that
• Remove the “function properly when installed” criterion in § 25.1301(a)(4) for installed equipment whose function is not needed for safe operation of the airplane.
This proposed action is necessary because airplane accidents, incidents, and service difficulties have occurred as a result of failures in airplane systems. Some of these occurrences were caused, in part, by insufficient design standards for controlling the risk of latent failures. Current FAA regulations do not prevent the unintended operation of an airplane with a latent failure that, when combined with another failure, could cause an accident. For example, in 1991, a Boeing Model 767 series airplane operated by Lauda Air took off with a contaminated thrust reverser control valve. This contamination was “latent” because it was undetected. The accident investigation found that a short circuit occurred, and together with the contaminated control valve, caused the thrust reverser to unintentionally deploy in flight. As a result, the airplane subsequently crashed, resulting in 223 fatalities.
Also, current regulations do not require establishment of mandatory inspections for significant latent failures that may pose a risk in maintaining the airworthiness of the airplane design. Such inspections may be necessary to reduce an airplane's exposure to these latent failures, so airplanes continue to meet safety standards while in service.
Additionally, current regulations do not adequately address new technology in flight control systems and the effects these systems can have on controllability and structural capability. For example, on airplanes equipped with fly-by-wire control systems, there is no mechanical link between the flightdeck control and the control surface, so the flightcrew may not be aware of the actual control surface position. Also, on some flight control system designs, there may be submodes of operation that change or degrade the normal handling or operational characteristics of the airplane. Flightcrew awareness of both the operational mode of the airplane and the control surface positions are necessary design features to ensure safety of flight but are not required by current regulations.
This action is also necessary to address flight control systems whose failure can affect the loads imposed on the airplane structure. As an example, some airplanes are equipped with rudder limiters, which reduce the maximum deflection of the rudder at higher airspeeds, thereby reducing the maximum loads on the rudder and vertical stabilizer. Failure of the rudder limiter can result in higher loads on these surfaces in the event of a significant rudder maneuver. Excessive loads can lead to structural damage and catastrophic failure. Current regulations do not require applicants to account for these potentially higher loads in the structural design of the airplane.
Lastly, certain system safety requirements are not standardized across airplane systems. Current regulations specify different safety assessment criteria for different systems, which can lead to inconsistent standards across the airplane. Also, when systems that traditionally have been separate become integrated using new technology, applicants may be unsure which standard to apply.
The FAA proposes to address these issues by revising the system safety assessment requirements in part 25.
Advances in flight controls technology, increased airplane system integration, and certain incidents, accidents, and service difficulties related to system failures prompted the FAA to task the ARAC with developing recommendations for new or revised requirements and compliance methods related to the safety assessment of airplane and powerplant systems. The ARAC accepted tasks on various airplane systems issues and assigned them to the Powerplant Installation Harmonization Working Group (PPIHWG),
In developing their recommendations, the PPIHWG and FCHWG reviewed the investigations of two transport category airplane accidents. In the May 1991 Lauda Air accident, discussed previously, an unintentional thrust reverser deployment on a Boeing Model 767 series airplane caused a loss of airplane controllability.
The PPIHWG recommended revisions to § 25.901(c), to address failures and malfunctions of powerplant and auxiliary power unit (APU) installations, and to § 25.933, to address failures and malfunctions of thrust reversing systems. The FCHWG recommended changes to § 25.671 to address failures and jamming of flight control systems. The LDHWG recommended the addition of a new rule, § 25.302, to address systems that directly, or as a result of a failure or malfunction, would affect the structural performance of the airplane. The SDAHWG recommended revisions to §§ 25.1301 and 25.1309, and further changes to § 25.901(c). Each working group also recommended advisory material to accompany the recommended regulatory changes. The SDAHWG named their recommended
Although the working groups each addressed the subject of managing latent failures in safety critical systems, their recommendations were not consistent when defining the criteria for latent failures. After reviewing the relevant regulations, and the recommendations from the working groups, the FAA, along with the European, Canadian, and Brazilian civil aviation authorities, identified a need to standardize SSA criteria. These authorities were concerned that the safety criteria recommended by the working groups could result in differing safety assessments across various critical systems. Differing standards could result in an inappropriately low level of safety on some critical systems, or, conversely, unnecessarily apply the most stringent standard to every system in a set of integrated systems.
Therefore, in 2006, the FAA tasked ARAC, which assigned the task to the Airplane-Level Safety Assessment Working Group (ASAWG),
The ASAWG completed its work in May 2010 and recommended a set of consistent requirements that would apply to all systems. Specific areas addressed in the recommendation report include latent failures, aging and wear, Master Minimum Equipment Lists, and flight and diversion time. The ASAWG recommended that the general system safety criteria for all airplane systems be governed by § 25.1309, and recommended adjustments to the regulations and advisory material addressed by the working groups mentioned previously, to implement consistent system safety criteria. All ARAC working group recommendation reports are available in the docket for this NPRM.
One ASAWG recommendation responded to the need to prevent a catastrophic failure condition resulting from two failures, when either failure is latent (undetected) for more than one flight. In such a case, the first failure is latent, and thus persists undetected, and the second failure is active (detected) because its occurrence results in a catastrophic accident. In consideration of this recommendation, the FAA reviewed a number of past service difficulty reports
• A latent failure of a fire extinguisher control switch that, if coupled with an active failure such as an engine fire, could have resulted in an uncontrollable engine fire.
• A latent failure of the high-lift system
• A latent failure of a high-lift system proximity sensor that, if coupled with an active failure such as a high-lift drive system failure, could have resulted in loss of control.
The FAA has determined that such service difficulties were, in part, a consequence of insufficient design standards for controlling the risk due to latent failures, and the FAA expects similar service difficulties in the future if the standards are not revised to manage such risks.
In 2009, the Commercial Aviation Safety Team (CAST)
In 2011, the task force reported on the gaps it found, and recommended mitigation strategies.
The FAA has applied most of the SSA criteria proposed in this NPRM to certification projects for the past 15 years, through equivalent level of safety (ELOS) findings under § 21.21. The topics of these findings include flight control systems (§ 25.671(c)) as recommended by the FCHWG; thrust reversers (§ 25.933(a)(1)) as recommended by the PPIHWG; and general SSA criteria (§§ 25.1301 and 25.1309) as recommended by the SDAHWG.
Modern transport category airplanes are equipped with systems that, directly or as a result of failure or malfunction, affect structural performance. However, current regulations do not require applicants to take into account loads on the airplane due to the effects of system failures on structural performance. Therefore, the FAA has applied special conditions that require the effects of
Finally, the FAA has applied the requirements in proposed § 25.671(a), (e), and (f) for fly-by-wire control systems to recent type certificate applications through means of compliance issue papers and special conditions.
EASA certification standards for large airplanes (CS-25) prescribes the airworthiness standards corresponding to 14 CFR part 25 for transport category airplanes certified by the European Union. Applicants for FAA type certification of transport category airplanes may also seek EASA validation of the FAA's type certificate. Where part 25 and CS-25 differ, an applicant must meet both airworthiness standards to obtain a U.S. type certificate and validation of the type certificate by foreign authorities, or obtain exemptions, ELOS findings or special conditions, or the foreign authority's equivalent to those, as necessary to meet one standard in lieu of the other. Where FAA and EASA can maintain harmonized requirements, applicants for type certification benefit by having a single set of requirements with which they must show compliance, thereby reducing the cost and complexity of certification and codifying a consistent level of safety.
EASA incorporated the SDAHWG-recommended changes to §§ 25.1301 and 25.1309, and associated guidance, in its initial issuance of CS-25 on October 17, 2003.
This proposal would update the requirements and guidance for system safety assessments to support, in part, the requirements of the Aircraft Certification, Safety, and Accountability Act, Public Law 116-260 (the Act). Section 115(b)(1)(A) of the Act states that the Administrator of the FAA shall require an applicant for an amended type certificate for a transport airplane to perform a system safety assessment with respect to each proposed design change that the Administrator determines is significant, with such assessment considering the airplane-level effects of individual errors, malfunctions, or failures and realistic pilot response times to such errors, malfunctions, or failures. Currently, § 25.1309 requires this action, not just for significant design changes, but for all design changes affecting systems. Specifically, § 25.1309(b) requires applicants assess safety at the airplane level for airplane systems and associated components, considered separately and in relation to other systems. Section 25.1309(d) specifies that compliance to § 25.1309(b) must be shown by analysis and appropriate testing, and must consider possible modes of failure, including malfunctions and damage and also that the assessment consider crew warning cues, corrective action required, and the capability of detecting faults. In the context of § 25.1309, “corrective action” means flightcrew procedures for use after failure detection to enable continued safe flight and landing.
Section 115(b)(1)(B) of the Act states that the system safety assessments required by section 115(b)(1)(A) of the Act be updated for each subsequent proposed design change that the Administrator determines is significant. As discussed, § 25.1309 already requires this action not just for significant design changes, but for all design changes affecting systems. This proposed rulemaking would update the analysis necessary for airplane-level effects of individual errors, malfunctions, or failures.
Section 115(b)(1)(C) of the Act states that applicants must provide to the FAA the data and assumptions underlying each assessment and amended assessment. Draft AC 25.1309-1B, which accompanies this rulemaking, states that a system safety assessment, to show compliance, should provide data such as component failure rates and their sources and applicability, and support any assumptions made. Section 7.9 of the draft AC provides detailed guidance on identification and justification of assumptions, data, and analytic techniques.
Section 115(b)(1)(D) of the Act states that applicants must provide for document traceability and clarity of explanations for changes to aircraft type designs and system safety assessment certification documents. Appendix C of Draft AC 25.1309-1B, describes the safety assessment process, and states that a system safety assessment, to show compliance, should include, among other things, a statement of the functions, boundaries, and interfaces of the system and a description that establishes correctness and completeness and traces the work leading to the conclusions of the SSA.
These updates to system safety assessment requirements, and to implementing guidance, would provide a foundation to address how human (flight crew) response is treated and validated within the context of the required analysis. As required by Section 126 of the Act, the FAA is researching pilot responses to errors, malfunctions and failures, and may use that research in the future to update guidance in this regard.
As a result of the aforementioned 1994 Pittsburgh accident, the National Transportation Safety Board (NTSB) issued two safety recommendations relevant to this rulemaking, A-99-22 and A-99-23.
The NTSB issued Safety Recommendation A-02-51
The NTSB issued Safety Recommendation A-14-119
After consideration of the issues in the Statement of Problem, the relevant NTSB recommendations, and ARAC recommendations, the FAA proposes to revise several regulations to change how applicants would conduct SSAs.
Current § 25.1309(b) requires applicants to design the systems and associated components (considered both separately and in relation to each other) of their proposed transport category airplane to meet two criteria. First, these systems must be designed so that the occurrence of any failure condition which would prevent the safe flight and landing of the airplane is extremely improbable (§ 25.1309(b)(1)). Second, each system must be designed so that the likelihood of any other failure condition which would reduce the capability of the airplane, or of its flightcrew, to cope with adverse operating conditions is improbable (§ 25.1309(b)(2)).
