Agricultural Marketing Service
Forest Service
Natural Resources Conservation Service
Office of Partnerships and Public Engagement
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Federal Energy Regulatory Commission
Children and Families Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Ocean Energy Management Bureau
Employment and Training Administration
Labor Statistics Bureau
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Pipeline and Hazardous Materials Safety Administration
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Nuclear Regulatory Commission.
Final guide; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing Revision 1 to Regulatory Guide (RG) 5.86, “Preemption Authority, Enhanced Weapons Authority, and Firearms Background Checks.” This RG clarifies reporting and recording of security events and conditions adverse to security under NRC regulations, “Physical Protection of Plants and Materials.”
Revision 1 to RG 5.86 is available April 24, 2024.
Please refer to Docket ID NRC-2023-0172 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:
•
•
•
Revision 1 to RG 5.86 may be found in ADAMS under Accession No. ML23299A173. The NRC staff's responses to these public comments are available in ADAMS under Accession No. ML23299A189.
Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
Phil Brochman, Office of Nuclear Security and Incident Response, telephone: 301-287-3691; email:
The NRC is issuing a revision in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.
The proposed Revision 1 to RG 5.86 was issued with a temporary identification of Draft Regulatory Guide, (DG)-5081 (ADAMS Accession No. ML23198A185). This revision provides additional guidance on preemption authority, enhanced weapons authority, and firearms background checks. These new and updated requirements are part of the NRC's final rule, entitled “Enhanced Weapons, Firearms Background Checks, and Security Event Notifications” (hereafter the Enhanced Weapons rule), that was published in the
Revision 1 to RG 5.86 provides acceptable methods that eligible applicants and licensees (collectively referred to as licensees in this RG) may use to request and use either stand-alone preemption authority or combined preemption authority and enhanced weapons authority and to conduct related firearms background checks. Revision 1 also includes examples, considerations, and guidance to assist licensees and their security personnel in understanding their responsibilities in implementing the provisions of 10 CFR 73.15 and 10 CFR 73.17.
The NRC published a notice of availability of DG-5081 in the
As noted in the
This RG is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
Issuance of RG 5.86 Revision 1, does not constitute backfitting as defined in 10 CFR 72.62, “Backfitting,” 10 CFR
A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
This action adopts standards for measuring non-volatile particulate matter (nvPM) exhaust emissions from aircraft engines. With this rulemaking, the FAA implements the nvPM emissions standards adopted by the Environmental Protection Agency (EPA), allowing manufacturers to certificate engines to the new nvPM emissions standards in the United States, and fulfilling the statutory obligations of the FAA under the Clean Air Act.
This rule is effective May 24, 2024.
The incorporation by reference of a certain publication listed in this rule is approved by the Director of the Federal Register as of May 24, 2024. The incorporation by reference of a certain other publication listed in this rule was approved by the Director of the Federal Register as of December 31, 2012 (77 FR 76842).
Comments on this rule must be received by June 24, 2024.
You may send comments identified by docket number using any of the following methods:
•
•
•
•
For technical questions concerning this action, contact Ralph Iovinelli, Office of Environment and Energy (AEE-300), Federal Aviation Administration, 800 Independence Ave SW, Washington DC 20591; telephone (202) 267-3566; 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.
The Clean Air Act Amendments of 1970, title 42 of the United States Code, Chapter 85, Subchapter II, part B, Section 7572, grant the Secretary of Transportation the authority to ensure compliance with aviation emission standards adopted by the United States EPA. Further, 49 CFR 1.83(c) delegates to the FAA Administrator the authority to “[C]arry out the functions vested in the Secretary by part B of title II of the Clean Air Act.”
This rulemaking adopts regulations to enforce the standards adopted by the EPA under its authority in the Clean Air Act (the Act) in 40 CFR part 1031 at the time of aircraft certification to control certain emissions from airplane engines. This rulemaking is issued under 42 U.S.C. 7572 and 49 CFR 1.83(c).
Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553) requires Federal agencies to publish a notice of proposed rulemaking unless “. . . the agency for good cause finds (and incorporates the finding in a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impractical, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking.
This rule adopts the procedures necessary for the FAA to implement the regulatory emissions limits and test requirements (together referred to as standards) for nvPM emitted by aircraft engines adopted by the EPA under 42 U.S.C. 7571 (sec. 231 of the Act) (87 FR 72312, November 23, 2022) that were effective December 31, 2022. These standards are set forth in 40 CFR part 1031. The FAA is statutorily required (
The emission standards adopted by the EPA in 40 CFR part 1031 represent the results of widely coordinated
Accordingly, the FAA finds that notice and comment on the standards and procedures adopted in this rulemaking is unnecessary because the FAA does not have authority to make changes to the standards or procedures adopted by the EPA and the EPA issued its proposed rule for notice and sought public comment on these standards and test procedures prior to promulgating them on November 23, 2022.
Therefore, FAA finds that good cause exists under 5 U.S.C. 553(b)(3)(B) to waive prior notice and the opportunity for comment because such procedures are unnecessary.
Although the FAA has no authority to change any of the emission standards or procedures adopted by the EPA in accordance with the Act, the FAA is requesting comment from interested parties regarding the parts of this rulemaking that adopt the certification regulations in 14 CFR part 34 and implement them at the time of aircraft engine certification. The FAA will review and consider any comments received. Notice of any action the FAA takes as a result of a comment will be published in the
The FAA encourages interested persons to participate in this rulemaking by submitting written comments containing relevant information, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from the adoption of these requirements. While the FAA cannot amend the substance of the rule based on comments, it may take them under advisement for future actions. The FAA will consider comments received on or before the closing date for comments. The FAA will also consider late filed comments to the extent practicable.
See section VII., “How to Obtain Additional Information,” for information on how to comment on this final rule and how the FAA will handle comments received. That section also contains related information about the docket, privacy, and the handling of proprietary or confidential business information. In addition, there is information on obtaining copies of related rulemaking documents.
This rulemaking adopts the regulations necessary for the Federal Aviation Administration (FAA) to implement the Environmental Protection Agency's (EPA) new aircraft engine emissions standards and certification test procedures for non-volatile particulate matter (nvPM) that were effective December 23, 2022.
Since the EPA and FAA share the authority for aircraft engine emission standards under the Clean Air Act (the Act),
The FAA is adopting the same nvPM emissions limits as those promulgated by the EPA and ICAO. Engine manufacturers are already complying with ICAO nvPM standards; this rule will not cause manufacturers to incur additional costs to certificate an engine in the United States. Manufacturers would likely incur higher costs if this rule is not implemented, since they would be required to seek certification with a non-U.S. authority to remain competitive globally. More detail on the cost analysis is provided in Section V. A. of this document.
This final rule fulfills FAA's obligation to implement EPA's new emissions standards for U.S. civil aircraft and conforms U.S. regulations with the standards and recommended practices (SARPs) adopted by ICAO.
Aircraft engine exhaust is comprised of gaseous compounds, and of particulate matter that contributes to both visible plume exhaust and atmospheric particulate matter. Particulate matter emissions include both volatile and non-volatile components. Non-volatile particulate matter (nvPM) is emitted directly from the engine and is comprised of a small amount of carbon particles (or “soot”) that did not fully convert to the gaseous form of carbon dioxide (CO
In 1973, the U.S. first addressed particulate matter emissions by adopting the smoke number (SN) standards of part 34 that focused on visible aircraft exhaust plumes. The SN standard was established to eliminate the visible particulate matter directly emitted by aircraft engines, rendering exhaust plumes invisible to the human eye. SN is determined by measuring the opacity of a filter after soot has been collected on it during the engine emissions certification test required by § 34.23(a).
In 2013, ICAO recognized that measuring nvPM emissions allowed a more comprehensive approach to controlling visible aircraft exhaust plumes by describing the nvPM emissions that are most likely to impact human health and welfare, and by establishing regulatory limits for them. As a result, the ICAO Committee on Aviation Environmental Protection (CAEP) began the first of two standard-setting actions work programs in its tenth triennial cycle (CAEP/10, 2013-2016) to incorporate non-volatile particulate matter emissions measurement and limits in ICAO's
As part of its first standard setting action, ICAO recognized that the measurement known as maximum nvPM mass concentration (nvPM
In 2017, ICAO adopted the nvPM
From 2016 to 2019 (the CAEP/11 triennial cycle), ICAO set standards for two additional parameters for nvPM emissions from affected aircraft engines: nvPM mass (nvPM
As a signatory State to the Chicago Convention, the United States must establish standards that have the highest practicable degree of uniformity to the ICAO SARPs, or file a difference. By implementing the standards promulgated by EPA
This final rule adopts the emissions levels and test requirements that will allow the FAA to certificate aircraft engines to the nvPM emissions standards developed by ICAO and made effective in the United States by the EPA on December 23, 2022. These new nvPM standards apply to subsonic aircraft turbofan engines having a rated output greater than 26.7 kN.
The new nvPM emissions standard has three parameters: maximum nvPM
The nvPM test and measurement procedures require the use of additional equipment and procedures compatible with those currently in use for measuring gaseous pollutants. The FAA is both incorporating by reference the nvPM test and measurement procedures described in ICAO Annex 16, Volume II (as adopted by the EPA), and adding additional test procedures in new §§ 34.71 and 34.73 in order to fully implement the EPA's standards.
In addition to the nvPM standards and methods described, the FAA has included other minor, nonsubstantive changes to the existing emissions regulations as they relate to nvPM to make part 34 consistent with the EPA regulations of 40 CFR part 1031, as described in Section H below. The FAA has also created a centralized incorporation by reference (IBR) section to index the ICAO materials that part 34 incorporates by reference, as described in Section G, below.
This final rule establishes the certification standards for nvPM
For Class TF, T3, or T8 engines (regulated classes of large turbofan engines) with a rated output greater than 26.7 kN, this rule replaces the SN requirement with a measurement of a maximum nvPM mass concentration (nvPM
The standards for nvPM
An engine for which an application for an original type certificate is submitted on or after January 1, 2023, is subject to the nvPM
The FAA is incorporating by reference into part 34 the nvPM test and measurement procedures of ICAO Annex 16, Volume II, Appendices 4, 6 and 7. The EPA incorporated these appendices and Appendix 8, which is not relevant to FAA regulations,
As stated in Section IV, the nvPM standards for engines with a rated output greater than 26.7 kN are a replacement for SN requirements in certain classes of engines. For all other classes of engines, this rule revises § 34.21(e) to group the continuing SN requirements in one paragraph for ease of reference; the SN standards had been scattered in various sections of part 34 as compliance dates were added over time. Consistent with the standards adopted by the EPA and ICAO, the SN requirements are unchanged for engines not subject to nvPM. The applicability of § 34.21(e) was modified as described here to maintain regulatory consistency.
Section 34.21(e)(1)(A) and (B) carry forward the SN requirements for engines of the applicable class and size produced before January 1, 2023. The SN requirements of paragraph(e)(1)(B) were misplaced in § 34.23(a)(1) and referenced as a gaseous emission standard. The requirement was moved to (e)(1)(B) and § 34.23(a)(1) is marked reserved to maintain the integrity of references to the gaseous emissions standards of § 34.23.
Paragraph (e)(1)(C) applies to described engines manufactured after January 1, 2023, and contains a modification to the applicability of the SN requirements to maintain consistency with EPA regulations. Over time, regulatory changes by the U.S. and ICAO resulted in a discrepancy of applicability between the two sets of regulations. If the United States maintained its applicability division, an engine with exactly 26.7 kN of rated output would be subject to the SN standard in other ICAO member States, but subject to nvPM standards in the United States. In its rulemaking, the EPA adopted the ICAO standard for the division between SN and nvPM applicability. The FAA is adopting the same EPA and ICAO applicability descriptors to prevent a situation where an engine of exactly 26.7 kN of rated output would, without reason, be subject to two different standards. Accordingly, the SN standard for engines manufactured on or after January 1, 2023, has been modified to apply to engines having a rated output of 26.7 kN or less. The FAA is not aware of any engines rated at exactly 26.7 kN, so there are no practical consequences to this realignment, and it has no retroactive applicability.
Section 34.21(e)(2) contains the SN requirements for certain classes of engines manufactured on or after January 1, 1984, and before January 1, 2023. Engines of those classes manufactured on or after January 1, 2023, are subject to the new nvPM requirements of § 34.25.
Section 34.21(e)(3) carries forward the SN standard for certain turboprop (class TP) engines manufactured on or after January 1, 1984. This requirement is unchanged.
Section 34.21(e)(4) makes the SN standard appliable to all supersonic (class TSS) engines regardless of rated thrust. Because emissions standards for supersonic engines have not yet been agreed to internationally, these engines were not included by ICAO in the new nvPM standard. The EPA adopted the ICAO standard for SN to apply to all supersonic engines regardless of rated output in 40 CFR part 1031. This regulation carries forward that requirement in part 34.
The fuel venting standard in part 34 subpart B prohibits the discharge of fuel to the atmosphere following engine shutdown. Fuel venting emissions are described as fuel discharge during all normal ground and flight operations. Following discussions with the EPA and ICAO, this rule adds the word “liquid” before “fuel” in the fuel venting requirements to prevent the application of the regulation to small amounts of fuel that vaporize on hot engine parts after shutdown. Small amounts of vaporizing fuel was not the concern of the fuel venting prohibition drafted in the 1960s, which was intended to address the then-common practice of dumping large amounts of liquid fuel on the ground after engine shutdown. This change will not have any effect on the requirements for engine type certification, and is a concept commonly understood in the industry.
Section 34.48 prescribes standards for finding that an engine is a “derivative engine for emissions purposes” by assessing the emissions similarity between an engine and its proposed derivative. Status as a derivative engine determines whether the proposed derivative must undergo complete emissions testing. The addition of an nvPM standard requires that the derivative engine considerations also include nvPM characteristics for engines that may be considered as a
In order to implement the nvPM standards adopted by the EPA, FAA regulations must include effective test and measurement procedures in the emissions certification requirements for use by manufacturers. These tests and procedures have been placed in a new subpart H to part 34 as §§ 34.71 and 34.73.
Section 34.71 identifies the nvPM emissions test requirements, such as the minimum number of emissions test runs required, the number of engines of the same type design that may be used to gather test data, and the operational conditions required for emissions certification (§ 34.71 (b), (c), and (g)). The section also includes test fuel specifications (§ 37.71 (d)), a description of the LTO cycle (§ 34.71(h)), and how to prepare and operate an engine for emissions certification (§ 34.71 (f)). Section 34.71(i) states how characteristic values, in conjunction with Table A6-1 of Annex 16 Vol II, Appendix 6, are to be determined.
Many of the test and measurement procedures required for nvPM were identified and described by ICAO. Section 34.71(e)(1) includes an incorporation by reference of ICAO Annex 16, Volume II and its Appendices requiring that those tests and procedures in the applicable Annex appendices be used when measuring and collecting data, including the other requirements of § 34.71.
Section 34.71 (e)(2) instructs the applicant on the procedures necessary when requesting a deviation from any of the test procedures or compliance demonstrations of subpart H. The FAA expects that any such deviation request would be from a test or procedure that was included in the approved test plan, but was discovered to be unworkable before the test is actually conducted. Any deviation proposed must be approved by the FAA before any emissions test is conducted. The FAA will consult with the EPA prior to making a written determination on any requested deviation.
Section 34.71(j) requires that all measurements be included in nvPM calculations. This section also cautions that if an applicant seeks to exclude any measurements, that data must be submitted to the FAA with justification for the exclusion, and that the exclusions must be approved by the FAA before the applicant makes any nvPM calculations.
Section 34.73 requires applicants to perform a compliance demonstration that shows the engine emissions of nvPM are within the applicable limits provided in § 34.25. A demonstration of compliance includes calculations to determine the characteristic nvPM emissions levels for maximum nvPM
Section 34.73(c)(1) directs the applicant to conduct the minimum number of measurements at the thrust settings given in § 34.71(h). However, this section also provides an applicant with the flexibility to make as many additional measurements as it chooses across the entire thrust range of an engine when measuring nvPM. More measurements conducted across the thrust range of an engine result in improved understanding of any trending nvPM behavior. Section 34.71(c)(1) also allows an applicant to choose one of the three equivalent evaluation methods listed in that section when calculating nvPM
This final rule includes a new section, § 34.4, that indexes all material incorporated by reference in part 34. The FAA determined that it was appropriate with this final rule to create a centralized IBR section indexing all the materials incorporated by reference in Part 34, for ease of reference and future revision.
The OFR has regulations concerning incorporation by reference (1 CFR part 51). These regulations require that, for a final rule, agencies must discuss in the preamble the way in which the materials that the agency incorporated by reference are reasonably available to interested persons, and how interested parties can obtain the materials. In addition, in accordance with 1 CFR 51.5(b), the agency must summarize the material in the preamble of the final rule.
Because this rule was passed to harmonize United States regulations with international standards, this final rule incorporates Annex 16 to the Convention on International Civil Aviation: Environmental Protection, Volume II—Aircraft Engine Emissions, Fourth Edition, July 2017 (ICAO Annex 16, Volume II). Appendices 1,4, 6, and of the 2017 Annex are referenced in § 34.71 and 34.73, and appendices 4 and 6 of the Annex are referenced in § 34.73. The content of these appendices is described above, in sub-part F.
The 2008, Third Edition, of the Annex is referenced in §§ 34.1 and 34.60. The incorporation by reference of the 2008, Third Edition, of the Annex was approved by the Director of the Federal Register as of December 31, 2012 (77 FR 76842). The new § 34.4 includes the 2008 and 2017 editions of the ICAO Annex as well. All approved material is available for inspection at the FAA. Contact the FAA Office of Rulemaking (ARM), 800 Independence Avenue SW, Washington, DC 20590 (telephone 202-267-9677). Interested parties can also purchase the Annex online from ICAO at:
This rule includes the following changes to part 34 to improve the clarity of the nonvolatile particulate matter emissions standards, align the provisions described with those of the EPA in 40 CFR part 1031 (formerly 40 CFR part 87), and make other minor changes as described:
(1) Definitions in § 34.1. This rule adds a definition of nvPM, and revises the definition of “Derivative engine for emissions certification purposes” for consistency with EPA regulations in 40 CFR part 1031 and ICAO Annex 16 Volume II. This rule revises the definition of “Reference day condition” to include a more accurate value for specific humidity that is recognized in the general scientific community and is consistent with the definitions used by the EPA and ICAO. This rule removes the definition of “Fuel venting” from § 34.1 in favor of the more specific description of fuel venting in § 34.11, where it applies.
(2) Abbreviations in § 34.2: The following terms are added to the list of abbreviations in § 34.2: nvPM, nvPM
(3) Updated references to EPA regulations: The replacement of references to 40 CFR part 87 with updated references to 40 CFR part 1031 in §§ 34.3, 34.6(h) and 34.7(d). In the case of § 34.3, the references were numerous, and some were more specific, such that the FAA chose to set out the text of the entire section, rather than describe individual instances.
(4) Updated references to 14 CFR part 34: The removal of the acronym “FAR,” replacing it with an appropriate reference to the regulations of part 34 or 40 CFR part 1031. The term “FAR” is not a recognized legal reference to the regulations in Title 14 of the Code of Federal Regulations.
Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563, as amended by Executive Order 14094 (“Modernizing Regulatory Review”), direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify the 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. 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 that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $177 million using the most current (2022) Implicit Price Deflator for the Gross Domestic Product. This portion of the preamble presents the FAA's analysis of the economic impacts of this rule.
In conducting these analyses, the FAA has determined that this rule: will result in benefits that justify costs; is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; will not have a significant economic impact on a substantial number of small entities; will not create unnecessary obstacles to the foreign commerce of the United States; and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector.
The FAA expects minimal cost savings to result from the final rule. The FAA will be implementing emission standards promulgated by the EPA on November 23, 2022, which adopted the standards previously set by ICAO. The EPA standards conform to the ICAO standards and the FAA does not have the authority to change the emissions standards adopted by the EPA. Manufactures are already complying with the ICAO nvPM standards to be able to market their aircraft worldwide, so this final rule will not place any new costs on manufacturers when engines are certificated in the United States.
Manufacturers would likely incur some extra costs if this rule is not implemented, as they would be required to seek certification with a non-U.S. certification authority. The FAA identified five U.S.-based manufacturers that are affected by this final rule. The costs of full emissions certification that includes nvPM emissions in the U.S. is estimated to average $548,733
The Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L. 111-240), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
As described in the RIA, the FAA identified five U.S. manufacturers that would be affected by this final rule. Based on the Small Business Administration (SBA) size standard for aircraft engine and engine parts manufacturing (Table 1), all five manufacturers are large businesses. 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) and based on the foregoing, the head of FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities. The FAA welcomes comments on the basis for this certification.
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 potential effect of this rule and determined that it maintains the same standards for engine emissions certification of nvPM as was adopted by ICAO. As a result, the FAA does not consider this rule as creating an unnecessary obstacle to foreign commerce.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. The FAA determined that this final rule will not result in the expenditure of $177 million or more by State, local, or tribal governments, in the aggregate, or the private sector, in any one year.
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 is no new requirement for information collection associated with this final rule since emissions testing is already required as part of aircraft engine certification.
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 reviewed the corresponding ICAO Standards and Recommended Practices and has identified the no differences with these regulations. This regulation is a conforming action to adopt the same standards for nvPM certification that are contained in the ICAO SARPs.
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 (NEPA) in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6f for regulations and involves no extraordinary circumstances.
Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the Administrator, when modifying 14 CFR regulations in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. Because this final rule sets standards for aircraft engine emissions at the time of certification, no effect on intrastate aviation in Alaska is expected.
The FAA has analyzed this final rule under the principles and criteria of Executive Order (E.O.) 13132, Federalism. The FAA has determined that this action will 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, will not have federalism implications.
Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments,
The FAA analyzed this final rule under E.O. 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The FAA has determined that this rule is not a “significant energy action” under the executive order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges
A copy of this final rule, any background material, and all comments received may be viewed online 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) 267-9677. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this final rule, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the person listed under the
Aircraft, Aviation safety, Air pollution control, Incorporation by reference, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Federal Aviation Administration is amending chapter I of title 14, Code of Federal Regulations as follows:
42 U.S.C. 4321
The revisions, republication, and addition read as follows:
The abbreviations used in this part have the following meanings in both upper and lower case:
(a) This part provides for the approval or acceptance by the Administrator or the Administrator of the EPA of testing and sampling methods, analytical techniques, and related equipment not identical to those specified in this part. Before either approves or accepts any such alternate, equivalent, or otherwise
(b) Under section 232 of the Act, the Secretary of Transportation issues regulations to ensure compliance with 40 CFR part 1031. This authority has been delegated to the Administrator of the FAA in accordance with 49 CFR 1.47.
(c) This part applies to civil airplanes that are powered by aircraft gas turbine engines of the classes specified herein and that have U.S. standard airworthiness certificates.
(d) Pursuant to the definition of “aircraft” in 40 CFR 1031.205, this regulation applies to civil airplanes that are powered by aircraft gas turbine engines of the classes specified herein and that have foreign airworthiness certificates that are equivalent to U.S. standard airworthiness certificates. This regulation applies only to those foreign civil airplanes that, if registered in the United States, would be required by applicable regulations to have a U.S. standard airworthiness certificate in order to conduct the operations intended for the airplane. Pursuant to 40 CFR 1031.5, this regulation does not apply where it would be inconsistent with an obligation assumed by the United States to a foreign country in a treaty, convention, or agreement.
(e) Reference in this regulation to 40 CFR part 1031 refers to title 40 of the Code of Federal Regulations, chapter I—Environmental Protection Agency, part 1031, Control of Air Pollution from Aircraft and Aircraft Engines (40 CFR part 1031).
(f) This part contains regulations that implement compliance with certain standards contained in 40 CFR part 1031. If EPA takes any action, including the issuance of an exemption or issuance of a revised or alternate procedure, test method, or other regulation, the effect of which is to relax or delay the effective date of any provision of 40 CFR part 1031 that is made applicable to an aircraft under this part, the Administrator of FAA will grant a general administrative waiver of the more stringent requirements until this part is amended to reflect the requirements relaxed by EPA.
(g) Unless otherwise stated, all terminology and abbreviations in this part that are defined in 40 CFR part 1031 have the meaning specified in that part, and all terms in 40 CFR part 1031 that are not defined in that part but that are used in this part have the meaning given them in the Clean Air Act, Public Law 91-604, as amended.
(h) All interpretations of 40 CFR part 1031 that are promulgated by the EPA also apply to this part.
(i) If the EPA, under 40 CFR part 1031, approves or accepts any testing and sampling procedures or methods, analytical techniques, or related equipment not identical to those specified in that part, this part requires an applicant to show that such alternate, equivalent, or otherwise non-identical procedures have been complied with, and that such alternate equipment was used to show compliance, unless the applicant elects to comply with those procedures, methods, techniques, and equipment specified in 40 CFR part 1031.
(j) If the EPA, under 40 CFR 1031, prescribes special test procedures for any aircraft or aircraft engine that is not susceptible to satisfactory testing using the procedures in 40 CFR part 1031, the applicant must demonstrate to the FAA Administrator that they are in compliance with those special test procedures.
(k) Wherever 40 CFR part 1031 requires agreement, acceptance, or approval by the Administrator of the EPA, this part requires a showing that such agreement or approval has been obtained.
(l) Pursuant to 42 U.S.C. 7573, no state or political subdivision thereof may adopt or attempt to enforce any standard respecting emissions of any air pollutant from any aircraft or engine thereof unless that standard is identical to a standard made applicable to the aircraft by the terms of this part.
(m) If EPA, by regulation or exemption, relaxes a provision of 40 CFR part 1031 that is implemented in this part, no state or political subdivision thereof may adopt or attempt to enforce the terms of this part that are superseded by the relaxed requirement.
(n) If any provision of this part is rendered inapplicable to a foreign aircraft as provided in 40 CFR 1031.5 (international agreements), and paragraph (d) of this section, that provision may not be adopted or enforced against that foreign aircraft by a state or political subdivision thereof.
(o) For exhaust emissions requirements of this part that apply beginning February 1, 1974, January 1, 1976, January 1, 1978, January 1, 1984, and August 9, 1985, continued compliance with those requirements is shown for engines for which the type design has been shown to meet those requirements, if the engine is maintained in accordance with applicable maintenance requirements of 14 CFR chapter I. All methods of demonstrating compliance and all model designations previously found acceptable to the Administrator shall be deemed to continue to be an acceptable demonstration of compliance with the specific standards for which they were approved.
(p) Each applicant must allow the Administrator to make, or witness, any test necessary to determine compliance with the applicable provisions of this part.
Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51). All approved material is available for inspection at the FAA and at the National Archives and Records Administration (NARA). Contact the FAA Office of Rulemaking (ARM), 800 Independence Avenue SW, Washington, DC 20590 (telephone 202-267-9677) For information on the availability of this material at NARA, visit
(a) The material may be obtained from the following source: International Civil Aviation Organization (ICAO): Document Sales Unit, 999 University Street, Montreal, Quebec H3C 5H7, Canada, phone + 1 514-954-8022, or
(1) Annex 16 to the Convention on International Civil Aviation: Environmental Protection, Volume II—Aircraft Engine Emissions, Third Edition, July 2008 (ICAO Annex 16); in §§ 34.1 and 34.60.
(2) Annex 16 to the Convention on International Civil Aviation: Environmental Protection, Volume II—Aircraft Engine Emissions, Fourth Edition, July 2017 (ICAO Annex 16, Volume II), in §§ 34.71 and 34.73.
(b) [Reserved]
(b) Consistent with 40 CFR part 1031, if the FAA Administrator determines that any emission control regulation in this part cannot be safely applied to an aircraft, that provision may not be adopted or enforced against that aircraft
(d)
(a) No liquid fuel venting emissions shall be discharged into the atmosphere from any new or in-use aircraft gas turbine engine subject to the subpart. This paragraph is directed at the elimination of intentional discharge to the atmosphere of fuel drained from fuel nozzle manifolds after engines are shut down and does not apply to normal fuel seepage from shaft seals, joints, and fittings.
(c) As applied to an airframe or an engine, any manufacturer or operator may show compliance with the liquid fuel venting and emissions requirements of this section that were effective beginning February 1, 1974 or January 1, 1975, by any means that prevents the intentional discharge of fuel from fuel nozzle manifolds after the engines are shut down. Acceptable means of compliance include one of the following:
(e) Smoke exhaust emissions from each gas turbine engine shall not exceed:
(1)(A) For Class TF of rated output less than 26.7 kN (6,000 lbf) manufactured on or after August 9, 1985, and before July 18, 2012:
(B) For Classes TF, T3, and T8 of rated output less than 26.7 kN (6,000 lbf) manufactured on or after July 18, 2012, and before January 1, 2023:
(C) For Classes TF, T3, and T8 of rated output of 26.7 kN (6,000 lbf) or less manufactured on or after January 1, 2023:
(2) For Classes T3, T8, TSS, and TF of rated output greater than or equal to-26.7 kN (6,000 lbf) manufactured on or after January 1, 1984, and before January 1, 2023:
(3) For Class TP of rated output equal to or greater than 1,000 kW manufactured on or after January 1, 1984:
(4) For Class TSS manufactured on or after January 1, 2023:
The standards of this section apply to an aircraft engine of Class TF, T3, or T8 with a rated output greater than 26.7 kN that is manufactured after January 1, 2023. Where a maximum nvPM
(a) Except as provided in paragraph (b) or (c) of this section;
(1) The characteristic level for the maximum nvPM
(2) The characteristic level for nvPM mass expressed in [mg/kN] and for nvPM number expressed in [particles/kN] must not exceed the following:
(b) For a change in type design by the type design holder, when the application for an amended type certificate is filed after January 1, 2023:
(1) If the engine qualifies as a derivative engine in accordance with § 34.48 of this part, no testing is required for the engine to use the same nvPM certificated parameters (nvPM
(2) If the engine does not qualify as a derivative engine in accordance with § 34.48 of this part, the applicant must demonstrate compliance with each requirement in paragraph (a) of this section.
(c) For issuance of an original type certificate when an application for type certification is filed after January 1, 2023, the applicant must demonstrate that the engine does not exceed:
(1) For maximum nvPM
(2) For the characteristic level for nvPM
(a)
(b)
(i) ±3.0 g/kN for NO
(ii) ±1.0 g/kN for HC.
(iii) ±5.0 g/kN for CO.
(iv) ±2.0 SN for smoke (where applicable).
(v) The following values apply for maximum nvPM
(A) maximum nvPM
(
(
(B) nvPM
(
(
(C) nvPM
(
(
(2) If the characteristic level of the original certificated engine model (or any other sub-models within the emission type certificate family tested for certification) before modification is at or above 95% of the applicable standard for any pollutant, an applicant must measure the proposed derivative engine model's emissions for all pollutants to demonstrate that the derivative engine's resulting characteristic levels will not exceed the applicable emission standards. If the characteristic levels of the originally certificated engine model (and all other sub-models within the emission type certificate family tested for certification) are below 95% of the applicable standard for each pollutant, the applicant may use engineering analysis consistent with good engineering judgment to demonstrate that the derivative engine will not exceed the applicable emission standards. The engineering analysis must address all modifications from the original engine, including those approved for previous derivative engines.
(3) In unusual circumstances and consistent with good engineering judgement, the FAA may adjust the ranges specified in paragraph (b)(1) of this section to evaluate a proposed derivative engine.
(h) The system and procedure for sampling and measurement of gaseous emissions shall be as specified by in Appendices 2, 3, 4, 5 and 6 to the International Civil Aviation Organization (ICAO) Annex 16, Environmental Protection, Volume II, Aircraft Engine Emissions, Third Edition, July 2008 (incorporated by reference, see § 34.4).
For each Class TF, T3, or T8 engine manufactured after January 1, 2023, that has a rated output greater than 26.7 kN, the test procedures for measuring each required nvPM parameter are as follows:
(a) Measure the emissions of all nvPM parameters required in this part, as applicable.
(b) Collect data from at least three engine tests, with each test conducted at the reference LTO time/thrust combinations shown in paragraph (h) of this section.
(c) For the engines referenced in paragraph (b) of this section, all emissions certification tests may be conducted on one or more engines of the same type design.
(d) Use a test fuel that meets the specifications described in Appendix 4 of ICAO Annex 16, Volume II (incorporated by reference, see § 34.4). The test fuel must not have any additive whose purpose is to suppress nvPM emissions.
(e) (1) When conducting test measurements in accordance with paragraphs (a) through (c) of this section, use the equipment and procedures specified in Appendix 1, Appendix 4, Appendix 6, and Appendix 7 of ICAO Annex 16, Volume II (incorporated by reference, see § 34.4), when demonstrating whether an engine meets the applicable nvPM limit specified in § 34.25 of this part.
(2) An applicant that seeks to use a procedure or equipment that differs from any specified in this part must request FAA approval in writing with supporting justification before the alternative procedure or equipment may be used to demonstrate compliance. The FAA will consult with the EPA on any such request. The FAA may approve the requested alternative for measuring nvPM, including testing and sampling methods, analytical techniques, and equipment specifications. Each request must meet one of the following conditions:
(i) The engine cannot be tested using a specified procedure; or
(ii) The alternative procedure is shown to be equivalent to, or more accurate or precise than, the specified procedure.
(f) Any engine accessory included in a type design that may reasonably be expected to influence either nvPM emissions or measurements must be installed on the engine before testing. The test engine must not extract shaft power or bleed service air to provide power to auxiliary gearbox-mounted components necessary to drive aircraft systems;
(g) For each percentage of rated output thrust level prescribed in paragraph (h) of this section, a test engine must reach and maintain a steady operating condition before any nvPM emission measurement is made;
(h) The following landing and takeoff (LTO) cycles apply for nvPM emissions testing and for calculating weighted LTO values:
(i) An engine complies with an applicable limit if the test results show that the engine type certificate family's characteristic level does not exceed any limit for maximum nvPM
(j) All measurements collected during engine tests required in paragraph (b) of this section must be used in the calculation of nvPM. Before any calculations are made, the FAA must approve the exclusion of any measurements that the applicant seeks to exclude, including any justification for such exclusions.