The FAA proposes to revise § 25.1309(b) to establish risk criteria that can be used consistently across multiple airplane systems, harmonize FAA regulations with EASA Certification Specifications for Large Aeroplanes (CS) 25.1309(b), and codify commonly issued ELOS findings. The proposed revisions would require that type certificate applicants design and install airplane systems and associated components, evaluated both separately and in relation to other systems, so that—
• Each catastrophic failure condition is extremely improbable and does not result from a single failure;
• Each hazardous failure condition is extremely remote; and
• Each major failure condition is remote.
As noted previously, the current rule (§ 25.1309(b)(2)) requires any failure condition that would reduce the capability of the airplane or the ability of the crew to cope with adverse operating conditions to be “improbable” (on the order of 10
As previously discussed, the FAA has issued ELOS findings for more than a decade to accept use of the ARAC-recommended revision to §§ 25.1301 and 25.1309 in lieu of §§ 25.1301 and 25.1309, and the accompanying “Arsenal” version of AC 25.1309-1 as the method of compliance. In the “Arsenal” version, the “major” failure condition is divided into two categories: “hazardous” and “major”, with corresponding probability requirements of “extremely remote” (on the order of 10
This proposal would codify current practice by adding the “hazardous” failure condition category and its probability requirement, replace the probability term “improbable” with “remote” for major failure conditions, and prohibit catastrophic single failure.
An objective of this proposal is to align the regulatory terms used in 14 CFR part 25 to describe failure condition categories and probabilities with the terms used in the most recent transport airplane certification projects (whose SSAs use the methods in the “Arsenal” version of AC 25.1309-1 and in EASA CS 25.1309 and accompanying guidance). Proposed § 25.1309(b) would use terms that are already used by the aviation industry to describe failure condition categories and probabilities. Additionally, since the FAA also uses these terms in other part 25 regulations, such as §§ 25.671, 25.981, and 25.1709, the FAA proposes to define them in a new § 25.4, “Definitions.” Although the terminology in § 25.1309(b) would change from the current regulations, the intent and usage of those terms would not change as a result.
Proposed § 25.1309(b)(1)(ii) would prohibit a proposed design from allowing any single failure that could result in a catastrophic failure condition (
Amendment 25-23 also amended § 25.671(c) to prohibit catastrophic single failures in flight control systems. At that time, § 25.901(c) applied § 25.1309 to powerplant installation, requiring applicants to assume in their safety assessments that any single failure could occur. With amendment 25-40 in 1977,
This proposed rule would also make the requirements for safety assessments of flight control systems and powerplant installations consistent with the requirements for other systems in regard to prohibiting catastrophic single failures. Systems covered by the proposed §§ 25.671(c) and 25.901(c) would be required to comply with the § 25.1309 prohibition of catastrophic single failures under all operating and environmental conditions under which the airplane was approved to operate. Incorporation of fail-safe design requirements across all the critical systems of the airplane would ensure consistent safety objectives are implemented. Further discussion of proposed changes to §§ 25.671(c) and 25.901(c) is provided in sections III.E and III.B.2.d of this preamble, respectively.
The FAA proposes to add a new paragraph (b)(4) to § 25.1309 that would require applicants to avoid SLFs whenever practical. The purpose of proposed § 25.1309(b)(4) is to reduce an airplane's exposure to SLFs by establishing the following hierarchy of safety requirements. First, the applicant must eliminate SLFs. If the elimination of the SLF is not practical, then the applicant must limit the likelihood of that SLF to 1/1000 between inspections. If the applicant proves that it is not practical to comply with the 1/1000 criterion, then the applicant must design the system to minimize the failure's latency; that is, minimize the length of time the failure is expected to be present, and remain undetected.
The FAA intends the proposed rule to minimize the latency of SLFs and achieve the safety objective of the ASAWG's recommendation to avoid SLFs whenever practical. The FCHWG, PPIHWG, and ASAWG each recommended the 1/1000 value to limit the latency period in the failure conditions specific to that working group's technical area. The FAA proposes that application of the 1/1000 criterion to every system that may contain a SLF is a necessary safety measure that an applicant can apply. This 1/1000 criterion is necessary to reduce exposure of the airplane to latent failures that leave the airplane one failure away from a hazardous or catastrophic condition. This criterion is cost effective as described in the costs and benefits section of this NPRM.
An applicant may be able to show, in rare situations, that it is not practical to meet the 1/1000 criterion. One possible example is if compliance with the 1/1000 criterion would necessitate complex or invasive maintenance tasks on the flight line, increasing the risk of incorrect maintenance. In such situations, safety may be better served if the operator inspects for latent failures at a maintenance facility or at a longer inspection interval, even though the longer inspection interval could mean the probability of the latent failure exceeds 1/1000; however, the applicant must minimize the time the failure is expected to be present. The FAA expects that an applicant would likely integrate these steps into its normal design processes. During the FAA's review of an applicant's proposed demonstration of compliance with the other provisions of § 25.1309(b), if the FAA determines that it may be practical to eliminate or further reduce exposure to a SLF, then these proposed regulations would require the applicant to either redesign the system or demonstrate the impracticality of that redesign.
The FAA proposes a new standard for limiting the risk of a CSL+1 failure condition (a catastrophic failure combination that results from a single latent failure plus one additional failure). Under current regulations, an operator could unknowingly dispatch an airplane with a potential CSL+1 failure condition. Under this proposal, when conducting SSAs, an applicant would be required to apply additional criteria in proposed § 25.1309(b)(5) (pertaining to additional fault tolerance, residual risk, and probability of latent failures) to limit the specific risk of a CSL+1 failure condition, in addition to the requirement in § 25.1309(b)(1).
For each potential catastrophic failure condition that results from two failures, either of which could be latent for more than one flight, the applicant would be required by § 25.1309(b)(5)(i) to show that it is impractical to design the system with additional fault tolerance. For example, if practical, the applicant could add a failure monitor, thereby eliminating the latency of the first (undetected) failure. Or, the applicant could design additional redundancy in the system, so that the second failure would not be catastrophic. In either case, the condition resulting from the failure combination would no longer create a CSL+1 failure condition.
The FAA proposes § 25.1309(b)(5)(ii), which would adopt the ASAWG recommendation to limit the total probability that any single failure could lead to a catastrophe following a latent failure. This total probability could be no greater than “remote.” The ASAWG recommended the “remote” criterion based on the reliability of components typically used in systems that have a redundant means to protect against catastrophic single failures. These components have demonstrated a level of reliability, on the order of 1x10
Therefore, the FAA proposes that this “remote” criterion, in combination with the criterion to limit latency to a maximum probability of 1/1000, would establish an acceptable level of safety for potential CSL+1 failure conditions. Also, if a system has multiple potential failure combinations that lead to the same CSL+1 failure condition, each combination of which contains the same latent failure, the applicant would be required to sum the probabilities of the non-latent failures. The resulting sum of probabilities would also have to meet the “remote” criterion.
Proposed § 25.1309(b)(5)(iii) would limit the probability of occurrence of a latent failure in a CSL+1 combination to 1/1000. The 1/1000 value would be the proposed maximum allowable probability of a latent failure. To comply, the applicant would multiply the maximum time the latent failure is allowed to be present by the component failure rate, and show that the resultant value is less than or equal to 1/1000. The maximum time is typically the time between inspections. The ASAWG recommended limiting the probability of occurrence of a latent failure in a CSL+1 combination to be “on the order of” 1/1000 or less. The FAA and Transport Canada submitted dissenting opinions, documented in the ASAWG final report, that the phrase “on the order of” would defeat the purpose of establishing a clear criterion for limiting the likelihood of a latent failure; therefore, this proposal omits that phrase. Instead, the 1/1000 value would be the maximum allowable probability of a latent failure occurring between inspections.
To determine this 1/1000 limit, the ASAWG drew on the knowledge of the FCHWG and PPIHWG, both of which determined that 1/1000 was a practical limit on the probability of a latent failure in the flight control and thrust reversing systems. The ASAWG evaluated safety analysis data and found that the probability of a latent failure between inspections very rarely exceeded 1/1000.
Applicants have raised numerous questions regarding the applicability of § 25.1309. The FAA therefore proposes to revise § 25.1309 as follows:
The FAA proposes to add an introductory paragraph to § 25.1309, which specifies that the rule applies to all systems and equipment on the airplane. Section 25.1309(a) currently requires that applicants design and show that only the equipment, systems, and installations whose functioning is required by Subchapter C—Aircraft will perform their intended functions under any foreseeable operating condition (amendment 25-123, dated December 10, 2007). This proposed rule would adopt the SDAHWG's recommendation to remove the limitation to Subchapter C, which would broaden the applicability of § 25.1309 to any system or equipment as installed on the airplane, regardless of whether it is required for type certification or by operating rules.
The FAA proposes to remove § 25.1301(a)(4), which requires that installed equipment function properly when installed, and address that requirement through proposed § 25.1309(a), which would contain requirements for two different classes of equipment and systems installed in the airplane: (1) equipment and systems that are required for type certification or by operating rules, or whose improper functioning would reduce safety; and (2) all other systems.
Proposed § 25.1309(a)(1) would apply to all installed airplane equipment and systems whose improper functioning would reduce safety, regardless of whether the equipment or system is required by type certification rules or operating rules. Such equipment and systems would be required to perform as intended under the airplane operating and environmental conditions. A failure or malfunction of equipment or systems reduces safety if the failure or malfunction results in a minor or more severe failure condition. The FAA recognizes, however, that failures may occur throughout the operational life of the airplane, and that a failed system may no longer perform as intended. The acceptability of failures and their associated risks are covered by the fail-safe regulations, such as §§ 25.901(c), 25.1309(b), 25.671(c), 25.735(b)(1), 25.810(a)(1)(v), 25.812, 25.903(d)(1), and 25.1316.
The FAA further proposes new § 25.1309(a)(1) to require that equipment and systems perform as intended not just under airplane operating conditions as required by current § 25.1309(a), but under environmental conditions as well. This change is needed to remove an ambiguity in the current regulations, and ensure that an applicant's safety assessment is complete.
Current § 25.1309(a) requires that each such item perform its intended functions under “any foreseeable operating condition,” but does not mention “environmental conditions.” The method of compliance to the rule in AC 25.1309-1A discusses both types of conditions. To perform the safety assessment using the method in that AC, the applicant must account for the airplane operating conditions (such as weight, center of gravity, altitudes, flap positions) and the environmental conditions that the airplane is reasonably expected to encounter (such as atmospheric turbulence, lightning, or precipitation).
The FAA has not required that systems and components perform as intended in foreseeable but easily avoidable environmental conditions, such as volcanic ash clouds. Thus, the FAA proposes to remove “any foreseeable” from § 25.1309(a)(1). This change would also harmonize with CS 25.1309(a)(1).