(k) The system and procedure for sampling and measurement of gaseous emissions shall be as specified by Appendices 1, 4, 6, and 7 of ICAO Annex 16, Volume II (incorporated by reference, see § 34.4).
(a) Each compliance demonstration by an applicant requires:
(1) Establishing a mean value from tests conducted on one or more engines;
(2) Calculating a “characteristic level” by applying a set of statistical factors that take into account the number of engines tested in accordance with § 34.71(b) of this part; and
(3) Rounding each characteristic level to the same number of decimal places as the corresponding emission limit.
(b) In demonstrating compliance with this subpart, an applicant must use the nvPM measurements collected in accordance with § 34.71 as follows:
(1) An engine complies with an applicable standard when the engine type certificate family's characteristic level does not exceed any nvPM limit described in § 34.25 of this part; and
(2) A compliance demonstration consists of:
(i) Determining the maximum nvPM
(ii) Correcting each data point to standard temperature and pressure conditions;
(iii) Applying the appropriate statistical factor shown in Table 6-1 of Appendix 6 of ICAO Annex 16, Volume II (incorporated by reference, see § 34.4) to account for the number of engines tested; and
(iv) Rounding each characteristic level to the same number of decimal places as the corresponding nvPM limit in § 34.25 of this part.
(c) (1) In determining maximum nvPM
(i) Method 1—
(A) Average the individual data points measured at each thrust setting to develop one dataset of nvPM mass concentration for each engine tested, creating an average dataset for each engine; and
(B) Use the averages generated in paragraph (c)(1) of this section to develop a single curve fit to determine the overall maximum nvPM
(ii) Method 2—
(A) Measure individual data points of nvPM
(B) Determine the maximum nvPM
(C) If more than one engine is physically tested, average the nvPM
(iii) Method 3—
(A) Develop a curve fit of nvPM
(B) From each curve fit developed in paragraph (c)(1) of this section, use the resultant curve fit equation to solve for each maximum;
(C) Average the maximum values for each engine physically tested; and
(D) Average the maximum values determined in paragraph (c)(1)(iii)(C) of this section to determine the overall average maximum nvPM
(2) Using the data measured in § 34.71(b) of this part, determine the nvPM characteristic levels for nvPM
(i) Average all nvPM
(ii) Multiply the averaged measurement from paragraph (a)(2)(i) of this section by the appropriate time in mode (TIM) as shown in § 34.71(h);
(iii) Sum the products from paragraph (a)(2)(ii) of this section to determine the LTO values for nvPM
(iv) Divide the result of paragraph (a)(2)(iii) of this section by the characteristic level factor, shown in Table A6-1 of Appendix 6 of ICAO Annex 16, Volume II (incorporated by reference, see § 34.4), for the number of engines physically tested to determine the nvPM
(d) The data used to determine the regressed curves must meet a 90% confidence interval, CI
(e) The following information must be reported to the FAA substantiating
(1) The values of nvPM emissions measured and computed in accordance with the procedures and calculated as required by this subpart in § 34.71 of this part and paragraphs (a) through (d) of this section;
(2) For each engine tested:
(i) Engine model, series, and serial number;
(ii) Rated thrust (kN);
(iii) Overall pressure ratio;
(iv) The methods of data acquisition; and
(v) The method of data analysis chosen by the applicant under paragraphs (a) through (d) of this section.
(3) Demonstration that the fuel used for each test is in compliance with the fuel specification listed in Appendix 4 of ICAO Annex 16, Volume II (incorporated by reference, see § 34.4). For the fuel used for nvPM emissions certification, include the following fuel characteristics:
(i) Hydrogen/carbon ratio;
(ii) Net heat of combustion (MJ/kg);
(iii) Hydrogen content (mass per cent);
(iv) Total aromatics content (volume per cent);
(v) Naphthalene content (volume per cent); and
(vi) Sulfur content (ppm by mass).
(4) For each engine tested for certification purposes, the following values measured and computed in accordance with the procedures of § 34.71 of this part:
(i) Fuel flow (kg/s) at each thrust setting of the LTO cycle;
(ii) nvPM EI
(iii) nvPM mass emission rate [nvPM EI
(iv) nvPM EI
(v) nvPM number emission rate [nvPM EI
(vi) Total gross emissions of nvPM mass measured over the LTO cycle in mg;
(vii) Total gross emissions of nvPM number measured over the LTO cycle in particles;
(viii) LTO nvPM
(ix) LTO nvPM
(x) Maximum nvPM
(5) For each engine tested for certification purposes, the characteristic levels for the maximum nvPM
Issued under authority provided in 42 U.S.C 4321
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain waters of the San Diego Bay. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards during the XPONENTIAL 2024 demonstration. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector San Diego.
This rule is effective from 8a.m. on April 22, 2024, to 1 p.m. on April 25, 2024.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email Lieutenant Shelley Turner, Waterways Management Sector San Diego, U.S. Coast Guard; telephone 619-278-7261, email
The Coast Guard is issuing this temporary rule under authority in 5 U.S.C. 553(b)(B). This statutory provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it impracticable. The Coast Guard did not receive adequate notice to solicit comments provide prior notice on the need for the safety zone. We must forgo notice and comment to provide safety to protect personnel, vessels, and the marine environment from potential hazards during the demonstration.
Also, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector San Diego (COTP) has determined that potential hazards associated with the XPONENTIAL 2024 demonstration from April 22, 2024, to April 25, 2024, will be a safety concern for anyone within a 100-yard distance from the proposed zone. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the demonstration.
This rule establishes a safety zone from 8 a.m. on April 22, 2024, to 1 p.m. on April 25, 2024. The safety zone will cover all navigable waters within 100 yards of the following coordinates; 32°42′16.81″ N 117°09′58.72″ W, 32°42′10.57″ N 117°10′04.98″ W, 32°41′ 57.10″ N 117°09′46.17″ W, 32°42′08.28″ N 117°09′33.50″ W, 32°42′14.00″ N 117°09′44.63″ W, 32°42′09.58″ N 117°09′49.26″ W, 32°42′16.81″ N 117°09′58.72″ W. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the XPONENTIAL 2024 demonstration is being conducted. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, duration, and time-of-day of the regulated area. The affected portion of the San Diego Bay will be of very limited duration and is necessary for safety of life to participants in the event. Moreover, the Coast Guard will issue a Safety Marine Information Broadcast over Channel 22A.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a 100 yard perimeter around the coordinates during the duration set forth in this temporary final rule. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative by VHF-FM Channel 21A or by telephone at 619-278-7033. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces the closure of the Northern Gulf of Maine (NGOM) Scallop Management Area for the remainder of the 2024 fishing year for Limited Access General Category vessels. Regulations require this action once NMFS projects that 100 percent of the Northern Gulf of Maine Set-Aside will be harvested. This action is intended to prevent the overharvest of the 2024 Northern Gulf of Maine Set-Aside.
Effective 0001 hour local time, April 20, 2024, through March 31, 2025.
Travis Ford, Fishery Policy Analyst, (978) 281-9233.
The regulations governing fishing activity in the NGOM Scallop Management Area are located in 50 CFR 648.54 and 648.62. These regulations authorize vessels issued a valid Federal scallop permit to fish in the NGOM Scallop Management Area under specific conditions, including the NGOM Set-Aside for the 2024 fishing year, and a State Waters Exemption Program for the State of Maine and Commonwealth of Massachusetts. Section 648.62(b)(2) requires the NGOM Scallop Management Area to be closed to scallop vessels issued Federal Limited Access General Category (LAGC) scallop permits, except as provided below, for the remainder of the fishing year once the NMFS Greater Atlantic Regional Administrator determines that 100 percent of the NGOM Set-Aside is projected to be harvested. Any vessel that holds a Federal NGOM (LAGC B) or Individual Fishing Quota (IFQ) (LAGC A) permit may continue to fish in the Maine or Massachusetts state waters portion of the NGOM Scallop Management Area under the State Waters Exemption Program found in § 648.54 provided it has a valid Maine or Massachusetts state scallop permit and fishes only in that state's respective waters.
Based on trip declarations by federally permitted LAGC scallop vessels fishing in the NGOM Scallop Management Area and analysis of fishing effort, we project that the 2024 NGOM Set-Aside will be harvested as of April 20, 2024. Therefore, in accordance with § 648.62(b)(2), the NGOM Scallop Management Area is closed to all federally permitted LAGC scallop vessels as of April 20, 2024. As of this date, no vessel issued a Federal LAGC scallop permit may fish for, possess, or land scallops in or from the NGOM Scallop Management Area after 0001 local time, April 20, 2024, unless the vessel is fishing exclusively in state waters and is participating in an approved state waters exemption program as specified in § 648.54. Any federally permitted LAGC scallop vessel that has declared into the NGOM Scallop Management Area, complied with all trip notification and observer requirements, and crossed the vessel monitoring system demarcation line on the way to the area before 0001, April 20, 2024, may complete its trip and land scallops. This closure is in effect until the end of the 2024 scallop fishing year, through March 31, 2025.
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest and impracticable. NMFS also finds, pursuant to 5 U.S.C 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons noted below. The NGOM Scallop Management Area opened for the 2024 fishing year on April 1, 2024. The regulations at § 648.60(b)(2) require this closure to ensure that federally permitted scallop vessels do not harvest more than the allocated NGOM Set-Aside. NMFS can only make projections for the NGOM closure date as trips into the area occur on a real-time basis and as activity trends appear. As a result, NMFS can typically make an accurate projection only shortly before the set-aside is harvested. The rapid harvest rate that has occurred in the last 2 weeks makes it more difficult to project a closure well in advance. To allow federally permitted LAGC scallop vessels to continue taking trips in the NGOM Scallop Management Area during the period necessary to publish and receive comments on a proposed rule would result in vessels harvesting more than the 2024 NGOM Set-Aside for the NGOM Scallop Management Area. This would result in excessive fishing effort in the area thereby undermining conservation objectives of the Atlantic Sea Scallop Fishery Management Plan and requiring more restrictive future management measures to make up for the excessive harvest. Also, the public had prior notice and full opportunity to comment on this closure process when we solicited comments during rulemaking for 2024 NGOM management provisions (89 FR 20341, March 22, 2024).
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the South Texas Onion Committee (Committee) to increase the assessment rate established for the 2023-2024 and subsequent fiscal periods from $0.05 to $0.08 per 50-pound container or equivalent for South Texas onions. The proposed assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by May 24, 2024.
Interested persons are invited to submit written comments concerning this proposed rule. Comments can be sent to the Docket Clerk. Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237. Comments can also be sent to the Docket Clerk electronically by Email:
Delaney Fuhrmeister, Marketing Specialist, or Christian Nissen, Chief, Southeast Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375 or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email:
This action, pursuant to 5 U.S.C. 553, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 959, as amended (7 CFR part 959), regulating the handling of onions grown in South Texas. Part 959 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of producers and handlers of onions operating within the area of production.
The Agricultural Marketing Service (AMS) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This proposed action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
This proposed rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires Federal agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined that this proposed rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
This proposed rule has been reviewed under Executive Order 12988—Civil Justice Reform. Under the Order now in effect, South Texas onion handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the proposed assessment rate would be applicable to all assessable onions for the 2023-2024 fiscal period, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under sec. 608c(15)(A) of the Act, any handler subject to an order may file with the USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposed rule would increase the assessment rate for South Texas onions handled under the Order from $0.05 per 50-pound container or equivalent, the rate that was established for the 2020-2021 and subsequent fiscal periods, to $0.08 per 50-pound container or equivalent for the 2023-2024 and subsequent fiscal periods.
Sections 959.41 and 959.42 authorize the Committee, with the approval of AMS, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The
For the 2020-2021 and subsequent fiscal periods, the Committee recommended, and AMS approved, an assessment rate of $0.05 per 50-pound container or equivalent of South Texas onions within the production area. That rate continues in effect from fiscal period to fiscal period until modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other information available to AMS.
The Committee met on November 1, 2023, and unanimously recommended 2023-2024 fiscal period expenditures of $280,657 and an assessment rate of $0.08 per 50-pound container or equivalent of South Texas onions handled for the 2023-2024 and subsequent fiscal periods. In comparison, last fiscal period's budgeted expenditures were $177,657. The proposed assessment rate of $0.08 per 50-pound container or equivalent is $0.03 higher than the rate currently in effect. The Committee recommended increasing the assessment rate to better align assessment revenue with budgeted expenses and to replenish reserves which were depleted between March 2021 and December 2022 when the Committee ceased collecting assessments during a temporary suspension of the Order. The Committee estimates shipments for the 2023-2024 season to be around 3,600,000 50-pound containers or equivalents, an increase from the 3,020,000 50-pound containers or equivalents handled for the 2022-2023 fiscal period.
The major expenditures recommended by the Committee for the 2023-2024 fiscal period include $92,000 for research and marketing; $80,000 for the compliance program; and $37,050 for administrative expenses. By comparison, budgeted expenses for these items during the 2022-2023 fiscal period were $20,000; $50,000; and $37,050, respectively.
At the current assessment rate of $0.05, the expected 3,600,000 50-pound containers or equivalents would generate $180,000 in assessment revenue (3,600,000 50-pound containers or equivalents multiplied by $0.05 assessment rate), which would not cover budgeted expenses. The Committee recommended increasing the assessment rate to meet necessary expenses, fund marketing research, and restore reserves. By increasing the assessment rate by $0.03 to $0.08, assessment income would generate $288,000 in assessment revenue (3,600,000 50-pound containers or equivalents multiplied by $0.08 assessment rate). This amount should be appropriate to ensure the Committee has sufficient revenue to fully fund its recommended 2023-2024 fiscal period budgeted expenditures and to begin replenishing the Committee's reserve funds.
The Committee derived the recommended assessment rate by considering anticipated fiscal period expenses, expected shipments of onions, and the amount of funds available in the financial reserve. Income derived from handler assessments ($288,000), and other sources including interest income, would be adequate to cover budgeted expenses ($280,657). Funds available in the financial reserve (currently about $78,000) would be kept within the maximum permitted by the Order (approximately two fiscal periods' expenses as authorized in § 959.43).
The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other available information. Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or AMS. Committee meetings are open to the public and interested persons may express their views at these meetings. AMS will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2023-2024 fiscal period budget, and those for subsequent fiscal periods, will be reviewed and, as appropriate, approved by AMS.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are 23 handlers of South Texas onions subject to regulation under the Order and approximately 55 producers of South Texas onions in the production area. At the time this analysis was prepared, the Small Business Administration (SBA) defined small agricultural service firms as those having annual receipts of less than $34,000,000 (North American Industry Classification System (NAICS) code 115114, Postharvest Crop Activities), and small agricultural producers of onions as those having annual receipts of less than $3,750,000 (NAICS code 111219, Other Vegetable farming) (13 CFR 121.201).
According to data from Market News and production records from the Committee, the average price for South Texas onions handled during the 2022-2023 season was approximately $23.25 per 50-pound container or equivalent, with total shipments of around 3,020,000 50-pound containers or equivalents shipped. Based on the average terminal market price and shipment information, the number of handlers, and assuming a normal distribution, the majority of South Texas onion handlers have estimated average annual receipts of significantly less than $34,000,000 ($23.25 multiplied by 3,020,000 50-pound containers or equivalents equals $70,215,000, divided by 23 handlers equals $3,052,826 per handler).
In addition, based on data from the National Agricultural Statistics Service and the Committee, the average price producers received for South Texas onions during the 2022-2023 season was approximately $17 per 50-pound container or equivalent, with total shipments of around 3,020,000 million 50-pound containers or equivalents. Using the average price producers received and shipment information, the number of producers, and assuming a normal distribution, the majority of producers have estimated average annual receipts of significantly less than $3,750,000 ($17 multiplied by 3,020,000 50-pound containers or equivalents equals $51,340,000, divided by 55 producers equals $933,455 per producer). Thus, the majority of handlers and producers of South Texas
This proposal would increase the assessment rate collected from handlers for the 2023-2024 and subsequent fiscal periods from $0.05 to $0.08 per 50-pound container or equivalent of South Texas onions. The Committee unanimously recommended 2023-2024 fiscal period expenditures of $280,657 and an assessment rate of $0.08 per 50-pound container or equivalent of South Texas onions. The proposed assessment rate of $0.08 is $0.03 higher than the current rate. The Committee expects the industry to handle 3,600,000 50-pound container or equivalent of South Texas onions during the 2023-2024 fiscal period. Thus, the $0.08 per 50-pound container or equivalent rate should provide $288,000 in assessment income (3,600,000 50-pound containers or equivalents multiplied by $0.08 assessment rate). Income derived from handler assessments and other sources including interest income, should be adequate to cover budgeted expenses.