The intent of this change is to ensure that the applicant evaluates the continued function of equipment and systems—
• Throughout the airplane's normal operating envelope, as defined by the airplane flight manual (AFM), together with any modification to that envelope associated with abnormal or emergency procedures, and any anticipated crew action; and
• Under the anticipated external and internal airplane environmental conditions in which the equipment and systems must perform as intended.
The proposed language in § 25.1309(a)(1) is consistent with existing FAA guidance
Current § 25.1309(a) requires that all equipment, systems, and installations function properly when installed. However, the proper functioning of non-essential equipment is typically not necessary for safe operation of the airplane. These non-essential systems include passenger amenities such as entertainment displays, audio systems, in-flight telephones, non-emergency lighting, and food storage and preparation.
Proposed § 25.1309(a)(2) would require all equipment and systems not subject to proposed § 25.1309(a)(1) to not have an adverse effect on the safety of the airplane or its occupants, and would allow such equipment to be approved even if that equipment may not perform as intended. Consequently, this proposal would reduce the testing needed for those equipment and systems installations, because they would not need to meet the operational and environmental condition requirements of proposed § 25.1309(a)(1). The proposed § 25.1309(a)(2) would, however, require applicants to test such systems, equipment, and installations to show that their normal or abnormal functioning does not adversely affect the proper functioning of the equipment, systems, and installations covered by proposed § 25.1309(a)(1); and does not otherwise adversely affect the safety of the airplane or its occupants.
No safety benefit is derived from demonstrating that equipment performs as intended, if failing to perform as intended would not impact safety. Instead, the FAA would expect that an applicant perform a qualitative evaluation of the design and installation of such equipment and systems installed in the airplane to determine that neither their normal operation nor their failure would adversely affect crew workload, operation of other systems, or the safety of persons.
The FAA expects normal installation practices to result in sufficiently obvious isolation of the impacts of such equipment on safety that compliance can be based on a relatively simple qualitative installation evaluation. If the possible impacts, including failure modes or effects, are uncertain, or isolation between systems is provided by complex means, then more formal structured evaluation methods or a design change may be necessary. Guidance on performing qualitative evaluations is provided in draft AC 25.1309-1B.
This proposed change would reduce the cost of certification to airplane and equipment manufacturers and modifiers without reducing the level of safety provided by part 25.
Applicants have questioned whether, when showing compliance with § 25.1309, they must consider out-of-service conditions or risks to persons other than the occupants of the airplane. Compliance with § 25.1309 applies to flight operating conditions as well as ground operating conditions, consistent with current practice. Draft AC 25.1309-1B, specifies that compliance is applicable to ground operating conditions when the airplane is in service. An airplane is in service from the time the airplane arrives at a gate or other location for pre-flight preparations, until it is removed from service. While ground operating conditions include conditions associated with line maintenance and refueling, dispatch determinations, embarkation and disembarkation, and taxi, they do not include periods of shop maintenance, storage, or other out-of-service activities. Applicants should also account for threats to people on the ground or adjacent to the airplane during ground operations, electric shock threats to mechanics, and other similar situations.
The ASAWG recommended that a future committee address how applicants should account for systems' exposure to high intensity radiated fields (HIRF) and lightning when showing compliance with § 25.1309(b). The FAA acknowledges that follow-on regulatory or policy action may be necessary to ensure this topic is addressed in a manner that is both effective and practical. This proposed rule and the associated advisory material are not intended to change how type certificate applicants account for systems' exposure to HIRF and lightning when demonstrating compliance with § 25.1309. Historically, considerations of lightning and HIRF in determining failure effects have been limited to specific potential failures of concern, such as failure of protection features, including critical isolation features, that are dedicated to protecting the airplane from the effects of lightning. Under the proposed changes to § 25.1309, applicants would continue to apply § 25.1309 in addressing the effects of HIRF and lightning as described in the prior sentence. Testing and qualitative evaluations may still be used as a means of compliance. Use of lightning and HIRF probabilities in quantitative analyses is also still allowed but not required. The proposed revision to § 25.1309 would not supersede the more specific requirements of §§ 25.1316 and 25.1317.
Proposed § 25.1309(e) would exclude the flight control jams governed by § 25.671 from the proposed single-failure requirement in § 25.1309(b)(1)(ii). The FAA has historically used § 25.671(c) rather than § 25.1309 to regulate the risk of flight control jams. Proposed § 25.671(c) would continue this approach because flight control jams are an unusual failure condition in which the control position is critical to the outcome of the condition. Therefore, specifying a flight control jam as a “single failure” does not fully define the failure condition because the control position is not defined. The current and proposed § 25.671(c) specify that the applicant must evaluate flight control jams at “normally encountered” positions. Additionally, proposed § 25.671(c) would not require evaluation of flight control jams immediately before touchdown if the applicant shows that such jams are extremely improbable, as explained later in this preamble in the section entitled, “Changes to § 25.671(c)(3).” Therefore, this type of failure would be excluded from the prohibition on a single failure being the cause of a catastrophic failure condition under § 25.1309(b)(1)(ii).
Proposed § 25.1309(b) would not apply to single failures in the brake system. Those failures are adequately addressed by § 25.735(b)(1) at amendment 25-107, which limits the effect of a single failure of the brake system to doubling the stopping distance of the brake roll. The diverse
Proposed § 25.1309(f) would also exclude the failure effects addressed by §§ 25.810(a)(1)(v) and 25.812 from § 25.1309(b). The failure conditions relevant to the cabin safety equipment installations addressed by §§ 25.810(a)(1)(v) (escape slides) and 25.812 (emergency lighting) are associated with varied evacuation scenarios for which the probability of occurrence cannot be determined due to the multitude of factors that can lead to an evacuation. For these types of equipment, the FAA has not been able to define appropriate scenarios under which an applicant could demonstrate compliance with § 25.1309(b). The FAA considers it acceptable in terms of safety, to require particular design features or specific reliability demonstrations for these types of equipment and, therefore, the FAA proposes to exclude them from the requirements of § 25.1309(b).
The FAA proposes to revise § 25.901(c) to state that the requirements of § 25.1309 apply to powerplant and APU installations and to list the failures that do not need to comply with § 25.1309(b). Those exceptions, which would be consistent with existing requirements, are engine case burn-through or rupture, uncontained engine rotor failure, and propeller debris release. The FAA specifies those exceptions in proposed §§ 25.901(c) and 25.1309(f). Excepting these failures from § 25.1309(b) would not degrade the level of safety from that required by current regulations. An applicant must already minimize the effects and occurrence rates of these failures when complying with:
• Part 33, “Airworthiness Standards: Aircraft Engines.”
• Part 35, “Airworthiness Standards: Propellers.”
• Paragraph (d)(1) of § 25.903, “Engines.”
• Paragraph (d) of § 25.905, “Propellers.”
• Section 25.1193, “Cowling and nacelle skin.”
This proposed revision would also harmonize § 25.901(c) with CS 25.901(c).
Section 25.1309(c) currently requires that warning information must be provided to the flightcrew to alert them to unsafe system operating conditions, and to enable them to take appropriate corrective action. The FAA proposes to revise § 25.1309(c) to require information be provided to the flightcrew concerning unsafe system operating conditions, rather than requiring only warnings. The proposed revisions to § 25.1309(c) would make the provision compatible with the requirements of current § 25.1322 (“Warning, caution, and advisory lights”), which details requirements for the presentation of warning, caution, and advisory alerts installed on the flight deck. For example, § 25.1322 requires a warning indication if immediate action by a flightcrew member were necessary; however, the particular method of indication would depend on the urgency and need for flightcrew awareness or action that is necessary for the particular failure. The proposed revision to § 25.1309(c) (to remove the requirement for “alert”) would remove an incompatibility with § 25.1322, which allows other sensory and tactile feedback from the airplane caused by inherent airplane characteristics to be used in lieu of dedicated indications and annunciations if the applicant can show such feedback is sufficiently timely and effective to allow the crew to take corrective action.
Proposed § 25.1309(c) would require that applicants design “systems and controls, including indications and annunciations” to minimize crew errors that could create additional hazards. The proposed change would remove a reference to “warnings,” which are addressed in § 25.1322, and instead use the broader phrase “indications and annunciations.” The additional hazards that an applicant's proposed design must minimize, under this proposal, are those that could occur after a failure and those caused by inappropriate actions made by a crewmember in response to the failure. As specified in § 25.1585, any flightcrew procedures necessary to ensure continued safe flight and landing after the occurrence of a failure indication or annunciation must be described in the approved AFM, AFM revision, or AFM supplement, unless the FAA evaluates the procedures and accepts that the procedures are part of normal aviation abilities.
The FAA proposes a new section, § 25.302, that would require an applicant to account for systems, and their possible failure, when assessing the structural performance of its proposed design.
As a result of advances in flight control technology, the structure requirements in part 25 do not provide an adequate regulatory basis to establish an acceptable level of safety for airplanes equipped with systems that affect structural performance such as the electronic flight control system. Earlier automatic control systems usually had two failure states: loss of function and malfunction. Flightcrews could readily detect these conditions. The new electronic flight control systems are more sophisticated and offer advantages that include load limiting and load alleviation.
The LDHWG developed recommendations for design standards for airplanes equipped with systems that, directly or as a result of failure, affect the structural performance of the airplane. Structural performance is the capability of the airplane to meet the structural requirements of part 25.
While the FAA has applied the LDHWG recommendations for design standards to airplane certification programs since 1999 via special conditions, on December 12, 2005, EASA incorporated the design standards developed by the LDHWG into its regulatory framework as CS 25.302 and appendix K of CS-25 at amendment 25/1.
Proposed § 25.302 would apply to all systems that affect structural performance of the airplane. A system affects structural performance if it can induce loads on the airframe, or change the response of the airplane to inputs such as gusts or pilot actions, either when operating normally or as a result of failure. Examples of systems that can affect structural performance are load alleviation systems, modal suppression systems, stability augmentation systems, and fuel management systems, as well as hydraulic, electrical, and mechanical systems.
Proposed § 25.302 would require that an applicant account for the influence of systems, operating normally, when showing compliance with subparts C and D of part 25. The proposed rule would require an applicant to derive limit loads for the conditions specified in subpart C and to account for any behavior or effect of the system on the structural performance of the airplane. This means that the applicant would need to account for any significant nonlinearity, including the rate of displacement of control surfaces, thresholds, or any other system nonlinearities, when deriving limit loads.
Proposed § 25.302 would also require that an applicant shows that the airplane meets the strength requirements of part 25 for static and residual strength, using specified factors to derive ultimate loads from the limit loads. The proposed rule would require the applicant to investigate the effect of nonlinearities beyond limit conditions to ensure that the behavior of the system presents no anomaly compared to the system's behavior below limit conditions.
Proposed § 25.302(a) through (e) would require an applicant to assess the effect of failure conditions on the airplane's structural performance. Proposed § 25.302 would require assessment of all failure conditions not shown to be extremely improbable, or that result from a single failure, as typically determined by the applicant's system safety assessment.
Proposed § 25.302(a) would require that the airplane's design be able to withstand the loads, including control system loads, resulting from failure conditions, at speeds up to V
Proposed § 25.302(b) would require that, in the system-failed state (
The first proposed exception to § 25.302(b) would allow a safety factor of 1.0, rather than 1.5, if the failure condition would be immediately annunciated or otherwise obvious to the flightcrew. The proposed rule would also allow the applicant to take into account any relevant reconfiguration and flight limitations specified in the AFM. The FAA proposes a safety factor of 1.0 in this case because the probability is very low that a design load condition would occur after a system failure on the same flight. The probability of an extreme maneuver (
The second proposed exception to § 25.302(b) would allow a safety factor of 1.25 if the failure condition would not be annunciated but the probability is extremely remote. The FAA proposes a safety factor of 1.25 in this case because the probability is very low that an extremely remote failure condition and a design load condition would occur on the same airplane, even if the failure condition would not be annunciated.
The FAA does not intend for proposed § 25.302 to require an applicant to evaluate every subpart C load condition under every possible failure condition and at each speed, altitude, and payload configuration for which the airplane is designed. Instead, the FAA anticipates that the applicant would first identify those failure conditions that could impact the loads analysis required by subpart C. The applicant would then select load conditions that the applicant presumes could be affected by those failure conditions. Given the appropriate safety factor (1.0, 1.25, or 1.5), the applicant would then determine whether any of these load conditions, when affected by a failure condition, would yield higher loads than the load conditions without the effects of the failure condition. If so, the applicant would expand its analysis, as necessary, to ensure that the requirement of proposed § 25.302 would be met.
Proposed § 25.302(c) would require that, when conducting the damage tolerance evaluation required by § 25.571, the applicant take into account the fatigue loads induced by any failure condition. The rule would require that these fatigue loads be included as part of the typical loading spectra
If a failure condition could affect the airplane's residual strength loads, proposed § 25.302(d) would require the applicant to conduct a residual strength evaluation as specified in § 25.571(b) under the assumption that the failure condition had occurred. The proposed rule would allow an applicant to calculate these loads using at least two-thirds of each of the safety factors specified for the static strength assessment. The applicant would conduct this residual strength evaluation, which assumes a system failure condition has occurred, separately from the normal residual strength evaluation required by § 25.571(b), which does not assume a
Proposed § 25.302 would not apply to the flight control jam conditions covered by proposed § 25.671(c), or the discrete source events already covered by § 25.571(e). Proposed § 25.671(c) and current § 25.571(e) establish criteria to address these specific failures, and the respective ACs, draft AC 25.671-X and current AC 25.571-1D,
Proposed § 25.302(e) would provide structural requirements for dispatch under the master minimum equipment list developed by the applicant. If the list would allow dispatch in a system-failed state, the airplane would need to continue to meet the design load requirements of subpart C in that system-failed state, without any reduction in safety factor. The applicant would be allowed to take into account any relevant operating limitations, including configuration changes, specified for the dispatched configuration. In addition, the airplane would also need to meet § 25.302(a) and (b), accounting for any subsequent single failure, and separately, any combination of failures not shown to be extremely remote.
As noted previously, EASA has incorporated the criteria regarding interaction of systems and structures criteria recommended by the LDHWG into its regulatory framework as CS 25.302 and appendix K of CS-25. Proposed § 25.302 differs from CS 25.302 and appendix K in a number of ways.
The most significant difference between the proposed § 25.302 and CS 25.302 is that the latter defines structural factors of safety and the flutter speed margin on a sliding scale based on probability, while the proposed § 25.302 specifies discrete safety factors and does not change the flutter speed margin currently specified in § 25.629, as described below.
Proposed § 25.302 does not include any aeroelastic stability requirements and would only address the effect of systems on loads requirements. Section 25.629 and CS 25.302 both specify flutter speed margins for failure conditions. The margins in CS 25.302 are based on the probability of the condition's occurrence, while § 25.629 defines a single speed margin for every failure condition regardless of its probability. The FAA believes the current speed margin specified in § 25.629 is adequate, and there is no need to propose more specific failure criteria based on probability of occurrence. The current speed margin specified in § 25.629, which has been in place since Amendment 25-0 of 14 CFR part 25, has proven effective in service.
The FAA's proposal is contained entirely within § 25.302 and does not add a new appendix to part 25. Also, the FAA's proposal would not include the two paragraphs in appendix K of CS-25 that are general in nature and do not contain any specific requirements. These paragraphs, K25.1(a) and (b) of CS-25, discuss application of the requirements in the appendix.
Appendix K of CS-25 includes several paragraphs that require evaluation of the airplane in a system-fully-operative condition. The FAA's proposal would replace those paragraphs with a simpler requirement that the applicant account for the effects of systems when showing compliance with the requirements of subparts C and D. The FAA does not regard this as a substantive difference in the criteria.
For the applicant's assessment of the failure condition at the time the failure occurs, CS 25.302 allows a reduced safety factor, ranging from 1.5 to 1.25, based on the probability of the failure. The FAA's proposal would require a safety factor of 1.5, regardless of the probability of the failure. The FAA determined it's better to define structural strength capability using discrete factors of safety rather than a sliding scale based on probability because probability estimates are not that precise. The FAA also determined the proposed 1.5 safety factor requirement would be easily met by applicants for type certification because systems that affect structural performance are typically passive systems, which alleviate loads rather than initiate loads.
For the assessment of continued flight, after the initial failure condition occurs, CS 25.302 requires the applicant to determine loads for several subpart C load conditions. In contrast, the FAA's proposal would require the applicant to determine loads for any subpart C load condition that would be affected by the failure condition. In addition, CS 25.302 allows a reduced safety factor, ranging from 1.5 to 1.0, based on the probability of the failure condition's occurrence. In contrast, the FAA's proposal would specify a safety factor of 1.5, unless the failure condition would be annunciated, in which case the rule would allow a safety factor of 1.0; or, if the failure condition was extremely remote, the rule would allow a safety factor of 1.25. As noted above, the FAA proposes to use discrete factors of safety rather than a sliding scale based on probability because probability estimates are not that precise. The FAA proposed rule would be simpler to apply than EASA's method because an applicant would use discrete safety factors, rather than sliding scales. For failures that are annunciated, this proposal would be less stringent than CS 25.302, since proposed § 25.302 would allow a safety factor of 1.0 regardless of the probability of failure. However, the FAA's proposal recognizes that annunciation of the failure would limit exposure to a subsequent design load condition to the remainder of the flight. Because of the very low probability of a system failure condition followed by a design load condition occurring on the same flight, the FAA believes a safety factor of 1.0 is appropriate.
Both § 25.571 and CS 25.571 require a “residual strength evaluation” of the airplane that demonstrates structural strength capability in the presence of fatigue cracks and any other anticipated environmental or accidental damage. The residual strength loads used for those evaluations are limit loads (safety factor of 1.0). Proposed § 25.302 would mimic the requirement in CS 25.302 for an additional assessment of residual strength using two-thirds of the loads specified for the continuation of flight. However, these loads would vary between § 25.302 and CS 25.302, as described in the previous paragraph.
CS 25.302 outlines various failure annunciation criteria for affected system failure conditions. The FAA's proposal does not specify annunciation criteria, but instead determines the allowable safety factor based upon whether the failure condition would be annunciated.
CS 25.302 requires that anticipated dispatch configurations meet the strength and flutter aspects of CS 25.302, while accounting for the probability of the airplane being in that configuration. The FAA's proposal would require that the structural strength criteria in the proposed rule—§ 25.302(a) through (b)—be met for the airplane in the dispatch configuration while accounting for any subsequent single failure or any subsequent combination of failures not shown to be extremely remote.
The current regulation for thrust reversals in flight, § 25.933(a)(1), requires that, during any reversal in flight, the engine will produce no more than flight-idle thrust. Additionally, current § 25.933(a)(1) requires an applicant to show that each operable reverser can be restored to the forward thrust position, and that the airplane is capable of continued safe flight and landing under any possible position of the thrust reverser. Proposed § 25.933(a)(1)(ii) would allow an applicant to demonstrate compliance with § 25.1309(b) for these thrust reversing systems.
The application of the current standards has not precluded the loss of airplane control following the unwanted in-flight deployment of the thrust reverser. The investigation of the 1991 Lauda Air accident involving a Boeing Model 767 airplane revealed that an unwanted in-flight thrust reversal at high speeds and high power conditions on an airplane with wing-mounted, high-bypass turbofan engines can result in disruption of air flow over the wing and the loss of lift and controllability. Until this accident, the service history of in-flight thrust reverser deployment incidents indicated that an in-flight thrust reverser deployment at high power would not result in a catastrophic event. However, engine installations on modern transport category airplanes include high—bypass turbofan engines mounted close to the wing, and forward of the wing leading edge, to reduce aerodynamic drag and provide sufficient ground clearance. As a result, these airplanes do not have a sufficient control margin in the event of an unwanted in-flight thrust reversal and, therefore, cannot comply with the rule during all phases of flight.
To allow applicants for type certification flexibility in their design and achieve the intended level of safety, the FAA proposes to allow an applicant to demonstrate using a system safety assessment, per the proposed 14 CFR 25.1309(b), that unwanted deployment of the thrust reverser will not occur in flight. The FAA derived this option, known as the “reliability option,” from the PPIHWG's recommendations.
The PPIHWG evaluated methods used by applicants to assure reliability of other critical systems to determine if applicants could effectively apply the same requirements to thrust reverser systems. The PPIHWG concluded that design features such as redundant locking mechanisms (eliminating catastrophic single failures) in conjunction with more rigorous design and maintenance assessments (reducing exposure to latent failures) can provide a level of safety equivalent to the current rule. The FAA agrees.
Allowing an applicant to develop thrust reversing systems in compliance with § 25.1309, especially by reducing those systems' exposure to SLFs, would improve the level of safety because unwanted in-flight thrust reverser deployments would not be expected to occur during the entire operational life of all airplanes of one type, and eliminate the need for flightcrew procedures in response to an in-flight thrust reversal. Proposed § 25.1309 would provide a level of safety at least equivalent to current § 25.933(a)(1)(ii). This reliability option would allow an applicant to use a more practical approach to show compliance in all phases of flight for all known engine installations.