The major expenditures recommended by the Committee for the 2023-2024 fiscal period include $92,000 for research and marketing; $80,000 for the compliance program; and $37,050 for administrative expenses. By comparison, budgeted expenses for these items during the 2022-2023 fiscal period were $20,000; $50,000; and $37,050, respectively.
The Committee recommended increasing the assessment rate to meet necessary expenses, fund marketing research, and restore reserves, which were depleted between March 2021 and December 2022 when the Committee ceased collecting assessments during a temporary suspension of the marketing order. The Committee estimates shipments for the 2023-2024 season to be around 3,600,000 50-pound containers or equivalents. Given the estimated number of shipments, the current assessment rate of $0.05 would generate $180,000 in assessment income (3,600,000 50-pound containers or equivalents multiplied by $0.05 assessment rate), which would not cover budgeted expenses. By increasing the assessment rate by $0.03 to $0.08, assessment income would be $288,000 (3,600,000 50-pound containers or equivalents multiplied by $0.08 assessment rate). This amount should provide sufficient funds to meet anticipated 2023-2024 expenses, while adding money to the financial reserve.
Prior to arriving at this budget and proposed assessment rate, the Committee discussed various alternatives, including maintaining the current assessment rate of $0.05 per 50-pound container or equivalent or increasing the assessment rate to $0.06. However, neither of these assessment rates would provide enough income to cover budgeted expenses. Consequently, these alternative assessment rates were rejected.
A review of historical and preliminary information pertaining to the upcoming fiscal period indicates the average grower price for the 2023-2024 season should be approximately $16.00 per 50-pound container or equivalent of South Texas onions. Therefore, the estimated assessment revenue for the 2023-2024 crop year as a percentage of total grower revenue would be about 0.5 percent ($0.08 assessment rate divided by $16.00 multiplied by 100).
This proposed action would increase the assessment obligation imposed on South Texas onion handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, these costs are expected to be offset by the benefits derived by the operation of the Order.
The Committee's meetings are widely publicized throughout the South Texas onion industry and all interested persons are invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the November 1, 2023, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this action on small businesses.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements would be necessary as a result of this proposed rule. Should any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large South Texas onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendations submitted by the Committee and other available information, AMS has determined that this proposed rule is consistent with and would effectuate the purposes of the Act.
A 30-day comment period is provided to allow interested persons to comment on this proposed rule. All written comments timely received will be considered before a final determination is made on this rulemaking.
Marketing agreements, Onions, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR part 959 as follows:
7 U.S.C. 601-674.
On and after August 1, 2023, an assessment rate of $0.08 per 50-pound container or equivalent is established for South Texas onions.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking.
The Energy Policy and Conservation Act, as amended (“EPCA”), prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including dishwashers. In this notice of proposed rulemaking, the U.S. Department of Energy (“DOE”) proposes amended energy conservation standards for dishwashers identical to those set forth in a direct final rule published elsewhere in this issue of the
DOE will accept comments, data, and information regarding this NOPR no later than August 12, 2024. Comments regarding the likely competitive impact of the proposed standard should be sent to the Department of Justice contact listed in the
See section IV of this document, “Public Participation,” for details. If DOE withdraws the direct final rule published elsewhere in this issue of the
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
(1)
(2)
(3)
No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section VII of this document.
The docket web page can be found at
EPCA requires the Attorney General to provide DOE a written determination of whether the proposed standard is likely to lessen competition. The U.S. Department of Justice Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the proposed standard. Interested persons may contact the Antitrust Division at
Dr. Carl Shapiro, 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) 287-5649. Email:
Ms. Amelia Whiting, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (240) 306-7097. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”),
Pursuant to EPCA, any new or amended energy conservation standard must, among other things, be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in
In light of the above and under the authority provided by 42 U.S.C. 6295(p)(4)(A)(i), DOE is proposing this rule amending the energy conservation standards for dishwashers and is concurrently issuing a direct final rule elsewhere in this issue of the
In accordance with these and other statutory provisions discussed in this document, DOE proposes amended energy conservation standards for dishwashers. The standards are expressed in terms of maximum estimated annual energy use (“EAEU”) in kilowatt hours per year (“kWh/yr”), and maximum per cycle water consumption in gallons per cycle (“gal/cycle”), as determined in accordance with DOE's dishwashers test procedure codified at title 10 of the Code of Federal Regulations (“CFR”) part 430, subpart B, appendix C2 (“appendix C2”).
Table I.1 presents the proposed amended standards for dishwashers. The proposed standards are the same as those recommended by the Joint Agreement. These standards would apply to all products listed in Table I.1 and manufactured in, or imported into, the United States starting on [
The following section briefly discusses the statutory authority underlying this proposed rule, as well as some of the relevant historical background related to the establishment of standards for dishwashers.
EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include dishwashers, the subject of this document. (42 U.S.C. 6292(a)(6)) EPCA prescribed energy conservation design standards for these products (42 U.S.C. 6295(g)(1) and (10)(A)), and directed DOE to conduct future rulemakings to determine whether to amend these standards. (42 U.S.C. 6295(g)(4) and (10)(B)). EPCA further provides that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1))
In establishing energy conservation standards with both energy and water use performance standards for dishwashers manufactured after January 1, 2010, Congress directed DOE to “determine[e] whether to amend” those standards. (42 U.S.C. 6295(g)(10)(B)) Congress's directive, in section 6295(g)(10)(B), to consider whether “to amend the standards in effect for dishwashers” refers to “the standards” established in the immediately preceding section, 6295(g)(10)(A). There, Congress established energy conservation standards with
DOE similarly understands its authority under 42 U.S.C. 6295(m) to amend “standards” for covered products to include amending both the energy and water use performance standards for dishwashers. Neither section 6295(g)(10)(B) nor section 6295(m) limit their application to “energy use standards.” Rather, they direct DOE to consider amending “the standards,” 42 U.S.C. 6295(g)(10)(B), or simply “standards,”
Finally, DOE is proposing these standards in this companion NOPR to a direct final rule pursuant to 42 U.S.C. 6295(p)(4). That section also extends broadly to any “energy or water conservation standard” without qualification. Thus, pursuant to section 6295(p)(4), DOE may, so long as other relevant conditions are satisfied, promulgate a direct final rule that includes water use performance standards for a covered product like dishwashers, where Congress has already established energy and water use performance standards.
DOE is aware that the definition of “energy conservation standard,” in section 6291(6), expressly references water use only for four products specifically named: showerheads, faucets, water closets, and urinals.
The energy conservation program was initially limited to addressing the energy use, meaning electricity and fossil fuels, of 13 covered products (
Later, Congress further expanded the scope of the energy conservation program several times. For instance, Congress added products and energy conservation standards directly to 42 U.S.C. 6295, the section of EPCA that contains statutorily prescribed standards as well as DOE's standard-setting authorities.
Congress also expanded the scope of the energy conservation program by directly adding water use performance standards for certain products to 42 U.S.C. 6295. For example, in the Energy Policy Act of 2005, Congress added a water use performance standard (but no energy use performance standard) for commercial prerinse spray valves (“CPSVs”) and did so without updating the list of covered products in 42 U.S.C. 6292 to include CPSVs and without adding CPSVs to the list of enumerated products with water use performance standards in the “energy conservation standard” definition in 42 U.S.C. 6291(6). In the Energy Independence and Security Act of 2007 (“EISA 2007”), Congress amended 42 U.S.C. 6295 by prescribing energy conservation standards for residential clothes washers and dishwashers that included both energy and water use performance standards. (
In considering how to treat these products and standards that Congress has directly added to 42 U.S.C. 6295 without making conforming changes to the rest of the statute, including the list of covered products in 42 U.S.C. 6292, and the water-use products in the definition of an “energy conservation standard,” DOE construes the statute as a whole. When Congress added products and standards directly to 42 U.S.C. 6295, it must have meant those products to be covered products and those standards to be energy conservation standards, given that the purpose of 42 U.S.C. 6295 is to provide “energy conservation standards applicable to covered products” and to “authorize the Secretary to prescribe amended or new energy conservation standards for each type (or class) of covered product.” Elsewhere in EPCA, the statute's references to covered products and energy conservation standards can only be read coherently as including the covered products and energy conservation standards Congress added directly to section 6295, even if Congress did not make conforming edits to 6291 or 6292. For example, manufacturers are prohibited from “distribut[ing] in commerce any new
It would similarly defeat congressional intent for a manufacturer to be permitted to distribute a covered product,
DOE recognizes that some might argue that Congress's specific reference in section 6291(6) to water standards for showerheads, faucets, water closets, and urinals could “create a negative implication” that energy conservation standards for other covered products may not include water use standards.
The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (See 42 U.S.C. 6297(d))
Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6295(r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 42 U.S.C. 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedures for dishwashers appear at title 10 of the CFR part 430, subpart B, appendix C1 (“appendix C1”) and appendix C2.
DOE must follow specific statutory criteria for prescribing new or amended standards for covered products, including dishwashers. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary of Energy (“Secretary”) determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
Moreover, DOE may not prescribe a standard if DOE determines by rule that the standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(B)) In deciding whether a proposed standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination after receiving comments on the proposed standard, and by considering, to the greatest extent practicable, the following seven statutory factors:
(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary considers relevant.
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii))
EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))
EPCA specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. A rule prescribing an energy conservation standard for a type (or class) of product must specify a different standard level for a type or class of products that has the same function or intended use if DOE determines that products within
Additionally, pursuant to the amendments contained in EISA 2007, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE's current test procedures for dishwashers address standby mode and off mode energy use. The standards proposed in this rule incorporate standby mode and off mode energy use.
Finally, EISA 2007 amended EPCA, in relevant part, to grant DOE authority to directly issue a final rule (
A NOPR that proposes an identical energy or water conservation standard must be published simultaneously with the direct final rule, and DOE must provide a public comment period of at least 110 days on this proposal. (42 U.S.C. 6295(p)(4)(A)-(B)) Based on the comments received during this period, the direct final rule will either become effective, or DOE will withdraw it not later than 120 days after its issuance if (1) one or more adverse comments is received, and (2) DOE determines that those comments, when viewed in light of the rulemaking record related to the direct final rule, may provide a reasonable basis for withdrawal of the direct final rule under 42 U.S.C. 6295(o). (42 U.S.C. 6295(p)(4)(C)) Receipt of an alternative joint recommendation may also trigger a DOE withdrawal of the direct final rule in the same manner. (
DOE has previously explained its interpretation of its direct final rule authority. In a final rule amending the Department's “Procedures, Interpretations and Policies for Consideration of New or Revised Energy Conservation Standards for Consumer Products” at 10 CFR part 430, subpart C, appendix A, DOE noted that it may issue standards recommended by interested persons that are fairly representative of relative points of view as a direct final rule when the recommended standards are in accordance with 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. 86 FR 70892, 70912 (Dec. 13, 2021). But the direct final rule provision in EPCA, under which this proposed rule is issued, does not impose additional requirements applicable to other standards rulemakings, which is consistent with the unique circumstances of rules issued through consensus agreements under DOE's direct final rule authority.
In a direct final rule published on May 30, 2012 (“May 2012 Direct Final Rule”), DOE adopted the current energy conservation standards for dishwashers manufactured on or after May 30, 2013, consistent with the levels proposed in a letter submitted to DOE by groups representing manufacturers, energy and environmental advocates, and consumer groups on July 30, 2010. 77 FR 31918, 31918-31919. This collective set of comments, titled “Agreement on Minimum Federal Efficiency Standards, Smart Appliances, Federal Incentives and Related Matters for Specified Appliances” (the “July 2010 Joint Petition”),
In a final determination published on December 13, 2016 (“December 2016 Final Determination”), DOE concluded that amended energy conservation standards would not be economically justified at any level above the standards established in the May 2012 Direct Final Rule, and therefore determined not to amend the standards. 81 FR 90072. The current energy and water conservation standards are set forth in DOE's regulations at 10 CFR part 430, § 430.32(f), and are repeated in Table II.1. The currently applicable DOE test procedure for dishwashers appears at appendix C1.
The regulatory text at 10 CFR 430.32(f) references the Association of Home Appliance Manufacturers (“AHAM”) standard AHAM DW-1-2020
On December 22, 2021, DOE published a test procedure NOPR (“December 2021 TP NOPR”) proposing amendments to the dishwasher test procedure at appendix C1 and a new test procedure at appendix C2. 86 FR 72738. On January 18, 2023, DOE published a final rule amending the test procedure at appendix C1 and establishing a new test procedure at appendix C2 (“January 2023 TP Final Rule”). 88 FR 3234. The new appendix C2 specifies updated annual cycles and low-power mode hours, both of which are used to calculate the EAEU metric, and introduces a minimum cleaning performance threshold to validate the selected test cycle. 88 FR 3234, 3236.
Subsequently, on July 27, 2023, DOE published a final rule adding clarifying instructions to the dishwasher test procedure at appendix C1 regarding the allowable dosing options for each type of detergent; clarifying the existing detergent reporting requirements; and adding an enforcement provision for dishwashers to specify the detergent and dosing method that DOE would use for any enforcement testing of dishwasher models certified in accordance with the applicable dishwasher test procedure prior to July 17, 2023 (
EPCA authorizes DOE to design test procedures that measure energy efficiency, energy use, water use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(3)) In general, a consumer-acceptable level of cleaning performance (
The January 2023 TP Final Rule established a new test procedure at appendix C2, which includes provisions for a minimum cleaning index threshold of 70 to validate the selected test cycle. 88 FR 3234, 3261. The cleaning index is calculated based on the number and size of particles remaining on each item of the test load at the completion of a dishwasher cycle as specified in AHAM DW-2-2020.
DOE adopted a minimum cleaning performance threshold in appendix C2 to determine if a dishwasher, when tested according to the DOE test procedure, “completely washes a normally soiled load of dishes,” so as to better represent consumer use of the product (
The standards proposed in this NOPR are expressed in terms of the EAEU and water consumption metrics as measured according to the newly established test procedure contained in appendix C2.
On September 25, 2023, DOE received a joint statement (
A court decision issued after DOE received the Joint Agreement is also relevant to this rule. On March 17, 2022, various States filed a petition seeking review of a final rule revoking two final rules that established product classes for dishwashers with a cycle time for the normal cycle of 60 minutes or less, top-loading residential clothes washers and certain classes of consumer clothes dryers with a cycle time of less than 30 minutes, and front-loading residential clothes washers with a cycle time of less than 45 minutes (collectively, “short-cycle product classes”). The petitioners argued that the final rule revoking the short-cycle product classes violated EPCA and was arbitrary and capricious. On January 8, 2024, the United States Court of Appeals for the Fifth Circuit granted the petition for review and remanded the matter to DOE for further proceedings consistent with the Fifth Circuit's opinion.
On February 14, 2024, following the Fifth Circuit's decision in
The Joint Agreement recommends amended standard levels for dishwashers as presented in Table II.2. (Joint Agreement, No. 55 at p. 5) Details of the Joint Agreement recommendations for other products are provided in the Joint Agreement posted in the docket.
DOE has evaluated the Joint Agreement and believes that it meets the EPCA requirements for issuance of a direct final rule. As a result, DOE published a direct final rule amending energy conservation standards for dishwashers elsewhere in this issue of the
For further background information on these proposed standards and the supporting analyses, please see the direct final rule published elsewhere in this issue of the
When the Joint Agreement was submitted, DOE was conducting a rulemaking to consider amending the standards for dishwashers. As part of that process, on May 19, 2023, DOE published a NOPR and announced a public meeting (“May 2023 NOPR”) seeking comment on its proposed amended standard to inform its decision consistent with its obligations under EPCA and the Administrative Procedure Act (“APA”). 88 FR 32514. DOE held a public meeting on June 8, 2023, to discuss and receive comments on the NOPR and NOPR TSD. The NOPR TSD is available at:
When considering new or amended energy conservation standards, the standards that DOE adopts for any type (or class) of covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i)) The new or amended standard must also result in significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
DOE considered the impacts of amended standards for dishwashers at each trial standard level (“TSL”), beginning with the maximum technologically feasible (“max-tech”) level, to determine whether that level was economically justified. Where the max-tech level was not justified, DOE then considered the next most efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy. DOE refers to this process as the “walk-down” analysis.
To aid the reader as DOE discusses the benefits and/or burdens of each TSL, tables in this section present a summary of the results of DOE's quantitative analysis for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. These include the impacts on identifiable subgroups of consumers who may be disproportionately affected by a national standard and impacts on employment.
DOE also notes that the economics literature provides a wide-ranging discussion of how consumers trade off upfront costs and energy savings in the absence of government intervention. Much of this literature attempts to explain why consumers appear to undervalue energy efficiency improvements. There is evidence that consumers undervalue future energy savings as a result of (1) a lack of information; (2) a lack of sufficient salience of the long-term or aggregate benefits; (3) a lack of sufficient savings to warrant delaying or altering purchases; (4) excessive focus on the short term, in the form of inconsistent weighting of future energy cost savings relative to available returns on other investments; (5) computational or other difficulties associated with the evaluation of relevant tradeoffs; and (6) a divergence in incentives (for example, between renters and owners, or builders and purchasers). Having less than perfect foresight and a high degree of uncertainty about the future, consumers may trade off these types of investments at a higher than expected rate between current consumption and uncertain future energy cost savings.