This proposal is consistent with the FAA's current practice because the FAA has been implementing the PPIHWG's recommendations through ELOS findings on specific projects since 1994. The FAA has accepted SSAs that show that in-flight thrust reverser deployment is extremely improbable as an alternative to flight tests that show full controllability across the entire flight envelope. The FAA has also accepted a combination of these two methods to allow applicants for type certification more flexibility when demonstrating an ELOS. For example, within that portion of the flight envelope where controllability cannot be shown, applicants have shown that the probability of an unwanted in-flight thrust reversal is extremely improbable. Conversely, applicants who have shown compliance primarily using the reliability option have shown that there are portions of the flight envelope where the airplane is controllable, and an unwanted in-flight deployment can be classified as less severe than catastrophic. This mixed approach has allowed applicants more flexibility in the thrust reverser system design and maintenance intervals than under the traditional rule. Under current ELOS determinations, applicants select either option, or combine them, to achieve the level of safety intended by the rule. With this proposal, the FAA regulations would continue to allow such combinations, but without the need for an ELOS. This will result in increased efficiency for both the FAA and the industry in certification programs, without impacting the level of safety established by § 25.933(a)(1).
Based on the PPIHWG's recommendations, the FAA also proposes that the current requirements in § 25.933(a)(1)—that each operable reverser can be restored to the forward thrust position, and that during any reversal in flight the engine will produce no more than flight-idle thrust—would no longer be necessary given the other proposed changes to this section. If a design can meet § 25.1309(b) without these features, then they need not be mandatory. Further, in accordance with proposed § 25.1309(a), any properly functioning thrust reverser would be required to respond appropriately to all anticipated flightcrew commands.
The current design and failure criteria for flight control systems, in § 25.671(c), were largely derived from Civil Air Regulations 4b.320, which preceded the current 14 CFR part 25 standards established in 1965. The FAA updated those requirements in amendment 25-23 (35 FR 5674, April 8, 1970) to account for automatic and powered flight control technology improvements and to consolidate the failure criteria
Section 25.671(c) requires that the airplane be capable of continued safe flight and landing following the failure conditions listed in § 25.671(c)(1) and (2) and the jamming conditions in § 25.671(c)(3).
Paragraph (c)(1) of § 25.671 requires an applicant to show continued safe flight and landing following any single failure.
Paragraph (c)(2) requires the applicant to show continued safe flight and landing following any combination of failures not shown to be extremely improbable. Paragraph (c)(2) also includes examples of failures that must be evaluated.
The FAA proposes to remove the flight control system failure criteria in § 25.671(c)(1) and (2), including the examples of specific failures that must be evaluated, and instead require safety assessment of flight control systems to be regulated by § 25.1309. Section 25.1309 would be used to address the flight control SSA, except with regard to jamming. The FAA also proposes to retain the examples in § 25.671(c)(2) as failures, that must be considered in showing compliance with § 25.629 as discussed later in this preamble (section I.A.2).
Finally, current § 25.671(c) requires that probable failures have only minor effects and be capable of being readily counteracted by the pilot. The FAA proposes to remove this requirement because its effect on safety would be covered by proposed § 25.1309. Proposed § 25.1309 would require that each major failure condition be remote, which means that probable failures (more likely than remote) must have only minor effects (must not be major).
Section 25.671(c)(3) requires that an applicant evaluate any jam in a control position normally encountered, as well as runaway
The flight control jams requirement in § 25.671(c)(3) has generated debate about the meaning of a “normally encountered” control position. This phrase came under scrutiny after two Boeing Model 737 accidents, and the FAA and NTSB investigations that followed.
Draft AC 25.671-X would explain that the FAA considers “normally encountered” positions as the range of control surface deflections, from neutral to the largest deflection expected to occur in 1,000 random operational flights, without considering other failures. The AC would also provide guidance for performance based criteria that define environmental and operational maneuver conditions, and the resulting deflections that could be considered normally encountered positions.
A second compliance issue related to § 25.671(c)(3) stems from an applicant's use of probability analysis to show that a jam, or a runaway and jam, is “extremely improbable.” Section 25.671(c)(3) requires the airplane to be capable of continued safe flight and landing after experiencing jamming conditions, including runaway of a flight control surface and subsequent jam, unless the jamming condition is shown to be extremely improbable or the jam can be alleviated. While current § 25.671(c)(3) allows the use of probability analysis, applicants have generally been unable to demonstrate that jamming conditions are “extremely improbable,” except for conditions that occur during a very limited time just prior to landing. Therefore, the FAA proposes to revise § 25.671(c) to require that the applicant's safety assessments assume that the specified jamming conditions will occur, regardless of those conditions' probability. The FAA also proposes to exclude jamming conditions that occur immediately before touchdown if these can be shown to be extremely improbable. For jams that occur just before landing, some amount of time and altitude is necessary in order to recover, and there is no practical means by which a recovery can be demonstrated. Therefore, the applicant would be allowed to show such a jamming condition is extremely improbable based on the limited time exposure.
The FAA also proposes to revise § 25.671(c) to define the types of jams that must be evaluated as those that result in a flight control surface or pilot control that is fixed in position due to a physical interference.
Proposed § 25.671(c) would also require that, in the presence of a jam evaluated under that paragraph, any additional failure conditions that could prevent continued safe flight and landing must have a combined probability of less than 1/1000. This is to ensure adequate reliability of any system necessary to alleviate the jam when it occurs.
Lastly, the FAA proposes to remove the requirement to account for a runaway of a flight control surface and subsequent jam. The FAA does not believe it is necessary to include this requirement in § 25.671 because the SSA required by § 25.1309 would account for any failure condition that leads to a runaway of a flight control surface. Runaways of flight control surfaces will be evaluated under § 25.1309 regardless of whether they are due to an external source, such as a foreign object or control system icing, or due to failures that are internal to the flight control system.
The FAA proposes to revise § 25.671(a) to add a requirement that the flight control system continue to operate and respond as designed to commands, and not hinder airplane recovery, when the airplane experiences any pitch, roll, or yaw rate, or vertical load factor that could occur due to operating or environmental conditions, or when the airplane is in any attitude. This would ensure there are no features or unique
The FAA proposes to revise § 25.671(b) to require that the system be designed or marked to avoid incorrect assembly that could result in “failure of the system to perform its intended function,” rather than in the “malfunctioning of the system.” The FAA also proposes to revise § 25.671(b) to restrict the use of such marking to cases in which compliance by design means is impractical. The objective of these proposed changes is to ensure that the system performs its intended function.
Section 25.671(d) requires that the airplane remain controllable if all engines fail. The FAA proposes to revise this section to require that not only must the airplane be controllable following failure of all engines, but that an approach and flare to a landing and controlled stop must also be possible, assuming that a suitable runway is available. The proposed rule would also apply the requirement to the failure of all engines at any point in the flight. The FAA also proposes to make the last sentence of § 25.671(d) active voice by changing it from “Compliance with this requirement may be shown by analysis where that method has been shown to be reliable,” to “The applicant may show compliance with this requirement by analysis where the applicant has shown that analysis to be reliable.” This revision would not change the substance of the requirement.
The FAA also proposes to add a new paragraph (e) to § 25.671, which would require that the flight control system indicate to the flightcrew whenever the primary control means are near the limit of control authority. On airplanes equipped with fly-by-wire control systems, there is no direct tactile link between the flightdeck control and the control surface, and the flightcrew may not be aware of the actual control surface position. If the control surface is near the limit of control authority, and the flightcrew is unaware of that position, it could negatively affect the flightcrew's ability to control the airplane in the event of an emergency. The flight control system could meet this requirement through natural or artificial control feel forces, by cockpit control movement if shown to be effective, or by flightcrew alerting that complies with §§ 25.1309(c) and 25.1322.
The FAA also proposes to add a new paragraph (f) to § 25.671, which would require that the flight control system alert the flightcrew whenever the airplane enters any mode that significantly changes or degrades the normal handling or operational characteristics of the airplane. On some flight control system designs, there may be submodes of operation that change or degrade the normal handling or operational characteristics of the airplane. Similar to control surface awareness, the flightcrew should be made aware if the airplane is operating in such a submode.
The FAA derived the requirements of proposed § 25.671(e) and (f) from its experience certifying applications for fly-by-wire systems. The proposed requirements summarized in this section for revision to § 25.671 have been applied on numerous programs through ELOS findings. Codifying these requirements in part 25 would result in increased efficiency for both the FAA and the industry in certification programs, without impacting the level of safety.
Section H25.4(a) of appendix H to part 25 requires that airworthiness limitations within the ICA reside in a segregated and clearly distinguishable section titled “Airworthiness Limitations section.” The ALS is required to include mandatory maintenance actions approved by § 25.571 for damage tolerant structures, by § 25.981 for fuel tank systems, and by § 25.1701 for the electrical wiring interconnection system (EWIS). However, section H25.4 does not include the maintenance actions typically established during the certification process as CMRs, using the guidance in AC 25-19A,
AC 25.1309-1A provides guidance for an applicant to include maintenance actions when it shows compliance with § 25.1309, and AC 25-19A provides guidance on the selection, documentation, and control of CMR to implement such maintenance actions. CMRs, when properly implemented, are required tasks to detect safety significant failures that would, in combination with one or more other failures, result in a hazardous or catastrophic failure condition. CMRs are developed to show compliance to § 25.1309, and other regulations requiring safety analyses such as §§ 25.671, 25.783, 25.901, and 25.933. As described in AC 25-19A, establishing CMRs is not always necessary if there is another suitable method to identify the needed maintenance task to prevent a failure condition from developing.
In practice, industry and the other certification authorities have treated CMRs as equivalent to airworthiness limitations. CMRs are currently considered by operators as the systems counterpart to the airworthiness limitations for primary structures, fuel tank systems, and EWIS. However, unlike these airworthiness limitation items, the CMRs do not have a regulatory basis upon which to standardize their development. Airworthiness limitations for systems that have hazardous and catastrophic failure effects are just as relevant to the safety of the airplane as the airworthiness limitations currently required for fuel tank systems, EWIS, and damage tolerant primary structures. Many applicants have been voluntarily including CMRs in the ALS of the ICA.
Based on the forgoing, the FAA proposes to revise § 25.1309(d) to require the applicant to establish CMRs to prevent development of the failure conditions described in § 25.1309(b). Section 25.1309(d) would require these maintenance requirements to be included in the ALS of the ICA required by § 25.1529. This proposal would codify current industry practice the FAA has accepted as a means of compliance with § 25.1309 and other system safety regulations, for many years.
In addition, the type certification process often results in the establishment of CMRs for systems that are not regulated by § 25.1309 (for example, a CMR may be established for flutter prevention under § 25.629). To provide a common regulatory basis for such CMRs, including those established
The FAA proposes to remove current § 25.1309(d). Section 25.1309(d) currently requires an applicant to show that a design complies with § 25.1309(b) by using analysis, and where necessary, ground, flight, or simulator testing. Section 25.1309(d) also describes the features that the applicant's analysis must consider.
The FAA reconsidered the requirement in § 25.1309(d) and concluded that this requirement is no longer needed within the regulatory text, since it specifies a particular, yet incomplete, process for compliance with § 25.1309(b). This conclusion is consistent with the SDAHWG recommendation to remove § 25.1309(d) and place the process for compliance with § 25.1309(b) into non-mandatory guidance material. Removing these steps from the regulation is not intended to alter the evaluations required by § 25.1309(b). Instead, it is intended to reflect that § 25.1309(b) provides performance-based requirements for which the methods of compliance should be appropriate to the particular system. In addition, the current § 25.1309(d) provides an incomplete list of considerations, and other, equally important factors may need to be included in the applicant's proposed assessments. These factors can include environmental conditions, complexity of the design, common cause of multiple failures, flightcrew capability and workload, and safety margin after a failure, all of which will vary for each application and which the FAA will discuss in the accompanying draft guidance.
Because § 25.1309(d) would no longer prescribe specific methods for demonstrating compliance with § 25.1309(b), the FAA also proposes to remove the reference to § 25.1309(d) from § 25.1365(a). This change would not affect the level of safety provided by the current rule, because § 25.1365(a) would continue to reference the requirements of § 25.1309(b). This proposal would harmonize § 25.1365(a) with CS 25.1365(a).
This proposal would relocate several specific failures from § 25.671(c)(2) to the aeroelastic stability requirements of § 25.629. Section 25.671(c)(2) specifies examples of failure combinations that must be evaluated, including dual electrical and dual hydraulic system failures, and any single failure combined with any probable hydraulic or electrical failure. Section 25.629(d)(9) currently requires that the airplane be shown to be free from flutter considering various failure conditions considered under § 25.671, which includes those failure conditions specified in § 25.671(c)(2). The FAA is proposing to remove those examples from § 25.671(c)(2) in conjunction with related changes to § 25.1309 described in section III.E of this preamble. However, the specific failure conditions identified in § 25.671(c)(2) have provided an important design standard for dual actuators on flight control surfaces that rely on retention of restraint stiffness or damping for flutter prevention. Therefore, this proposal relocates these failure conditions from § 25.671(c)(2) to the aeroelastic stability requirements of § 25.629(d). This change would not affect the level of safety provided in current §§ 25.671(c)(2) and 25.629(d).
Section 25.629(b) requires the airplane to be free from aeroelastic instability for “all configurations and design conditions” within the speed and altitude envelopes specified in § 25.629(b)(1) and (2). Such design conditions include the range of load factors within the normal flight envelope. The normal flight envelope is defined in § 25.333. Therefore, this proposal would specify that the aeroelastic stability envelope includes the range of load factors specified in § 25.333.
The FAA proposes to remove paragraph (b) from § 25.1301 and to remove paragraph (f) from § 25.1309. Section 25.1301(b) requires that a proposed airplane's EWIS meet the requirements of subpart H of part 25. Subpart H was created (at amendment 25-123, in 2007) as the single place for the majority of wiring certification requirements. The references in §§ 25.1301(b) and 25.1309(f) are redundant and unnecessary because subpart H specifies its applicability. The FAA has determined that such redundancy is not needed because the subpart H requirements can stand alone.
The FAA proposes to remove paragraph (e) from § 25.1309. The requirements of paragraph (e) concern compliance with § 25.1309(a) and (b) for electrical system and equipment design. The requirements of paragraph (e) are unnecessary because they are redundant to the general risk assessment of § 25.1309 and to §§ 25.1351 through 25.1365 specifically related to electrical systems.
During the development of this proposed rule, the FAA considered two relevant petitions for rulemaking submitted in 1986. Summaries of these petitions were published in the
The FAA has drafted three new ACs and revisions to two existing ACs to provide guidance material for acceptable means, but not the only means, of showing compliance with the regulations proposed for revision by this NPRM. The FAA will post the draft ACs in the docket and on the “Aviation Safety Draft Documents Open for Comment” web page at
• AC 25.671-X,
• AC 25.901-X,
• AC 25.933-X,
• AC 25.629-1C,
• AC 25.1309-1B,
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of the proposed rule. The FAA suggests readers seeking greater detail read the Regulatory Impact Analysis in the docket for this rulemaking.
In conducting these analyses, the FAA determined that this proposed rule (1) has benefits that justify its costs; (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; (3) would not have a significant economic impact on a substantial number of small entities; (4) would not create unnecessary obstacles to the foreign commerce of the United States; and (5) would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.
The predominant cost impact of this proposed rule results from proposed requirements addressing catastrophic dual failures (CSL+1), where the first failure is latent (unknown until discovered by crew or maintenance personnel), which, in combination with a second active failure, results in a catastrophic accident. Without the rule, unsafe conditions in service associated with potential CSL+1 failure conditions would continue to be addressed, after certification, by airworthiness directives (ADs).
The FAA finds all other provisions of this proposed rule to be cost beneficial or to have zero or minimal cost.
Applicants for type certification, and operators, of part 25 airplanes are potentially affected by this proposed rule.
• The FAA uses three percent and seven percent discount rates to estimate present value and annualized costs and cost savings based on OMB guidance.
• Source: Airplane certification costs,
•
• The period of analysis for large airplanes is 23 + 28 = 51 years to account for a product life cycle determined by a 23-year production period and a 28-year service period. The period of analysis for business jets is 28 + 30 = 58 years to account for a product life cycle determined by a 28-year production period and a 30-year service period.
• Average flight hours per year: Large part 25 airplanes—3,000, Source: FlightGlobal's FlightFleets Analyzer,
To calculate the compliance costs for new U.S. certifications, the FAA assumes that all new certifications will be approved one year after the effective date of the rule, with production beginning one year later. Using an airplane life cycle model detailed in the Regulatory Impact Analysis available in the docket, for large part 25 airplanes (large transports) the FAA bases compliance costs on 2 new certificates, delivery of 24 airplanes per certificate per year to U.S. operators, production runs of 23 years, and an airplane retirement age of 28 years. The costs of compliance for large transports are calculated over an airplane life cycle of 51 years (the period from first delivery to last retirement), beginning in year 1 and ending in year 51. The small part 25 airplane category is a business jet category. For part 25 business jets, the FAA bases compliance costs on 2 new certificates, delivery of 21 airplanes per
Unit industry cost estimates for the specific risk rule, § 25.1309(b)(5), were provided by the ASAWG in its report, “Specific Risk Tasking.”
The FAA adjusted Boeing's engineering cost estimate by taking into account the extent to which voluntary ELOS actions for the Boeing Model 787 already address the problems of potential CSL+1 dual catastrophic failures. This adjustment allows the FAA to reduce Boeing's estimate to 13.3 percent of its reported value. This large adjustment reflects the importance of two factors: (1) the ELOS action for flight control systems—the FAA estimates that flight control systems constitute 60 percent of existing potential CSL+1 failure conditions, and (2) that 25 percent of potential CSL+1 failure conditions have already been addressed.
Moreover, for the few CSL+1 combinations not already meeting the proposed rule, no hardware change would be necessary as only the inspection intervals would be affected. Accordingly, expected hardware costs and fuel burn costs are reduced to zero, leaving only non-recurring engineering costs and maintenance costs.
Large transports and business jets have similar system safety architectures because they both meet the “no single failure” and “extremely improbable” (10
With these adjustments, industry unit cost estimates are shown in table 3 below, along with a summary of the production life cycle data. See the Regulatory Impact Analysis available in the docket for more detail on the industry unit cost estimates.
Employing these unit cost estimates in the airplane life cycle model referred to above, the FAA estimates the costs of the specific risk rule over the large transport and business jet life cycles and show the results by major cost component in table 4 below.
As discussed more fully in the Regulatory Impact Analysis available in the docket for this proposed rule, the proposed specific risk rule would (1) eliminate the risk of CSL+1 failure conditions by requiring additional redundancy, or (2) limit the risk of CSL+1 failure conditions by limiting the probabilities of the dual latent and active failures. CSL+1 failure conditions probably caused three accidents, which resulted in the destruction of the airplane and the fatalities of all passengers and crew. These accidents were Lauda Air Flight 004 (Boeing Model 767) in 1991, resulting in the fatalities of 233 passengers and crew; USAir Flight 427 (Boeing Model 737) in 1994, resulting in the fatalities of 132 passengers and crew; and the earlier United Airlines Flight 585 (Boeing Model 737) in 1991, resulting in the fatalities of 25 passengers and crew.
For the Lauda Air accident, the Thai investigating committee found the probable cause to be an uncommanded in-flight deployment of the airplane's left engine thrust reverser, resulting in loss of airplane control. The airplane was equipped with a double lock thrust reverser system that operated as follows. If a pilot wanted to deploy the thrust reversers, he or she raised the thrust reverser lever, which set the directional control valve (DCV) (1st lock) to the deploy position and opened the hydraulic isolation valve (HIV) (2nd lock), allowing hydraulic pressure to open the thrust reverser door. The investigating committee found that one likely cause of uncommanded deployment was contamination of the DCV that made it susceptible to increased pressure on its deploy side (latent failure). When the HIV inadvertently opened due to a short circuit (active failure), hydraulic pressure became available to the susceptible DCV causing a change in the valve position from “stow” to “deploy” with consequent deployment and the catastrophic accident. Once discovered, this potential CSL+1 failure condition was eliminated by an AD action mandating an additional valve (3rd lock). (Please see the Regulatory Impact Analysis available in the docket for discussion of the CSL+1 failure conditions that the NTSB concluded to be the probable cause of the USAir Flight 427 and United Airlines Flight 585 accidents.)
The FAA finds that, if the specific risk rule had been in effect, the likelihood of these accidents occurring would have been reduced. Since the FAA has already issued ADs to prevent reoccurrence of these CSL+1 accidents, the FAA does not use them in estimating benefits from this rule. However, without the rule, unsafe conditions in service associated with potential CSL+1 failure conditions would continue to be addressed by ADs. Accordingly, the costs of the ADs avoided because of the rule would be benefits of the rule in the form of cost savings. The FAA first provides an overview of the benefits estimation, and then provides the details.
For the ten-year period of 2008 to 2017, the FAA searched for all new (including superseding) ADs that were associated with potential CSL+1 failure conditions and found 15 such ADs. In order to simplify the analysis, the cost of an AD was estimated based only on the basic wage and cost of materials data provided in the AD (or referenced service bulletins) for required inspections or repairs/replacements, for all airplanes that were affected by the AD. As in the cost section above, the FAA updated cost to 2021 dollars. Since labor costs were given in hours as well as in current dollars, labor costs were particularly easy to update since the FAA could simply use labor hours and the 2021 AD wage rate of $85 per hour.
Table 5 shows cost of each of the 15 ADs that were associated with potential CSL+1 failure conditions. For each AD, the table provides the following information:
• AD No.;
• Effective date of the AD;
• Airplane Model;
• PV AD Cost ($2021);
• The potential CSL+1 failure condition; and
• Required AD Actions.