In DOE's current regulatory analysis, potential changes in the benefits and costs of a regulation due to changes in consumer purchase decisions are included in two ways. First, if consumers forego the purchase of a product in the standards case, this decreases sales for product manufacturers, and the impact on manufacturers attributed to lost revenue is included in the manufacturing impact analysis (“MIA”). Second, DOE accounts for energy and water savings attributable only to products actually used by consumers in the standards case; if a standard decreases the number of products purchased by consumers, this decreases the potential energy and water savings from an energy conservation standard. DOE provides estimates of shipments and changes in the volume of product purchases in chapter 9 of the direct final rule TSD
Table III.1 and Table III.2 summarize the quantitative impacts estimated for each TSL for dishwashers. The national impacts are measured over the lifetime of dishwashers purchased in the 30-year period that begins in the anticipated year of compliance with amended standards (2027-2056). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle (“FFC”) results. The consumer operating savings are inclusive of energy and water. DOE is presenting monetized benefits of greenhouse gas (“GHG”) emissions reductions in accordance with the applicable Executive Orders and DOE would reach the same conclusion presented in this notice in the absence of the social cost of greenhouse gases, including the Interim Estimates presented by the Interagency Working Group. The efficiency levels contained in each TSL are described in section V.A of the direct final rule published elsewhere in this issue of the
DOE first considered TSL 5, which represents the max-tech efficiency levels for both product classes. Specifically, for a standard-size dishwasher, this efficiency level includes design options considered at the lower efficiency levels (
The cumulative emissions reductions at TSL 5 would be 38.89 Mt of CO
Using a 7-percent discount rate for consumer benefits and costs, health benefits from reduced SO
At TSL 5, the average LCC impact would be a loss of $145 for standard-size dishwashers and a $4 savings for compact-size dishwashers. The simple payback period would be 15.9 years for standard-size dishwashers and 5.5 years for compact-size dishwashers. The fraction of consumers experiencing a net LCC cost would be 97 percent for standard-size dishwashers and 54 percent for compact-size dishwashers. Notably, for the standard-size product class, which as discussed represents 98 percent of the market, TSL 5 (which includes EL 4 for this product class) would increase the first cost by $178. This associated increase in first cost at TSL 5 for standard-size dishwashers could impact the number of new shipments by approximately less than 2 percent annually due to consumers shifting to extending the lives of their existing dishwashers beyond their useful life, repairing instead of replacing, or handwashing their dishes. In the national impact analysis, DOE modeled a scenario where part of this 2-percent of consumers forgoing the purchase of a new dishwasher due to price increases would substitute to handwashing. This results in a small increase in energy and water use, which is then subtracted from the energy and water savings projected to result from the proposed amended standards at TSL5.
For the low-income consumer group, the average LCC impact would be a loss of $29 for standard-size dishwashers and a savings of $62 for compact-size dishwashers. The simple payback period would be 6.6 years for standard-size dishwashers and 2.3 years for compact-size dishwashers. The fraction of low-income consumers experiencing a net LCC cost would be 46 percent for standard-size dishwashers and 26 percent for compact-size dishwashers. For the senior-only households consumer group, the average LCC impact would be a loss of $159 for standard-size dishwashers and a loss of $14 for compact-size dishwashers. The simple payback period would be 19.8 years for standard-size dishwashers and 6.8 years for compact-size dishwashers. The fraction of senior-only consumers experiencing a net LCC cost would be 98 percent for standard-size dishwashers and 62 percent for compact-size dishwashers. For the consumer sub-group of well-water households, the average LCC impact would be a loss of $162 for standard-size dishwashers and a loss of $19 for compact-size dishwashers. The simple payback period would be 21.4 years for standard-size dishwashers and 6.9 years for compact-size dishwashers. The fraction of well-water consumers experiencing a net LCC cost would be 98 percent for standard-size dishwashers and 63 percent for compact-size dishwashers.
At TSL 5, the projected change in INPV ranges from a decrease of $334.4 million to a decrease of $414.6 million, which corresponds to decreases of 54.5 percent and 43.7 percent, respectively. Industry conversion costs could reach $681.0 million at this TSL, as manufacturers work to redesign their portfolios of model offerings, transition their standard-size dishwasher platforms entirely to stainless steel tubs, and renovate manufacturing facilities to accommodate changes to the production line and manufacturing processes.
DOE estimates that less than 1 percent of dishwasher shipments currently meet the max-tech levels. Standard-size dishwashers account for approximately 98 percent of annual shipments. Of the 19 standard-size dishwasher original equipment manufacturers (“OEMs”), only one OEM, which accounts for approximately 2 percent of basic models in the CCD, currently offers products that meet the max-tech efficiencies that would be required. All manufacturers interviewed, which together account for approximately 90 percent of the industry shipments, expressed uncertainty as to whether they could reliably meet the standard-size dishwasher max-tech efficiencies and the cleaning performance threshold and noted meeting max-tech would require a platform redesign and significant investment in tooling, equipment, and production line modifications. Many manufacturers would need to increase production capacity of stainless steel tub designs. Some manufacturers noted that a max-tech standard could necessitate new tub architectures.
For compact-size dishwashers, which account for the remaining 2 percent of annual shipments, DOE estimates that 14 percent of shipments currently meet the required max-tech efficiencies. Of the five compact-size dishwasher OEMs, two OEMs currently offer compact-size products that meet max-tech. At TSL 5, compact-size countertop dishwashers with four or more place settings and in-sink dishwashers with less than four place settings are not currently available in the market. Meeting TSL 5 is technologically feasible for those products; however, DOE expects that it would take significant investment relative to the size of the compact-size dishwasher market to redesign products to meet the max-tech efficiencies.
Based on the above considerations, the Secretary tentatively concludes that at TSL 5 for dishwashers, the benefits of energy and water savings, emissions reductions, and the estimated monetary value of the health benefits and climate benefits from emissions reductions would be outweighed by the negative NPV of consumer benefits and the impacts on manufacturers, including the large potential reduction in INPV. At TSL 5, a majority of standard-size dishwasher consumers (97 percent) would experience a net cost and the average LCC loss is $145 for this product class. Additionally, at TSL 5, manufacturers would need to make significant upfront investments to redesign product platforms and update manufacturing facilities. Some manufacturers expressed concern that they would not be able to complete product and production line updates within the 3-year conversion period. Consequently, the Secretary has tentatively concluded that TSL 5 is not economically justified.
DOE next considered TSL 4, which represents the highest efficiency levels providing positive LCC savings. TSL 4 comprises the gap-fill efficiency level between the ENERGY STAR V. 7.0 level and the ENERGY STAR V. 6.0 level (EL 2) for standard-size dishwashers and the max-tech efficiency level for compact-size dishwashers. Specifically, for a standard-size dishwasher, this efficiency level includes design options considered at the lower efficiency levels (
The cumulative emissions reductions at TSL 4 would be 10.33 Mt of CO
Using a 7-percent discount rate for consumer benefits and costs, health benefits from reduced SO
At TSL 4, the average LCC impact would be a savings of $17 for standard-size dishwashers and $4 for compact-size dishwashers. The simple payback period would be 3.9 years for standard-size dishwashers and 5.5 years for compact-size dishwashers. The fraction of consumers experiencing a net LCC cost would be 3 percent for standard-size dishwashers and 54 percent for compact-size dishwashers.
For the low-income consumer group, the average LCC impact would be a savings of $21 for standard-size dishwashers and $62 for compact-size dishwashers. The simple payback period would be 1.6 years for standard-size dishwashers and 2.3 years for compact-size dishwashers. The fraction of low-income consumers experiencing a net LCC cost would be 2 percent for standard-size dishwashers and 26 percent for compact-size dishwashers. For the senior-only households consumer group, the average LCC impact would be a savings of $13 for standard-size dishwashers and a loss of $14 for compact-size dishwashers. The simple payback period would be 4.9 years for standard-size dishwashers and 6.8 years for compact-size dishwashers. The fraction of senior-only consumers experiencing a net LCC cost would be 4 percent for standard-size dishwashers and 62 percent for compact-size dishwashers. For the consumer sub-group of well-water households, the average LCC impact would be a savings of $12 for standard-size dishwashers and a loss of $19 for compact-size dishwashers. The simple payback period would be 5.5 years for standard-size dishwashers and 6.9 years for compact-size dishwashers. The fraction of well-water consumers experiencing a net LCC cost would be 4 percent for standard-size dishwashers and 63 percent for compact-size dishwashers.
At TSL 4, the projected change in INPV ranges from a decrease of $155.9 million to a decrease of $103.1 million, which corresponds to decreases of 21.2 percent and 14.0 percent, respectively. Industry conversion costs could reach $137.2 million at this TSL as some manufacturers of standard-size dishwashers would redesign products to enable improved controls and better design tolerances and manufacturers of certain compact-size dishwashers would redesign products to meet max-tech.
DOE estimates that approximately 10 percent of dishwasher shipments currently meet the TSL 4 efficiencies, of which approximately 9 percent of standard-size dishwasher shipments and 14 percent of compact-size dishwasher shipments meet the required efficiencies. Compared to max-tech, more manufacturers offer standard-size dishwashers that meet the required efficiencies. Furthermore, since the May 2023 NOPR, more manufacturers now offer standard-size dishwasher models that meet the TSL 4 efficiencies. DOE believes that the recent introduction of more high-efficiency standard-size dishwashers is largely in response to ENERGY STAR V. 7.0, which went into effect in July 2023. Of the 19 OEMs offering standard-size products, 16 OEMs offer products that meet the efficiency level that would be required. For compact-size dishwashers, TSL 4 represents the same efficiency level as for TSL 5. Just as with TSL 5, compact-size countertop dishwashers with four or more place settings and in-sink dishwashers with less than four place settings are not currently available in the market at TSL 4 levels. Meeting TSL 4 is technologically feasible for those products; however, DOE expects that it would take significant investment (nearly $11 million) relative to the size of the compact-size dishwasher market (no-new-standards case INPV of $15.4 million) for them to meet the max-tech efficiencies.
Based upon the above considerations, the Secretary tentatively concludes that at TSL 4 for dishwashers, the benefits of energy and water savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the health benefits and climate benefits from emissions reductions would be outweighed by negative LCC savings for the senior-only households for the compact-size dishwasher product class and the high percentage of consumers with net costs for the compact-size dishwasher product class. Consequently, the Secretary has tentatively concluded that TSL 4 is not economically justified.
DOE then considered the Recommended TSL (
The cumulative emissions reductions at the Recommended TSL would be 9.48 Mt of CO
Using a 7-percent discount rate for consumer benefits and costs, health benefits from reduced SO
At the Recommended TSL, the average LCC impact would be a savings of $17 for standard-size dishwashers and $32 for compact-size dishwashers. The simple payback period would be 3.9 years for standard-size dishwashers and 0.0 years for compact-size dishwashers. The fraction of consumers experiencing a net LCC cost would be 3 percent for standard-size dishwashers and 0 percent for compact-size dishwashers.
For the low-income consumer group, the average LCC impact would be a savings of $21 for standard-size dishwashers and $39 for compact-size dishwashers. The simple payback period would be 1.6 years for standard-size dishwashers and 0.0 years for compact-size dishwashers. The fraction of low-income consumers experiencing a net LCC cost would be 2 percent for standard-size dishwashers and 0 percent for compact-size dishwashers. For the senior-only households consumer group, the average LCC impact would be a savings of $13 for standard-size dishwashers and $26 for compact-size dishwashers. The simple payback period would be 4.9 years for standard-size dishwashers and 0.0 years for compact-size dishwashers. The fraction of senior-only consumers experiencing a net LCC cost would be 4 percent for standard-size dishwashers and 0 percent for compact-size dishwashers. For the consumer sub-group of well water households, the average LCC impact would be a savings of $12 for standard-size dishwashers and $23 for compact-size dishwashers. The simple payback period would be 5.5 years for standard-size dishwashers and 0.0 years for compact-size dishwashers. The fraction of well water consumers experiencing a net LCC cost would be 4 percent for standard-size dishwashers and 0 percent for compact-size dishwashers.
At the Recommended TSL, the projected change in INPV ranges from a decrease of $148.8 million to a decrease of $96.7 million, which corresponds to decreases of 20.2 percent and 13.1 percent, respectively. Industry conversion costs could reach $126.9 million at this TSL as some manufacturers would redesign standard-size products to enable improved controls and better design tolerances.
DOE estimates that approximately 11 percent of dishwasher shipments currently meet the Recommended TSL efficiencies, of which approximately 9 percent of standard-size dishwasher shipments and 87 percent of compact-size dishwasher shipments meet the required efficiencies. At this level, the decrease in conversion costs compared to TSL 4 would be entirely due to the lower efficiency level required for compact-size dishwashers, as the efficiency level that would be required for standard-size dishwashers is the same as for TSL 4 (EL 2). All the compact-size dishwasher OEMs currently offer products that meet the Recommended TSL. At this level, DOE expects manufacturers of compact-size dishwashers would implement improved controls, which would likely require minimal upfront investment.
After considering the analysis and weighing the benefits and burdens, the Secretary has tentatively concluded that a standard set at the Recommended TSL for dishwashers would be economically justified. At this TSL, the shipments weighted-average LCC savings for both product classes would be $17. The shipments weighted-average share of consumers with a net LCC cost for both product classes would be 3 percent. For all consumer sub-groups, the LCC savings would be positive and the net share of consumers with a net LCC cost would be below 5 percent for both product classes. The FFC national energy and water savings would be significant and the NPV of consumer benefits would be $2.90 billion and $1.23 billion using both a 3-percent and 7-percent discount rate respectively. Notably, the benefits to consumers would vastly outweigh the cost to manufacturers. At the Recommended TSL, the NPV of consumer benefits, even measured at the more conservative discount rate of 7 percent, is over eight times higher than the maximum estimated manufacturers' loss in INPV. The standard levels at the Recommended TSL would be economically justified even without weighing the estimated monetary value of emissions reductions. When those emissions reductions are included—representing $0.54 billion in climate benefits (associated with the average SC-GHG at a 3-percent discount rate), and $0.94 billion (using a 3-percent discount rate) or $0.37 billion (using a 7-percent discount rate) in health benefits—the rationale becomes stronger still.
The proposed standards would be applicable to the regulated cycle type (
The test procedure in appendix C2, which includes provisions for a minimum cleaning index threshold of 70 to validate the selected test cycle, will go into effect at such time as compliance would be required with any amended energy conservation standards. At the Recommended TSL, both standard-size and compact-size dishwasher models achieving the efficiencies, as measured by appendix C2, including the cleaning performance threshold, are readily available on the market.
As stated, DOE conducts the walk-down analysis to determine the TSL that represents the maximum improvement in energy efficiency that is technologically feasible and economically justified as required under EPCA. The walk-down is not a comparative analysis, as a comparative analysis would result in the maximization of net benefits instead of energy savings that are technologically feasible and economically justified, which would be contrary to the statute. 86 FR 70892, 70908. Although DOE has not conducted a comparative analysis to select the proposed amended energy conservation standards, DOE considers amended standard levels for dishwashers by grouping the efficiency levels for each product class into TSLs and evaluates all analyzed efficiency levels in its LCC analysis and all efficiency levels with positive LCC savings for the NIA and MIA. For both standard-size and compact-size dishwashers, the proposed standard level represents the maximum energy savings that would not result in a large percentage of consumers experiencing a net LCC cost. The efficiency levels at the proposed standard level would result in positive LCC savings for both product classes, significantly reduce the number of consumers experiencing a net cost, and reduce the decrease in INPV and conversion costs to the point where DOE has tentatively concluded they are economically justified, as discussed for the Recommended TSL in the preceding paragraphs.
At the Recommended standard level for the standard-size product class, the average LCC savings would be $17, the percentage of consumers experiencing a net cost would be 3 percent (see Table V.3 of the direct final rule published elsewhere in this issue of the
Therefore, based on the previous considerations, DOE proposes the energy conservation standards for dishwashers at the Recommended TSL.
While DOE considered each potential TSL under the criteria laid out in 42 U.S.C. 6295(o) as discussed in the preceding paragraphs, DOE notes that the Recommended TSL for dishwashers proposed in this NOPR is part of a multi-product Joint Agreement covering six rulemakings (refrigerators, refrigerator-freezers, and freezers; miscellaneous refrigeration products; consumer conventional cooking products; residential clothes washers; consumer clothes dryers; and dishwashers). The signatories indicate that the Joint Agreement for the six rulemakings should be considered as a joint statement of recommended standards, to be adopted in its entirety. As discussed in section V.B.2.e of the direct final rule published elsewhere in this issue of the
The proposed energy conservation standards for dishwashers, which are expressed in EAEU and per-cycle water consumption, shall not exceed the values shown in Table III.3.
The benefits and costs of the proposed standards can also be expressed in terms of annualized values. The annualized net benefit is (1) the annualized national economic value (expressed in 2022$) of the benefits from operating products that meet the proposed standards (consisting primarily of operating cost savings from using less energy and water, minus increases in product purchase costs, and (2) the annualized monetary value of the climate and health benefits.
Table III.4 shows the annualized values for dishwashers under the recommended TSL, expressed in 2022$. The results under the primary estimate are as follows.
Using a 7-percent discount rate for consumer benefits and costs and NO
Using a 3-percent discount rate for all benefits and costs, the estimated cost of the proposed standards would be $14.0 million per year in increased equipment costs, while the estimated annual benefits would be $171.2 million in reduced operating costs, $29.0 million in climate benefits, and $50.8 million in health benefits. In this case, the net benefit would amount to $237.0 million per year.
DOE will accept comments, data, and information regarding this proposed rule until the date provided in the
Submitting comments via
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
Submitting comments via email, hand delivery/courier, or postal mail. Comments and documents submitted via email, hand delivery/courier, or postal mail also will be posted to
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
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).
As stated previously, if DOE withdraws the direct final rule published elsewhere in this issue of the
DOE proposes adding a new paragraph (3) into section 10 CFR 430.32(f) to provide that each energy and water conservation for each dishwasher category is separate and severable from one another, and that if any energy or water conservation standard is stayed or determined to be invalid by a court of competent jurisdiction, the remaining standards shall continue in effect. This severability clause is intended to clearly express the Department's intent that should an energy or water conservation standard for any product class be stayed or invalidated, the other conservation standards shall continue in effect. In the event a court were to stay or invalidate one or more energy or water conservation standards for any product class as finalized, the Department would want the remaining energy conservation standards as finalized to remain in full force and legal effect.
The regulatory reviews conducted for this proposed rule are identical to those conducted for the direct final rule published elsewhere in this issue of the
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certifies that the proposed rule, if adopted, would not have significant economic impact on a substantial number of small entities. The factual basis of this certification is set forth in the following paragraphs.
For manufacturers of dishwashers, the SBA has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. (
DOE conducted a focused inquiry into small business manufacturers of the products covered by this rulemaking. DOE reviewed its Compliance Certification Database,
DOE identified 21 dishwasher OEMs. Of the 21 OEMs identified, DOE determined no companies qualify as a small domestic business.
Based on the initial finding that there are no dishwasher manufacturers who would qualify as small businesses, DOE certifies that the proposed rule, if finalized, would not have a significant economic impact on a substantial number of small entities and has not prepared an IRFA for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).
The following standard appears in the proposed amendatory text of this document and was previously approved
The Secretary of Energy has approved publication of this notice of proposed rulemaking.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, and Small businesses.
This document of the Department of Energy was signed on April 12, 2024, by Jeffrey Marootian, Principal Deputy 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 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
(f)
(i) Standard size dishwashers shall not exceed 307 kwh/year and 5.0 gallons per cycle. Standard size dishwashers have a capacity equal to or greater than eight place settings plus six serving pieces as specified in AHAM DW-1-2020 (incorporated by reference, see § 430.3) using the test load specified in section 2.3 of appendix C1 or section 2.4 of appendix C2 to subpart B of this part, as applicable.
(ii) Compact size dishwashers shall not exceed 222 kwh/year and 3.5 gallons per cycle. Compact size dishwashers have a capacity less than eight place settings plus six serving pieces as specified in AHAM DW-1-2020 (incorporated by reference, see § 430.3) using the test load specified in section 2.3 of appendix C1 or section 2.4 of appendix C2 to subpart B of this part, as applicable.
(2) All dishwashers manufactured on or after [
(3) The provisions of paragraph (f)(2) of this section are separate and severable from one another. Should a court of competent jurisdiction hold any provision(s) of this section to be stayed or invalid, such action shall not affect any other provision of this section.
Federal Election Commission.
Notification of Disposition of Petition for Rulemaking.
The Commission announces its disposition of a Petition for Rulemaking filed on April 29, 2019. The Petition asked the Commission to amend the existing regulation defining “contribution” by adding a new section to include within the definition of contribution certain “valuable information.” The Petition would further require the Commission to initiate investigations and report to a law enforcement agency “automatically” and without a vote whenever the Commission receives notice that any person has received certain “foreign information” or “compromising information.” The Commission is not initiating a rulemaking at this time because it lacks the statutory authority to do so.
April 24, 2024.
Mr. Robert M. Knop, Assistant General Counsel, or Mr. Luis M. Lipchak, Attorney, 1050 First Street NE, Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
The Federal Election Campaign Act, 52 U.S.C. 30101-45 (the “Act”), and Commission regulations define a contribution as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.”
On April 29, 2019, the Commission received a Petition for Rulemaking (“Petition”) from Sai, Fiat Fiendum, Inc., Make Your Laws PAC, Inc., and Make Your Laws Advocacy, Inc. (collectively “Petitioners”). The Petitioners asked the Commission to amend 11 CFR part 100, subpart B, by adding a new § 100.57 to include within the definition of contribution certain “valuable information.”
The Petition proposes to define “valuable information” as information that: (1) is not freely available to the public; (2) is provided to a person regulated by the Act at a cost less than the market rate or by a person not hired by the recipient to generate such information; (3) would cost a non-trivial amount for the recipient to obtain at their own expense; and (4) is information that would likely have the effect of influencing any election for Federal office or that parties or candidate committees have traditionally expended money to obtain.
The proposal sets out two types of “valuable information” that would require special treatment: “foreign information” and “compromising information.”
The Petition would require any person who receives “foreign information” or “compromising information,” or is offered any “foreign information” or “compromising information,” to notify the Commission in writing within three days.
Under the Petitioners' proposal, upon learning of any “foreign information” or “compromising information,” the Commission would be required, automatically and without a vote of the Commission, to: (1) initiate investigations pursuant to 11 CFR 111.3 and 111.10; (2) provide a report to the Federal Bureau of Investigation; and (3) in the case of “compromising information,” provide a report to every reasonably identifiable person against whom such information could be used, or whose private information is disclosed by such information.
The Commission published a Notice of Availability (“NOA”) on July 31, 2019, asking for public comment on the Petition.
One organizational commenter opposed the Petition because the “proposed regulatory definition is redundant” and the information covered by the proposed amendment is “already a `contribution' within the meaning of the Act.”
In deciding whether to initiate a rulemaking in response to a petition, the Commission generally considers five factors: (1) the Commission's statutory authority; (2) policy considerations; (3) the desirability of proceeding on a case-by-case basis; (4) the necessity or desirability of statutory revision; and (5) available agency resources.
First, and most significantly, the Commission lacks the statutory authority to promulgate the rule sought by the Petition. The Act empowers the Commission to “make, amend, or repeal such rules . . . as are necessary to carry out the provisions of [the] Act.”
Additionally, the Commission chooses not to amend the definition of
Accordingly, after reviewing the comments received regarding the Petition and in consideration of the factors discussed, the Commission declines to initiate a rulemaking in response to the Petition.
Copies of the comments and the Petition for Rulemaking are available on the Commission's website,
On behalf of the Commission.
Federal Election Commission.
Notification of disposition of petition for rulemaking.
The Commission announces its disposition of a Petition for Rulemaking filed on May 14, 2015. The Petition asks the Commission to revise existing rules concerning the reporting of contributions to political committees from corporations and other organizations. For the reasons described below, the Commission is not initiating a rulemaking at this time.
April 24, 2024.
Mr. Robert M. Knop, Assistant General Counsel, or Mr. Luis M. Lipchak, Attorney, 1050 First Street NE, Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
The Federal Election Campaign Act, 52 U.S.C. 30101-45 (the “Act”), and Commission regulations require all political committees to abide by certain organizational, record-keeping, and reporting requirements.
On May 14, 2015, the Federal Election Commission received a Petition for Rulemaking from Make Your Laws PAC, Inc. and Make Your Laws Advocacy, Inc. (“Petition”). The Petition asked the Commission to modify its regulations requiring disclosure of contributions from corporations and other organizations to political committees. The Petition requested that the Commission establish a new rule requiring that “any person, other than a natural person, contributing an aggregate of more than $1,000 in any calendar year to any political committee, whether directly or indirectly” (emphasis omitted), must do so from an account subject to certain reporting requirements. Specifically, the Petition asked the Commission to require that these accounts disclose “the original source of all election-related contributions and expenditures, traceable through all intermediary entities to a natural person, regardless of the amounts or entities involved” (emphasis omitted). The Petition also asked the Commission to apply to these accounts the identification requirements of 11 CFR 100.12; the Act's prohibition on foreign national contributions, 52 U.S.C. 30121; allocation rules for administrative expenses; and, in some circumstances, the Act's limitations on contributions to political committees.
The Petition argued that for disclosure requirements to be effective, disclosure must be required for “the
The Commission published a Notice of Availability (“NOA”) on July 29, 2015, asking for public comment on the Petition.
The 10 comments opposed to initiating a rulemaking were received from four individuals and six organizations/professionals. Of the four comments from individuals opposing the Petition, one was from an individual who broadly opposed the proposed rulemaking, two were from individuals who contended that the proposed rules were beyond the Commission's statutory authority, and one was from an individual who believed the proposed rules did not address the issue raised by the Petition of identifying the original source of funds contributed to independent expenditure-only political committees. The primary and common
In deciding whether to initiate a rulemaking in response to a petition, the Commission generally considers five factors: (1) the Commission's statutory authority; (2) policy considerations; (3) the desirability of proceeding on a case-by-case basis; (4) the necessity or desirability of statutory revision; and (5) available agency resources.
First, and most significantly, the Commission lacks the statutory authority to promulgate a rule sought by the Petition. The Act empowers the Commission to “make, amend, or repeal such rules . . . as are necessary to carry out the provisions of [the] Act.”
Second, the vast majority of the commenters, across the political spectrum, opposed the Petition. Given the public opposition to the Petition, and the fact that the Commission lacks statutory authority to implement the Petition's proposal, there is no policy interest in pursuing a rulemaking, nor would it be a good use of Commission resources.
Furthermore, declining to pursue the proposed rulemaking will not require the Commission to proceed on a case-by-case-basis because the information sought by the petition is not required to be disclosed under the Act and Commission regulations.
Lastly, the “necessity or desirability of statutory revision” weighs against pursuing the proposed rulemaking because the changes sought by Petitioners would require a statutory revision given that the Commission lacks the statutory authority to promulgate the rules proposed by Petitioners.
Copies of the comments and the Petition for Rulemaking are available on the Commission's website,
On behalf of the Commission.
National Credit Union Administration (NCUA).
Advance notice of proposed rulemaking.
The NCUA Board (Board) is issuing this advance notice of proposed rulemaking (ANPR) to solicit comments on ways the agency can improve and update its records preservation program regulation and accompanying guidelines in the NCUA regulations. The Board is particularly interested in obtaining stakeholder input on the content of the regulation, which has not been updated in 15 years and may be outdated or at odds with current best practices. The Board is also interested in feedback on the structure of the part which may be confusing as it currently contains a combination of regulatory requirements and guidance.
Comments must be received on or before June 24, 2024.
You may submit written comments by any of the following methods identified by RIN (Please send comments by one method only):
•
•
•
In 2023, the NCUA received feedback that part 749 and its appendices are burdensome and unclear. Based on this feedback and other factors described below, the NCUA has identified the need to review part 749 to see if any changes or improvements are necessary. The Board recognizes the NCUA's regulations in this area, which were last updated many years ago, may be outdated or unclear for some credit unions, which ultimately may have adverse effects on their members. Thus, the Board is seeking advance comment on whether there is a need to update
Part 749 requires all federally insured credit unions (credit unions) to maintain a records preservation program to identify, store, and reconstruct vital records in the event that a credit union's records are destroyed.
Part 749 requires a vital records preservation program to be in writing and contain certain procedures for maintaining duplicate vital records at an offsite vital records center.
At the same time, appendix A—which is included in part 749 as suggested guidelines for record retention—advises that the following additional sets of records should be retained permanently: 1. Official records of the credit union: (a) Charter, bylaws, and amendments; (b) Certificates or licenses to operate under programs of various government agencies, such as a certificate to act as issuing agent for the sale of U.S. savings bonds. 2. Key operational records: (a) Minutes of meetings of the membership, board of directors, credit committee, and supervisory committee; (b) One copy of each financial report, NCUA Form 5300 or 5310, or their equivalent, and the Credit Union Profile report, NCUA Form 4501, or its equivalent as submitted to the NCUA at the end of each quarter; (c) One copy of each supervisory committee comprehensive annual audit report and attachments; (d) Supervisory committee records of account verification; (e) Applications for membership and joint share account agreements; (f) Journal and cash record; (g) General ledger; (h) Copies of the periodic statements of members, or the individual share and loan ledger; (i) Bank reconcilements; and (j) Listing of records destroyed.
Credit unions have expressed confusion regarding the interaction between part 749's requirements and appendix A, and between part 749 and other parts of the NCUA's regulations that have record retention requirements not referenced in part 749. Under part 749, certain supervisory committee documents are not vital records and are subject to periodic destruction; yet under § 715.8 the supervisory committee must retain the records of each verification of members' passbooks and accounts until the completion of the next member account verification.
The Board seeks comment on all aspects of part 749 and the appendices, including how they can be modernized, streamlined, and clarified, and other provisions in the NCUA's regulations that contain record retention requirements. The Board also encourages credit unions and other stakeholders that have developed well-functioning records preservation programs to comment on what works for them and share their best practices in response to this document. In addition, the Board specifically requests feedback addressing the following areas:
Questions:
(1) Does the definition of vital records in 12 CFR 749.1 contain all, and only those, records you would consider to be vital for credit unions?
(2) Are there additional types of documents not listed as a “vital record” that you think should be as they are critical for business operations and to properly serve members?
(3) Are there other industry standards or methodologies outside of part 749 that the agency should consider for preserving vital records, for defining what vital records are, and for determining minimum retention periods?
(4) The primary focus of the records retention guidance in appendix B relates specifically to catastrophic act preparedness. Are there any terms, definitions, or standards that the Board should consider updating in appendix B?
(5) Are there any other changes to appendix B that you would recommend?
Understanding current credit union retention practices would be helpful in determining whether part 749 is properly serving its purpose which is for a credit union to identify, store, and reconstruct vital records in the event that the credit union's records are destroyed.
Questions:
(6) How long, and in what format, does your credit union store its vital records?
(7) Does your credit union maintain and store any vital records in a physical format due to a regulatory requirement or supervisory expectation?
(8) What impediments, including estimated costs, does your credit union encounter with storing vital records?
(9) What records do you deem vital for business operations that a credit union should be required to keep permanently for the purpose of restoring vital member services?
(10) Other than for records that must be kept permanently, are there specific timeframes you would recommend that other vital records be retained?
(11) What are the pros and cons of storing vital records physically, electronically, or in other formats, such as cloud computing storage?
(12) Does your credit union rely on third-party vendors to accurately maintain vital records, and if so, what are some of the challenges that these arrangements present?
(13) How would you suggest the agency create a more effective framework for credit unions to preserve vital records?
(14) What are some challenges for smaller credit unions, defined as credit unions with total assets of $100 million or less, in maintaining vital records, and what has worked?
(15) What additional support, training, or technical assistance could the NCUA provide, if any, to assist credit unions with both understanding and implementing records retention requirements?
The issuance of guidance in this area has been a long-standing agency practice to assist credit unions with their record preservation obligations. As noted in an earlier rulemaking on part 749, “there is a need for guidance in the area of record retention based on the frequency of requests for assistance from credit unions.”
Questions:
(16) What provisions of appendix A or appendix B do not align with the requirements of part 749, or are otherwise outdated or unclear examples of the types of records that should be retained? For records you consider outdated, please explain why.
(17) In terms of the content of any future guidance, what guidance would be helpful to better reflect the types of records that must be retained under part 749?
(18) What guidance would be helpful for catastrophic act or other disaster preparedness?
(19) Is there confusion among stakeholders regarding the enforceability of regulation versus guidance concerning part 749? If so, what should be revised?
Questions:
(20) Are there other provisions in the NCUA's regulations that contain record retention requirements that should be incorporated into part 749?
The Board issues this ANPR pursuant to its authority under the Federal Credit Union Act (FCUA) to prescribe rules and regulations as it deems appropriate for administering the FCUA, including its recordkeeping requirements for Federal credit unions.
By the National Credit Union Administration Board.
Department of State.
Proposed rule.
The Department of State proposes to amend the International Traffic in Arms Regulations (ITAR) by increasing and specifying the fees required for registration with the Directorate of Defense Trade Controls (DDTC).
Send comments on or before June 10, 2024.