Airworthiness Directive No. 8 is split into two results because, after an initial AD was issued and complied with, it was later determined that a wider range of part numbers should have been checked, which meant re-inspection for a large number of airplanes that had already been inspected. So No. 8a shows the costs for the number of airplanes the FAA estimates have already been checked in the initial AD, while No. 8b
Airworthiness Directives Nos. 1, 2, 4 and 15a are the four ADs with recurring actions lasting the lifetime of the airplanes. The total present value costs for these ADs were calculated using AD unit cost data and individual airplane data from the Aircraft section of FlightGlobal's FlightFleets Analyzer. For each airplane already in the affected fleet at the AD's effective date, costs were calculated for the remaining years of an assumed 28-year life, with yearly costs discounted back to the AD's effective date but valued in 2021 dollars. For each airplane entering the affected fleet after the AD's effective date, costs were calculated for its entire assumed 28-year life with an additional discount factor for time between the AD's effective date and the in-service date of the airplane. Actual life was used instead of a 28-year life if airplanes were retired (or written off) early. Data for August 2018 was used for AD Nos. 1, 2 and 15a. But for AD No. 4, data as of the AD's effective date, September 26, 2012, was used in order to simplify the calculations. The affected model—Boeing Model 757—ended production in 2004, so few, if any, additional airplanes would be entering the affected fleet after the AD's 2012 effective date, and fewer of the affected airplanes would have to be retrieved from the “Retired/Written Off” file than if a more recent date was used.
The FAA notes that all 15 ADs apply to large transport airplanes and none apply to business jets. This result is not surprising, since part 25 business jets account for a small percentage of the total flight hours for part 25 airplanes. Given the FAA's assumptions, the life cycle airplane model estimates that part 25 business jets account for just 10.3 percent of all part 25 flight hours. This particular result does not mean that CSL+1 failure conditions cannot occur on part 25 business jets. In fact, while this regulatory evaluation was being written, an immediate final rule AD was published
As table 5 below shows, total AD costs sum to $64,195,574. The avoidance of these costs are benefits that the FAA used to estimate benefits of the proposed specific risk rule. Over the period of AD selection, 2008 to 2017, however, there were, on average, approximately six new airplane models brought to the market by U.S. manufacturers. Since the FAA estimated the costs of the proposed rule assuming two new model certifications, in order to make the estimate of the value of avoided ADs comparable, the FAA divided these costs by three. The FAA then divided the adjusted costs by 10 to estimate the average annual AD costs over the 10-year sample period. Finally, recognizing that no rule is perfectly effective, the FAA estimated that the proposed rule would be 90 percent effective and, accordingly, reduce the annual estimates by 10 percent. These reduced annual estimates are then used in the life cycle airplane model to estimate the benefits of the proposed rule in a manner analogous to the estimate of the costs of the proposed rule. Dividing $64,195,574 by 3 × 10 = 30 and multiplying by 90 percent, the FAA obtained an estimate of average annual benefits of $2,139,852. This then is the estimate of the average annual value of the ADs that will be avoided over the 51-year life cycle of our two airplane models as a result of the proposed specific risk rule. The present value of $2,139,852 for 51 years can be calculated with the present value annuity formula, PVA = C [1-1/(1+r)
In table 6 below, the FAA summarizes the costs and benefits of the proposed specific risk rule. As the table shows, the proposed rule is cost-beneficial with present value cost savings of $24.6 million far exceeding present value costs of $15.8 million. Net cost savings are $8.8 million in present value. A similar analysis at a 3 percent discount rate finds present value cost savings to be $43.6 million, exceeding $31.7 million in present value costs, and resulting in $11.9 million in net cost savings.
In section I.A.5 above, the FAA undertook the cost benefit analysis of the proposed specific risk rule, § 25.1309(b)(5). This section discusses the remaining paragraphs of § 25.1309.
The proposed rule would revise § 25.1309(a) into two paragraphs. Proposed § 25.1309(a)(1) would revise the applicability of the § 25.1309(a) requirement that equipment and systems perform their functions as intended. Proposed § 25.1309(a)(1) clarifies that it applies to any equipment or system installed in the airplane, and whose improper functioning would reduce safety, regardless of whether it is required for type certification, operating approval, or is optional equipment. As this requirement merely harmonizes with EASA's corresponding requirement, with which part 25 manufacturers are already in compliance, there is no additional cost. However, the requirement has the minimal benefits of the reduced cost of joint harmonization and, therefore, would be cost beneficial.
Along with an associated change to § 25.1301,
The current rule requires airplane systems and associated components be designed so that any failure condition that would prevent the continued safe flight and landing of the airplane (catastrophic failure condition) is “extremely improbable,” a condition specified in current AC 25.1309-1A as having a probability on the order of ≤10
The current rule requires any failure condition that would reduce the capability of the airplane or the ability of the crew to cope with adverse operating conditions to be “improbable” (on the order of 10
Proposed § 25.1309(b)(4) specifies criteria that would apply to any SLF. The purpose of proposed § 25.1309(b)(4) is to limit SLFs whenever practical so as to limit conditions where the airplane is one failure away from a hazardous or catastrophic accident.
It is already industry practice to eliminate SLFs when practical, as required by proposed § 25.1309(b)(4)(i); therefore, the proposal would entail no additional cost. In any case, proposed § 25.1309(b)(4) is cost beneficial because proposed paragraph (4)(i) is limited by paragraph (4)(ii) and, further, under § 25.1309(b)(4)(iii), both paragraphs (4)(i) and (b)(4)(ii) are not required when impractical.
Section 25.1309(c) would continue to require that the flightcrew be provided with information concerning unsafe system operating conditions. Section 25.1322 would continue to require that alerting be provided. The only proposed change in this rule is to remove the conflict with § 25.1322,
Proposed § 25.1309(d) would be a new rule requiring that CMRs be established, as necessary, to prevent catastrophic and hazardous failure conditions described in proposed § 25.1309(b). The proposed rule also would require these CMRs to be contained in the ALS of the ICA required by § 25.1529. This latter requirement is an industry recommendation via the SE-172 Taskforce to CAST
Both of these proposed requirements would codify industry practice and would harmonize with EASA's changes to CS 25.1309 and H25.4, and so would entail no additional costs. However, the requirements would have the benefits of reduced joint harmonization costs and, therefore, would be cost beneficial.
Since industry has been meeting the proposed criteria in paragraphs (a), (e), and (f) under special conditions since the early 1980s, the FAA believes that these proposed criteria are now met at minimal cost. The modification to § 25.671(d) clarifies that controllability includes the capability to flare to a landing and controlled stop. The FAA believes that if the airplane is controllable, the manufacturer will be able to meet the requirement for flare and braking capability at minimal cost. The FAA requests comments on these findings.
Section 25.671(b) would be revised to allow distinctive and permanent marking to minimize the probability of incorrect assembly only when design means are impractical. This revision was recommended by the FCHWG. It is expert consensus that the physical prevention of misassembly by design is safer than reliance on marking, which can be overlooked or ignored. Since distinctive and permanent marking to minimize the probability of incorrect assembly is disallowed only when design means are practical, the expected gain in safety benefits from the reduced probability of incorrect assembly would be greater than the costs of the proposed revision. The FAA requests comments on its finding that this provision is cost-beneficial.
The FAA proposes to revise § 25.671(c). Current § 25.671(c)(1) and (c)(2) would be removed, because the applicability of § 25.1309 would be clarified to be any equipment or system as installed on the airplane, so it would apply to flight control systems and would accomplish the safety objective of § 25.671(c)(1) and (c)(2). Proposed 25.671(c) differs from the current rule as follows:
• Proposed § 25.671(c) addresses only jams that are due to a physical interference, for example, foreign or loose object, system icing, corroded bearings, etc. (Jams due to other reasons are covered by § 25.1309.)
• Proposed § 25.671(c) does not allow jams to be considered extremely improbable, except those jams that occur just before landing.
• Proposed § 25.671(c)(3) specifies that, given a jam due to a physical interference, the combined probability is less than 1/1000 that any additional failure conditions could prevent continued safe flight and landing. As the main intent of § 25.671(c)(3) is to limit the probability of a latent failure of any jam alleviation device (such as a breakout device), § 25.671(c)(3) is largely redundant to the proposed § 25.1309(b)(5) latent risk requirement.
• Proposed § 25.671(c) would no longer address a runaway of a flight control surface and subsequent jam as such jams would be adequately addressed by proposed § 25.1309.
As proposed § 25.671(c) has been used by many manufacturers as an ELOS, the FAA believes its use is current practice. Accordingly, there are no additional costs (or benefits) from § 25.671(c)(1). The FAA requests comments on this conclusion.
Proposed § 25.901 would specify that § 25.1309 applies to powerplant installations, as it does for all airplane systems. Accordingly, the current provision in § 25.901(c) prohibiting catastrophic single failures or probable combinations of failures would be removed. Applicant requirements would not change as a result of this revised rule. The proposed revision would harmonize § 25.901(c) with EASA's corresponding CS 25.901(c). Accordingly, the proposed revision would be cost-beneficial as it entails no additional cost but has benefits from the reduced costs of joint harmonization.
Proposed § 25.933(a)(1)(i) retains, as an option, the “controllability” standard of the current rule. Proposed § 25.933(a)(1)(ii) is an additional, “reliability,” option. The service history of airplanes certified under the current rule—most prominently, the Lauda Air accident—demonstrates that the fail-safe intent of the controllability requirement had not been achieved.
The PPIHWG recommended adding the reliability option, concluding that applicants should be allowed to select the most suitable option for their particular type designs or failure conditions addressed. This option is especially valuable given its improvement implied by the proposed revision to § 25.1309.
Proposed § 25.302 would be a new rule that would incorporate, with some modifications, the criteria the LDHWG recommended in December 2000, and the FCHWG in September 2002. EASA has already incorporated the criteria developed by the LDHWG into CS 25.302 and appendix K of CS-25.
The proposed rule would specifically address any system failure condition considered under § 25.1309 that can affect the structural performance of the airplane. Systems affect structural performance if they induce loads on the airframe or if they change the response of the airplane to inputs such as gusts or pilot actions, either directly or as a result of failure. Systems that affect structural performance are flight control computers, autopilots, stability augmentation systems, load alleviations systems, and fuel management systems. The proposed rule would also apply to hydraulic systems, electrical systems, and mechanical systems.
U.S. part 25 manufacturers already comply with EASA's CS 25.302, which went into effect in November 2004. Accordingly, the costs of compliance with the FAA's proposed § 25.302 depends on the extent to which it harmonizes with CS 25.302. If the provisions of proposed § 25.302 are identical with, less onerous than, or, more generally, satisfied by, the provisions of CS 25.302, then compliance with CS 25.302 would also mean compliance with proposed § 25.302. This harmonization means U.S. part 25 manufacturers would incur no incremental compliance costs. If the provisions of proposed § 25.302 are more onerous than, or, more generally, not satisfied by, the provisions of CS 25.302, then manufacturers would incur incremental compliance costs.
The FAA now assesses the benefits and costs of proposed § 25.302 by section:
For the assessment of the initial failure condition, EASA's CS 25.302 allows the safety factor to decline linearly from 1.5 to 1.25 as the probability of failure declines from 10
CS 25.302 requires that loads be determined for several CS-25 design load conditions, whereas the FAA proposal would require that loads be determined for any design load condition that would be affected. CS 25.302 requires a safety factor of 1.5 for a failure condition with a failure rate above 10
The FAA proposal specifies a safety factor of 1.5 but would reduce the safety factor to 1.0 if the failure condition is annunciated, because the probability of an extreme maneuver would be reduced as the pilot would be aware that a failure condition had occurred. The FAA would reduce the safety factor to 1.25 if the failure condition is extremely remote (probability of the order of ≤10
The FAA proposal is more conservative, however, in applying to all load conditions specified in subpart C, with the possible result of higher engineering, hardware, and operating compliance costs relative to EASA requirements. Nevertheless, the FAA believes that the safety benefits would continue to outweigh the costs. The FAA requests comments on this conclusion.
This proposed rule would require the residual strength evaluation be conducted according to § 25.571—the fatigue and damage tolerance rule—and it, therefore, assesses the residual strength load conditions in § 25.571, rather than the load conditions listed in CS 25.302. This proposed change would result in little or no increase in workload and, consequently, would have minimal cost because manufacturers already use the § 25.571 process and because the differences in load conditions between the two provisions are not significant. The FAA requests comments on this finding.
CS 25.302 requires that anticipated dispatch configurations be addressed by meeting the strength and flutter aspects of CS 25.302 taking into account the probability of being in that configuration. CS 25.302 includes: “Flight limitations and expected operational limitations may be taken into account in establishing . . . the combined probability of being in the dispatched failure condition and the subsequent failure condition for the safety margins . . . . ”
In contrast, the FAA proposal is simpler, less onerous, and involves less
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify, and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
All U.S. manufacturers (applicants for type certification) of large transports or part 25 business jets are large companies with more than 1,500 employees or are subsidiaries of large companies so-defined and, therefore, are not classified as small entities by the Small Business Administration.
If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, as provided in section 605(b), the head of the FAA proposes that this proposed rulemaking would not result in a significant economic impact on a substantial number of small entities. The FAA requests comments on this determination.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
The FAA has assessed the effect of this proposed rule and determined that its purpose is to ensure the safety of U.S. civil aviation. Therefore, this proposed rule is in compliance with the Trade Agreements Act.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.
In January of 2020, EASA published CS 25 amendment 24, which bore many similarities to this proposal, including added criteria for latent failures in CS 25.1309.
FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6 and involves no extraordinary circumstances.
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have federalism implications.
The FAA analyzed this proposed rule under Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May
Executive Order 13609, “Promoting International Regulatory Cooperation,” (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609 and has determined that this action would have no effect on international regulatory cooperation.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
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 file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
Confidential Business Information: Confidential Business Information (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 Suzanne Masterson, Strategic Policy Transport Section, AIR-614, Strategic Policy Management Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, WA 98198; email
An electronic copy of rulemaking documents may be obtained from the internet by—
1. Searching the Federal eRulemaking Portal at
2. Visiting the FAA's Regulations and Policies web page at
3. Accessing the Government Printing Office's web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the internet through the Federal eRulemaking Portal referenced in item (1) above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702 and 44704.
(a) For the purposes of this part, the following general definitions apply:
(1)
(2)
(b) For purposes of this part, the following failure conditions, in order of increasing severity, apply:
(1)
(i) A significant reduction in safety margins or functional capabilities,
(ii) A significant increase in flightcrew workload or in conditions impairing the efficiency of the flightcrew,
(iii) Physical distress to passengers or flight attendants, possibly including injuries, or
(iv) An effect of similar severity.
(2)
(i) A large reduction in safety margins or functional capabilities,
(ii) Physical distress or excessive workload such that the flightcrew cannot be relied upon to perform their tasks accurately or completely, or
(iii) Serious or fatal injuries to a relatively small number of persons other than the flightcrew.
(3)
(c) For purposes of this part, the following failure conditions in order of decreasing probability apply:
(1)
(2)
(3)
(4)
This section applies to systems that affect the structural performance of the airplane. The applicant must include the effects of systems when conducting the analyses and tests necessary to show compliance with subparts C and D of this part. For any system failure condition that either results from a single failure or is not extremely improbable, paragraphs (a) through (e) of this section apply. This section does not apply to the flight control jam conditions prescribed in § 25.671(c) or the discrete source events prescribed in § 25.571(e).
(a)
(b)
(1) If the failure would be immediately annunciated or otherwise obvious to the flightcrew, then the applicant may use a safety factor of 1.0. The applicant may also take into account any resulting configuration changes or operating limitations specified in the Airplane Flight Manual.
(2) If the failure would not be immediately annunciated or otherwise obvious to the flightcrew, but the failure condition is extremely remote, then the applicant may use a safety factor of 1.25.
(c)
(d)
(e)
(1) In the dispatched configuration, the airplane must meet the design load requirements of subpart C of this part, assuming any operating limitations, including configuration changes, that apply to the dispatched airplane; and
(2) In the dispatched configuration, the airplane must meet the requirements of paragraphs (a) and (b) of this section, taking into account any subsequent single failure, and separately, any combination of failures that are not extremely remote.
(b)
(d)
(10) Each of the following failure combinations:
(i) Any dual hydraulic system failure.
(ii) Any dual electrical system failure.
(iii) Any single failure in combination with any probable hydraulic or electrical failure.
(a) Each flight control and flight control system must operate with the ease, smoothness, and positiveness appropriate to its function. The flight control system must continue to operate and respond appropriately to commands, and must not hinder airplane recovery, when the airplane is experiencing any pitch, roll, or yaw rate, or vertical load factor that could occur due to operating or environmental conditions, or when the airplane is in any attitude.
(b) Each element of each flight control system must be designed, or distinctively and permanently marked, to minimize the probability of incorrect assembly that could result in failure of the system to perform its intended function. The applicant may use distinctive and permanent marking only where design means are impractical.
(c) The applicant must show by analysis, test, or both that the airplane is capable of continued safe flight and landing after any failure or event that results in a jam of a flight control surface or pilot control due to a physical interference.
(1) The applicant must assume the jam evaluated under this paragraph occurs at any normally encountered position of the flight control surface or pilot control.
(2) The applicant must assume the jam evaluated under this paragraph occurs anywhere within the normal flight envelope, except that the applicant need not account for flight control jams that occur immediately before touchdown if the applicant shows that such jams are extremely improbable.
(3) In the presence of a jam evaluated under this paragraph, any additional failure conditions that could prevent continued safe flight and landing must have a combined probability of less than 1/1000.
(d) If all engines fail at any point in the flight, the airplane must be controllable, and an approach and flare to a landing and controlled stop must be
(e) The flight control system must indicate to the flightcrew whenever the primary control means is near the limit of control authority.
(f) If the flight control system has multiple modes of operation, the system must alert the flightcrew whenever the airplane enters any mode that significantly changes or degrades the normal handling or operational characteristics of the airplane.
(c) For each powerplant and auxiliary power unit installation, the applicant must comply with the requirements of § 25.1309, except that the effects of the following failures need not comply with § 25.1309(b)—
(1) Engine case burn-through or rupture,
(2) Uncontained engine rotor failure, and
(3) Propeller debris release.
(a) * * *
(1) For each system intended for ground operation only, the applicant must show—
(i) The airplane is capable of continued safe flight and landing during and after any thrust reversal in flight; or
(ii) The system complies with § 25.1309(b).
Each item of installed equipment must—
(a) Be of a kind and design appropriate to its intended function;
(b) Be labeled as to its identification, function, or operating limitations, or any applicable combination of these factors; and
(c) Be installed according to limitations specified for that equipment.
Except as provided in paragraphs (e) and (f) of this section, this section applies to any equipment or system as installed on the airplane. The applicant need not account for this section when showing compliance with the performance and flight characteristic requirements of subpart B of this part and the structural requirements of subparts C and D of this part, except that this section applies to any system on which compliance with any of those requirements is dependent.
(a) The airplane's equipment and systems, as installed, must meet the following requirements:
(1) The equipment and systems required for type certification or by operating rules, or whose improper functioning would reduce safety, must perform as intended under the airplane operating and environmental conditions; and
(2) Other equipment and systems functioning normally or abnormally must not adversely affect the safety of the airplane or its occupants, or the proper functioning of the equipment and systems addressed by paragraph (a)(1) of this section.
(b) Each of the airplane's systems and associated components, as installed, and evaluated both separately and in relation to other systems, must meet all of the following requirements:
(1) Each catastrophic failure condition—
(i) Must be extremely improbable; and
(ii) Must not result from a single failure.
(2) Each hazardous failure condition must be extremely remote.
(3) Each major failure condition must be remote.
(4) Each significant latent failure must be eliminated except—
(i) If the Administrator finds it would be impractical for the applicant to comply with paragraph (b)(4) of this section, the product of the maximum time the failure is expected to be present and its average failure rate must not exceed 1/1000; or
(ii) If the Administrator finds it would be impractical for the applicant to comply with paragraph (b)(4)(i) of this section, the applicant must minimize the time the failure is expected to be present.
(5) For each catastrophic failure condition that results from two failures, either of which could be latent for more than one flight, the applicant must show that—
(i) It is impractical to provide additional fault tolerance;
(ii) Given the occurrence of any single latent failure, the probability of the catastrophic failure condition occurring due to all subsequent single failures is remote; and
(iii) The product of the maximum time the latent failure is expected to be present and its average failure rate does not exceed 1/1000.
(c) The applicant must provide information concerning unsafe system operating conditions in order to enable the flightcrew to take corrective action. The applicant must show that the design of systems and controls, including indications and annunciations, minimizes crew errors that could create additional hazards.
(d) The applicant must establish certification maintenance requirements to prevent development of the failure conditions described in paragraph (b) of this section. These requirements must be included in the Airworthiness Limitations section of the Instructions for Continued Airworthiness required by § 25.1529.
(e) Section 25.1309(b)(1)(ii) does not apply to the flight control jam conditions addressed by § 25.671(c).
(f) Section 25.1309(b) does not apply to—
(1) Single failures in the brake system addressed by § 25.735(b)(1);
(2) Failure effects addressed by §§ 25.810(a)(1)(v) and 25.812;
(3) Uncontained engine rotor failure, engine case rupture, or engine case burn-through failures addressed by §§ 25.903(d)(1) and 25.1193 and part 33 of this chapter; and
(4) Propeller debris release failures addressed by § 25.905(d) and part 35 of this chapter.
(a) An applicant must show that, in the event of a failure of the electrical supply or control system, the design and installation of domestic appliances meet the requirements of § 25.1309(b) and (c). Domestic appliances are items such as cooktops, ovens, coffee makers, water heaters, refrigerators, and toilet flush systems that are placed on the airplane to provide service amenities to passengers.
(a) * * *
(6) Each certification maintenance requirement established to comply with any of the applicable provisions of part 25.