Interested parties may submit comments by one of the following methods:
•
•
Comments received after that date may be considered if feasible, but consideration cannot be assured. Those submitting comments should not include any personally identifying information they do not desire to be made public or information for which a claim of confidentiality is asserted, because any such claim will be deemed waived and comments and/or transmittal emails may be made publicly available. Parties who wish to comment anonymously may do so by submitting their comments via
Allison Smith, PM/DDTC Director of Management, Bureau of Political-Military Affairs, U.S. Department of State, telephone 202-647-1282; email:
For the first time in fifteen years, the State Department proposes to revise and increase the registration fees (also referred to as “fees”) charged to those required to register with DDTC. In accordance with section 38(b) of the Arms Export Control Act (AECA) (22 U.S.C. 2778(b)), every person who engages in the business of manufacturing, exporting, temporarily importing, or brokering any defense articles or defense services is required to register with DDTC, the agency charged with administering the relevant sections of the AECA. Section 38(b) of the AECA also requires that every person required to register pay a registration fee. As the ITAR implements section 38 of the AECA, and as its parts 122 and 129 (22
Registration fees required under section 38 of the AECA are, by a separate statute (22 U.S.C. 2717), used to fund a large share of DDTC and the many functions it provides to exporters, importers, brokers, manufacturers, and the general public. The Department briefly outlines some of these functions here so that registrants can have more context for how their fees help DDTC's mission. Services like the DDTC Response Team, Help Desk, commodity jurisdiction determinations, advisory opinions, guidance on brokering, and support for registration all offer assistance for the approximately 14,500 current DDTC registrants and the general public. Moreover, DDTC often conducts outreach, visits, webinars, speaking engagements and other educational services to help people understand the ITAR and its requirements and exemptions. For fiscal year 2022, for example, DDTC experts attended over 60 outreach events and engaged with over 6,000 industry attendees in online webinars.
Issuing licenses or other authorizations under the ITAR is also a core and large part of DDTC's work. In fiscal year 2022, DDTC received approximately 22,500 license applications and issued authorizations that were valued at just over $153.7 billion. Although licensing officials currently are some of the only DDTC officials paid through congressional appropriations, contractor support and other technologies impacting the processing, adjudication. and monitoring of licenses are funded by fees.
DDTC also provides crucial public services in investigating possible ITAR violations to maintain U.S. foreign policy and national security imperatives. Again, using the last fiscal year as an illustrative example, DDTC received over 600 disclosures, either voluntary or directed, and conducted over 300 end-use monitoring checks. Because investigations and compliance actions can be complex and span several months or years, the monetary value that DDTC's Compliance office secured is best viewed as a three-year rolling average for FY 2020-2023, where an average of over $7.6M per year in settlement funds were obtained for alleged ITAR violations, all of which was deposited into the Treasury Department's General Fund and does not go to DDTC. DDTC also assists Department of Justice (DOJ) officials in certain criminal proceedings related to the ITAR, including by providing testimony.
These services provide broad protection to industry and the public alike, ensuring that a uniform set of rules are enforced for all, that one business or exporter does not have an unfair advantage over the other, and that exports, temporary imports, or brokering of defense articles and defense services are consistent with the national security and foreign policy of the United States.
Apart from these ongoing crucial services, DDTC has also recently made significant advancements in processes for registration statements and license applications, and for those members of the public seeking advisory opinions or commodity jurisdiction determinations. One of those is the creation, maintenance, and enhancement of the Defense Export Control and Compliance System (DECCS). Launched in February 2020, DECCS simplifies the submission processes for applicants and allows applicants to track electronic forms submitted to DDTC. DDTC's Information Technology Modernization Team also supports enhanced security and operations features and regularly connects with DECCS users through the DECCS Users Group where industry users can provide direct feedback and suggest enhancements to DECCS. In the area of improved customer service and response, since February 2020, DDTC has used DECCS to implement a fully electronic case-management system, receiving and resolving 81,604 Help Desk tickets and 29,653 Response Team tickets. DECCS users can engage directly with DDTC Help Desk and Response Team customer service experts to resolve their issue. DDTC also implemented a customer satisfaction survey to engage with industry, and DDTC's average survey rating is 4.6 out of 5.
Other enhancements and improvements have also been made specifically to the registration processes. Since 2022, registration processing times have dropped from an average of around 45 days to 30 days. DDTC implemented automated email reminders and status updates for industry to track registration applications. The DECCS application also automatically calculates the registration fee for all registrants, and now registrants can download their renewal fees calculation letter. Additionally, there is enhanced communication between industry and DDTC through DECCS. DDTC has instituted additional improvements, including providing a list of approved licenses and other authorizations and registration guides for DECCS and FAQs.
The Department assessed that after fifteen years of inflation, increasing technological improvements, and improved services (which are described in further detail below), that an increase in the amount of registration fees is necessary for the continued and modernized operations of DDTC. DDTC has engaged in some public engagement on this issue, previewing that it was considering increasing its registration fees in multiple industry engagement events over the last twelve months. No questions or comments on the topic were raised by the public at those events. Separately, different industry representatives have suggested to DDTC that increased fees would be worthwhile to continue receiving improved services.
To compute the new fees proposed here, the Department looked at DDTC's past and projected fee collections projected against future operating costs. It found that although DDTC's operating budget has remained mostly the same over the past few years, apart from inflation, increasing expenses are resulting in operating costs that currently exceed the amount of revenue generated by fees. While DDTC has been able to draw from its collections over the past few years to meet its costs, these funds and the current registration fee amounts will not cover DDTC's increased operational expenses. The need to increase fees to keep up with inflation and increased costs related to enhanced services has therefore become particularly pressing and DDTC would have to cut back on certain services if registration fees are not adjusted in the near future. Similarly, obtaining more funds from other sources may not be feasible. DDTC operates with only limited congressionally appropriated funds, comprising under 17% of its total operating costs, and the congressional sense and presidential national security directive is that DDTC be mostly fee funded.
Since 2008, the time of the last registration fee increase, DDTC has structured registration fees into three basic tiers, based on groupings of registrants that approximate their potential interactions with DDTC. The tier groupings also turn on whether
Tier 1 registrants are currently comprised of persons in the business of manufacturing who either do not export, or who rely on ITAR exemptions for export authorizations. Persons who have submitted a license application or other request for an authorization, but who did not receive any favorable determination qualify for this tier. Additionally, persons engaged in the business of brokering activities also register under Tier 1, regardless of the number of brokering authorizations sought or obtained; however, if these persons have already registered with DDTC and obtained an M-code as a manufacturer, exporter, or temporary importer, and if these persons are identified as a broker within that registration, a separate registration fee for brokering activities is not currently required. In contrast, if brokers register separately (sometimes referred to as “stand-alone brokers”), then they are required to pay the Tier 1 fee.
Tier 2 registrants currently include those who have submitted and received a favorable determination on ten or fewer license applications or requests for authorization during the twelve-month period ending 90 days prior to the expiration of their current registration.
Tier 3 registrants have more frequent interactions with DDTC and thus require more DDTC services. These are registrants who have submitted and received a favorable determination on more than ten license applications or requests for authorization during the twelve-month period ending 90 days prior to the expiration of their current registration.
The Department now proposes to increase the existing fees of Tier 1 and Tier 2 roughly in line with inflation over the last fifteen years. This represents the Department's goal of not asking these registrants to pay an increased amount relative to 2008 costs adjusted to today's dollars. As detailed more below, the Tier 1 annual flat fee would increase from $2,250 to $3,000. This would be a 33% increase over current amounts, but just below the amount of inflation over that same period, which was approximately 40.1%, as calculated by the Department of Labor's Consumer Price Index (CPI). Using the CPI calculator on the Department of Labor's Bureau of Labor Statistics website (
Similarly, the Tier 2 annual flat fee would increase from $2,750 to $4,000. This would be about a 45% increase over current amounts, just over the roughly 40% inflation since the amount was last adjusted. The CPI calculator shows that $2,750 in August 2008 would be about $3,854.15 today. Tier 2 registrants are proposed to have a slightly higher percentage increase than Tier 1 registrants because Tier 2 registrants receive additional services and benefits, and because they actually submit license applications or requests for authorization that require review. Whereas Tier 1 registrants do not interact as often with DDTC, and generally require less direct services, and may not engage in as much exporting or temporarily importing of defense articles or defense services.
The conditions for Tier 2, however, are proposed to be adjusted. Whereas currently, this tier is for registrants who have submitted and received a favorable determination on ten or fewer license applications or requests for authorization, the Department now proposes that the number of favorable determinations decreases from ten to five. This change was based in part on an analysis of DDTC data over the last five years, which found that the average Tier 2 registrant received three favorable determinations on license applications or requests for authorization. Consequently, the majority of registrants previously in Tier 2 would remain in this tier under the newly proposed conditions. However, those registrants who have received more than five favorable determinations in the look-back period would become Tier 3 registrants under this proposal.
Tier 3 registrants, in contrast to the other tiers, would see an increase beyond the adjusted amount of inflation. Both the calculated fee and the baseline for that fee would increase. The baseline would rise from $2,750 to $4,000, and the additional fee multiplier for favorable determinations, proposed to now be over five instead of over ten, would rise from $250 to $1,100 for each. Thus, as an example, if an exporter has applied for and obtained seven licenses or other authorizations within the look-back period, this exporter would pay the registration fee prescribed in Tier 3, which would be a baseline of $4,000, plus $2,200 (because there were two favorable determinations obtained above the baseline of five), for a total fee of $6,200.
The Department has concluded that Tier 3 registrants have benefited the most from DDTC's improvements, specifically DECCS and customer service improvements, they are best positioned to contribute from their export-derived revenue to continue and improve DDTC's services.
Because these improvements would primarily benefit Tier 3 registrants, it is those registrants that will be asked to contribute more.
DDTC currently has discounts available for exporters and temporary importers of low-value items who fall under Tier 3. This low-value discount formula is currently available on the DDTC website. Under this proposed change, this discount would remain as currently structured and would be referenced in a new paragraph (b) in § 122.3, directing the public to the DDTC website for the conditions and formula. Similarly, registrants who fall under Tier 2 and Tier 3, but who are wholly exempt from income taxation pursuant to 26 U.S.C. 501(c)(3) may be eligible for a discount to the Tier 1 fee. The DDTC website has and will continue to have information relevant to this non-profit discount as well. The new paragraph (b) would include mention of the non-profit discount alongside the Tier 3 low-value discount and direct the public to the DDTC website for more information on both. Once on the DDTC website at
Accordingly, the Department proposes amendments to the three registrant tiers as follows:
1.
2.
3.
Registration fees for persons who engage in brokering activities would remain tied to Tier 1, regardless of authorizations submitted or determinations received. If a person has already registered with DDTC as a manufacturer or exporter, and if that person is listed and identified as a broker within their manufacturer or exporter registration, then no additional fee is currently required to also register as a broker. But if a broker registers separately (
DDTC has also maintained a discount for registrants who would otherwise fall in Tiers 2 or 3, but who are wholly exempt from income taxation pursuant to 26 U.S.C. 501(c)(3). The discount is proposed to still be available; however, guidance on how to apply for the discount will remain on the DDTC website. Currently, and with no proposed change, the qualifying registrant must attach proof of such status (
DDTC will be prepared to assist registrants with the proposed change to registration fees. If adopted in a final rule, the DECCS application will be updated to auto-calculate the revised fees once they go into effect. The DDTC public website will also have up-to-date information, and the Help Desk and the Response Team will be available to field questions. As is the case now, approximately 90 days prior to the expiration of a registration, DECCS will calculate the registration's renewal fee and post it to the DECCS Registration Dashboard. DDTC will also continue to send registration renewal notification emails 90 days and 30 days prior to a registration expiration date. And registrants will still be able to view a “Renewal Fee Details” button on their Registration Dashboard, which will display the total number of favorable determinations in the look-back period used to calculate the registrant's upcoming tier and total registration fee. Finally, as always, if a registrant feels the amount calculated is incorrect, they may submit a written request to DDTC explaining the basis for their request. Other frequently asked questions (FAQs) about registration fees and the registration process are available on the DDTC website, including by searching for “registration fee” and will be updated after any changes to the registration fees occur.
Prior to October 2013, registration fees were outlined within the regulations themselves. Effective October 25, 2013 (78 FR 52680), the amounts of the registration fees and the tier groupings were removed from the ITAR and placed on the DDTC website. To ensure that the registration fees amounts are easily available, the Department proposes to return them to the text of the regulations in § 122.3, entitled “Registration fees.” Similarly, with respect to registration fees for stand-alone brokering registrations (
In addition to the registration-fee-specific proposals discussed above, the Department takes this opportunity to propose additional revisions in keeping with the Department's ITAR reorganization efforts initiated by 87 FR 16396, Mar. 23, 2022. That rule restructured part 120 of the ITAR to better organize the definitions previously found in that part and other locations throughout the ITAR and consolidated provisions that provide background information or otherwise apply throughout the regulations. In keeping with those aims, the Department further proposes to remove those parts of § 122.3 that are not specific to fees, but are more generally related to registration (
In § 122.1:
In § 122.2:
Because the Department proposes to remove all non-fee related text from § 122.3 by revising and relocating the text of current paragraphs § 122.3(b) and (c), it proposes to limit registration fee related text to paragraph (a) of § 122.3 and to revise paragraph (b) to direct readers to the DDTC website for certain discounts and for further guidance on the process of registration.
The Department has historically determined that rulemakings implementing the Arms Export Control Act or amending the ITAR involve a military or foreign affairs function of the United States under 5 U.S.C. 553(a). However, due to Department's interest in seeking public comment on this rule, the Department is soliciting comments during a 45-day comment period, to which it will respond in a final rule, should the Department choose to finalize all or part of this proposal.
Since this rule is exempt from the notice-and-comment rulemaking provisions of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.
This rulemaking does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.
Executive Orders 12866 (as amended by Executive Order 14094) and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated as a significant regulatory action by the Office of Information and Regulatory Affairs under Executive Order 12866, as amended.
In FY 2023, roughly 14,500 registrants contributed registration fees to DDTC's FY23 collections amounting to $33.8 million. Based on projections made from registrant data from recent years, the new registration structure, which presumes roughly the same number of registrants, is expected to bring in an overall total of roughly $67.2 million per year, which would be an overall increase of $33.4 million per year. Although this is a 99% projected increase in collections overall from current registration fees, the largest increase, on a per-registrant basis, would fall on Tier 3 registrants. On average, Tier 3 registrants would see their individual fee amounts increase by over 250%. The Department believes this increase is justified for the reasons discussed previously in the preamble, but specifically due to the fact that more than fifteen years have passed since DDTC last adjusted fees, and Tier 3 registrants derive greater benefits from engaging in regulated activities while also consuming a disproportionate amount of DDTC support services. Because we project registrants in Tier 3 to account for over 22,000 of the roughly 26,000 applications expected to be favorably determined by DDTC, the Department believes that this would be a more equitable distribution of financial costs. Tier 1 and Tier 2 registrants, on the other hand, will see a 33% and 45% increase, respectively, not far from the near 40% inflation rate in the over fifteen years since the registration fees were last adjusted. For FY 2025, DDTC's projected operational budget will be nearly $60 million, and that amount is expected to increase based on inflation and other increases in expenses. Setting a registration fee structure that aims to offer a stable price for a number of years is also expected to be a benefit to registrants, so that they may better know what fees to expect for future years. Additionally, the proposed registration fee structure benefits DDTC by meeting its budget demands in a way that also reasonably accounts for unknown variables such as changes in the number of registrants, or potential exemptions that would not require specific license applications or approvals and would therefore decrease the expected collections from Tiers 2 and 3. It also allows for DDTC to address unexpected contingencies as it did in 2020, when it temporarily lowered registration fee amounts as a relief measure during the pandemic. DDTC welcomes public comment on the impact of this proposed rule.
The Department of State has reviewed this rulemaking in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.
This rulemaking does not impose or revise any information collections subject to 44 U.S.C. Chapter 35.
Arms and munitions, Exports, Reporting and recordkeeping requirements.
Arms and munitions, Brokers, Exports, Technical assistance.
For the reasons discussed in the preamble and under the authority of 22 U.S.C. 2778, the Department of State proposes to revise title 22, chapter I, subchapter M, parts 122 and 129 to read as follows:
Sections 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.
(a)
(a)
(1) Be signed by a U.S. person senior officer (
(2) Include documentation that demonstrates the registrant is incorporated or otherwise authorized to do business in the United States.
(b)
(1) Whether the intended registrant or its parent, subsidiary, or other affiliate listed in the Statement of Registration, or any of its chief executive officers, presidents, vice presidents, secretaries, partners, members, other senior officers or officials (
(i) Has ever been indicted or otherwise charged (
(ii) Is ineligible to contract with, or to receive a license or other approval to import defense articles or defense services from, or to receive an export license or other approval from, any agency of the U.S. Government; and
(2) Whether the intended registrant is foreign owned or foreign controlled (see § 120.65 of this subchapter). If the intended registrant is foreign owned or foreign controlled, the certification shall include an explanation of such ownership or control, including the identities of the foreign person or persons who ultimately own or control the registrant. This requirement applies to a registrant who is a U.S. person and is owned or controlled by a foreign person. It also applies to a registrant who is a foreign person and is owned or controlled by a foreign person from the same country or a foreign person from another country.
(c)
(d)
(e)
(f)
(a)
(1)
(2)
(3)
(b)
Section 38, Pub. L. 104-164, 110 Stat. 1437, (22 U.S.C. 2778); E.O. 13637, 78 FR 16129.
The Under Secretary, Arms Control and International Security, Bonnie D. Jenkins, having reviewed and approved this document, has delegated the authority to electronically sign this document to Jessica Lewis, Assistant Secretary, Bureau of Political-Military Affairs, for purposes of publication in the
Federal Communications Commission.
Proposed rule.
The Video Division, Media Bureau (Bureau), has before it a petition for rulemaking filed January 19, 2024 and amended on January 30, 2024, by Multimedia Holdings Corporation (Petitioner). The Petitioner requests the substitution of channel 33 for channel 13 at Jacksonville, Florida (Jacksonville), in the Table of TV Allotments.
Comments must be filed on or before May 24, 2024 and reply comments on or before June 10, 2024.
Federal Communications Commission, Office of the Secretary, 45 L Street NE, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for the Petitioner as follows: Michael Beder, Esq., Associate General Counsel, TEGNA Inc., 8350 Broad Street, Suite 2000, Tysons, Virginia 22102.
Joyce Bernstein, Media Bureau, at (202) 418-1647; or Joyce Bernstein, Media Bureau, at
In support of its channel substitution request, the Petitioner states that its proposed channel substitution would serve the public interest by resolving persistent reception complaints it has received from viewers, and substantially improve the Jacksonville community's access to the Station's local news, emergency, NBC network, and other programming. The Petitioner states that the Commission has recognized that VHF channels have certain characteristics that pose challenges for their use in providing digital television service, including propagation characteristics that allow undesired signals and noise to be receivable at relatively far distances.
Additionally, the Petitioner notes that the Commission has observed “large variability in the performance (especially intrinsic gain) of indoor antennas available to consumers, with most antennas receiving fairly well at UHF and the substantial majority not so well to very poor at high-VHF.” Petitioner further states that the Commission has recognized that although VHF reception issues are not universal, environmental noise blockages affecting VHF signal strength and reception exist and vary widely from service area to service area.
An engineering statement provided by the Petitioner confirms that the proposed channel *33 contour would provide full principal community coverage to Jacksonville and would not cause impermissible interference to any station. Although an analysis provided by the Petitioner using the Commission's
We believe that the Petitioner's channel substitution proposal for WTLV warrants consideration. Channel 33 can be substituted for channel 13 at Jacksonville as proposed, in compliance with the principal community coverage requirements of § 73.618(a) of the Commission's Rules, at coordinates 30-16′-25″ N and 81-33′-12″ W. In addition, we find that this channel change meets the technical requirements set forth in § 73.622(a) of the rules. Although the proposal is predicted to result in a loss of service to 274,303 persons, all of those persons would continue to receive over-the-air NBC network service either from other existing stations or while being located outside of WTLV's NLSC.
This is a synopsis of the Commission's
This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
Members of the public should note that all
Television.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
(j) * * *
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Comments are requested regarding: (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding these information collections are best assured of having their full effect if received by May 24, 2024. Written comments and recommendations for the proposed information collection should be submitted, identified by docket number 0535-0264, within 30 days of the publication of this notice by any of the following methods:
•
•
•
•
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.
General authority for these data collection activities is granted under U.S.C. Title 7, Section 2204. This survey will be conducted on a full cost recovery basis with the Hawaii Department of Agriculture.
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Comments are requested regarding: (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding these information collections are best assured of having their full effect if received by May 24, 2024. 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
The National Agricultural Statistics Service (NASS) is requesting a substantive change to the Vegetable Surveys information collection request (OMB No. 0535-0037) for program changes. Every five years NASS conducts a program review following the completion of the Census of Agriculture. The program changes balance resources across all of the programs included in the annual estimating program, which represents over 400 individual reports across multiple Information Collection Requests (ICRs). This substantive change is to accommodate the vegetable program changes that affect this ICR. The methodology, publication dates, burden and data collection plan do not change as result of these program changes.
The primary functions of the National Agricultural Statistics Services' (NASS) are to prepare and issue State and national estimates of crop and livestock production, disposition, and prices and to collect information on related environmental and economic factors. The Field Crops Production Program consists of probability field crops surveys and supplemental panel surveys. These surveys are extremely valuable for commodities where acreage and yield are published at the county level. NASS will use surveys to collect information through a combination of the internet, mail, telephone, and personnel interviews. The general authority for these data collection activities is granted under U.S. Code title 7, section 2204.
The National Agricultural Statistics Service (NASS) is requesting a substantive change to the Field Crops Production information collection request (OMB No. 0535-0088) for program changes. Every five years NASS conducts a program review following the completion of the Census of Agriculture. The program changes in this change request balance resources across all of the programs included in the annual estimating program ensuring NASS' annual statistical program aligns with its appropriation. This substantive change is to accommodate the field crop program changes that affect this ICR. The changes in this request decreases burden hours.
The National Agricultural Statistics Service (NASS) is requesting a substantive change to the Agricultural Surveys Program information collection request (OMB No. 0535-0213) for program changes. Every five years NASS conducts a program review following the completion of the Census of Agriculture. The program changes in this change request balance resources across all of the programs included in the annual estimating program ensuring NASS' annual statistical program aligns with its appropriation. This substantive change is to accommodate the livestock program changes that affect this ICR. The changes in this request decreases burden hours.
Forest Service, Agriculture (USDA).
Notice of meeting.
The Helena-Lewis and Clark Resource Advisory Committee (RAC) will hold a public meeting according to the details shown below. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act, as well as make recommendations on recreation fee proposals for sites on the Helena-Lewis and Clark National Forest within Broadwater, Teton, Lewis and Clark, Fergus, Judith Basin, Pondera, Meagher, and Wheatland counties, consistent with the Federal Lands Recreation Enhancement Act.
An in-person and virtual meeting will be held on May 9, 2024, 2:00 p.m. to 5:00 p.m., Mountain Daylight Time (MDT).
All committee meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
This meeting will be held in-person at Camp Rotary, located at 19 Camp Rotary Rd., Neihart, Montana 59465. The public may also join virtually via video conference using the Microsoft Teams meeting link:
Molly Ryan, Designated Federal Officer, by phone at 406-949-9766 or by email at
The purpose of the meeting is to:
1. Elect a chairperson;
2. Create a local charter;
3. Hear from Title II project proponents and discuss Title II project proposals;
4. Make funding recommendations on Title II projects;
5. Approve meeting minutes;
6. Schedule the next meeting.
The agenda will include time for individuals to make oral statements of three minutes or less. To be scheduled on the agenda, individuals wishing to make an oral statement should make a request in writing at least three days prior to the meeting date. Written comments may be submitted to the Forest Service up to 14 days after the meeting date listed under
Please contact the person listed under
USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family and parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the committee. To ensure that the recommendations of the committee have taken into account the needs of the diverse groups served by USDA, membership shall include to the extent possible, individuals with demonstrated ability to represent minorities, women, and person with disabilities. USDA is an equal opportunity provider, employer, and lender.
Natural Resources Conservation Service, USDA.
Notice of intent (NOI) to prepare an environmental impact statement (EIS).
The Natural Resources Conservation Service (NRCS) New York State Office announces its intent to prepare an environmental impact statement for the GreenThumb Gardens Water Supply Project watershed plan, under the jurisdiction of New York City (NYC) Parks and Recreation Department GreenThumb Network, located within the Five Borough Watershed in New York City, New York. The proposed watershed plan will examine alternative solutions to address insufficient agricultural water supply to support the food production needs of the identified community gardens. The GreenThumb Community Gardens includes 254 food producing community gardens within the jurisdiction of the NYC Parks and Recreation Department. NRCS is requesting comments to identify significant issues, potential alternatives, information, and analyses relevant to the proposed action from all interested individuals, Federal and State agencies, and Tribes.
We will consider comments that we receive by May 24, 2024. We will consider comments received after close of the comment period to the extent possible.
We invite you to submit comments in response to this notice. You may submit your comments through one of the methods below:
•
•
All comments received will be posted without change and made publicly available on
Dennis DeWeese; telephone: (315) 477-6527; email:
The primary purpose for the watershed plan is to supply dependable and accessible water to the GreenThumb Community Gardens that produce food.
Watershed planning is authorized under the Watershed Protection and Flood Prevention Act of 1954 (Pub. L. 83-566), as amended, and the Flood Control Act of 1944 (Pub. L. 78-534). The sponsoring local organization is the NYC Parks and Recreation Department GreenThumb Network, which supports the creation and maintenance of volunteer led community gardens within the NYC Parks and Recreation Department jurisdiction.
The GreenThumb Gardens Water Supply Project is essential for the establishment of secure and reliable on-site agricultural water supply to address deficiencies in the existing water delivery systems. Improving on-site water infrastructure within community gardens would strengthen the local food system, improve efficiency, contribute to the conservation and enhancement of natural resources and lower barriers to water access. Additionally, on-site agricultural water supply for community gardens would improve public health and safety through the enrichment of food quality and quantity, increased community engagement opportunities, and the reduction of fire hydrant related safety and efficiency concerns. This action would implement water conservation activities on existing agricultural lands and would address solutions to insufficient water supply and quality for the community gardens. The primary beneficiaries of the GreenThumb Gardens Water Supply Project are urban food producing community gardens under the NYC Parks and Recreation Department GreenThumb jurisdiction that do not have accessible and safe permanent access to a dependable water supply.
Estimated Federal funds required for the construction of the proposed action may exceed $25 million and the proposed action will, therefore, require congressional approval per the 2018 Agriculture Appropriations Act amended funding threshold. In accordance with the regulation in 7 CFR 650.7(a)(2), an EIS is required for projects requiring congressional approval.
The EIS objective is to formulate and evaluate alternatives for the agricultural water management in the NYC Parks and Recreation Department GreenThumb community gardens Project area. The EIS is expected to evaluate two alternatives: one action alternative and one no action alternative. The alternatives that may be considered for detailed analysis include:
•
•
The EIS will be prepared as required by section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA); the Council on Environmental Quality Regulations (40 CFR parts 1500-1508); and NRCS regulations that implement NEPA in 7 CFR part 650.
Resource concerns for scoping were identified and categorized as relevant or not relevant to the proposed action. The NYC Parks and Recreation Department GreenThumb Network and NRCS are evaluating the GreenThumb Gardens Water Supply Project's existing conditions along with relevant resource concerns for each proposed solution. Environmental resources in the GreenThumb Gardens Water Supply Project area consist of both natural and man-made resources.
Resource concerns include the following: insufficient agricultural water supply, plant productivity and health, and human economic considerations of labor and risk. A special environmental concern is environmental justice.
An NRCS evaluation of this federally assisted action indicates the proposed alternatives may have local effects on the environment. Potential negative effects include short-term disruption in pedestrian and traffic movement at individual community gardens during
The following permit is anticipated to be required:
•
A Draft EIS (DEIS) will be prepared and circulated for review and comment by agencies, Tribes, consulting parties, and the public for 45 days as required by the regulations in 40 CFR 1503.1, 1502.20, 1506.11, and 1502.17, and 7 CFR 650.13. The DEIS is anticipated to be published in the
NRCS will decide whether to implement one of the action alternatives as evaluated in the EIS. A Record of Decision will be completed after the required 30-day waiting period and will be publicly available. The responsible Federal official and decision maker for NRCS is the New York NRCS State Conservationist.
The date, time, and location for a public scoping meeting will be announced on the GreenThumb Gardens Water Supply Project website. Comments received, including the names and addresses of those who comment, will be part of the public record. Scoping meeting presentation materials will be available for review and comment for 30 days after the meeting.
Federal, State, Tribal, local agencies and representatives, and the public are invited to take part in the watershed plan scoping period. The NYC Parks and Recreation Department GreenThumb Network and NRCS will organize a public scoping meeting to provide an opportunity to review and evaluate the GreenThumb Gardens Water Supply Project alternatives, express concern or support, and gain further information regarding the GreenThumb Gardens Water Supply Project. To determine the most viable alternatives for the EIS, the NYC Parks and Recreation Department GreenThumb Network will use input obtained during public scoping discussions to focus on relevant resource concerns and issues and eliminate those that are not relevant from further detailed study.
NRCS will coordinate the scoping process to correspond with Section 106 of the National Historic Preservation Act (NHPA) (54 U.S.C. 306108) as allowed in 36 CFR 800.2(d)(3) and 800.8.
NRCS invites agencies, Tribes, consulting parties, and individuals that have special expertise, legal jurisdiction, or interest in the GreenThumb Gardens Water Supply Project to provide written comments concerning the scope of the analysis and identification of potential alternatives, information, and analyses relevant to the Proposed Action.
The information about historic and cultural resources within the area potentially affected by the proposed GreenThumb Gardens Water Supply Project will assist NRCS in identifying and evaluating impacts to such resources in the context of both NEPA and NHPA.
NRCS will consult with Native American tribes on a government-to-government basis in accordance with the regulations in 36 CFR 800.2 and 800.3, Executive Order 13175, and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources and historic properties, will be given due consideration.
This document is published as specified by the NEPA regulations regarding publication of an NOI to issue an EIS (40 CFR 1501.9(d)). Watershed planning is authorized under the Watershed Protection and Flood Prevention Act of 1954, as amended and the Flood Control Act of 1944.
The title and number of the Federal Assistance Program as found in the Assistance Listing
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive order are to foster an intergovernmental partnership and a strengthened federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance and direct Federal development. The GreenThumb Gardens Water Supply Project is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
In accordance with Federal civil rights law and USDA civil rights regulations and policies, USDA, its agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family or parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Individuals who require alternative means of communication for program information (for example, braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA TARGET Center at (202) 720-2600 (voice and telephone) or dial 711 for Telecommunications Relay Service (both voice and text telephone users can initiate this call from any phone). Additionally, program information may be made available in languages other than English.
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at:
USDA is an equal opportunity provider, employer, and lender.
Office of Partnerships and Public Engagement (OPPE).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces OPPE's intention to request a new, generic information collection.
Comments on this notice must be received within 60 days of publication in the
OPPE invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:
•
•
For access to background documents or comments received, go to the Office of Partnerships and Public Engagement at 1400 Independence Ave. SW, Washington, DC 20250-3700, Mail Stop 0601 between 8:00 a.m. and 4:30 p.m., Monday through Friday.
Kim Okahara, Performance Improvement Officer, at
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 3506(C)(2)(A)), this notice announces the intention of The Office of Partnerships and Public Engagement to request comments concerning the USDA Generic Clearance for Fellowships, Scholarships, Internships, and Training information collection request.
Comments are invited 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 the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received will be available for public inspection during regular business hours at the same address.
All responses to this notice will be summarized and included in the request for OMB approval. All comments, including any personal information contained therein, will become a matter of public record.
The respondents of this information collection will incur no costs other than the investment of their time.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the World Trade Center Denver, grantee of FTZ 123, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the FTZ Board (15 CFR 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new subzones or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the FTZ Board's standard 2,000-acre activation limit for a zone. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on April 18, 2024.
FTZ 123 was approved by the FTZ Board on August 16, 1985 (Board Order 311, 50 FR 34729, August 27, 1985) and expanded on April 10, 2007 (Board Order 1509, 72 FR 19879-19880, April 20, 2007) and on October 23, 2009 (Board Order 1649, 74 FR 57629, November 9, 2009).
The current zone includes the following sites:
The grantee's proposed service area under the ASF would be Adams, Arapahoe, Broomfield, Denver, Douglas, Elbert, and Morgan Counties and a portion of Larimer and Weld Counties, Colorado, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The application indicates that the proposed service area is within and adjacent to the Denver Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone to include Sites 3 and 4 as “magnet” sites and Site 7 as a “usage-driven” site. The application would have no impact on FTZ 123's previously authorized subzones.
In accordance with the FTZ Board's regulations, Qahira El-Amin of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the FTZ Board.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary and sent to:
A copy of the application will be available for public inspection in the “Online FTZ Information Section” section of the FTZ Board's website, which is accessible via
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable April 17, 2024.
Bob Palmer or Laurel Smalley (Brazil), Lana Nigro (Kazakhstan), John McGowan or Suresh Maniam (Malaysia), and Mark Hoadley (the Russian Federation (Russia)), AD/CVD Operations, Offices VIII, VII, and I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-9068, (202) 482-3456, (202) 482-1779, (202) 482-0461, (202) 482-1603, and (202) 482-3148, respectively.
On March 28, 2024, the U.S. Department of Commerce (Commerce) received countervailing duty (CVD) petitions concerning imports of ferrosilicon from Brazil, Kazakhstan, Malaysia, and Russia filed in proper form on behalf of CC Metals and Alloys, LLC and Ferroglobe USA, Inc. (the petitioners).
Between April 1 and 2, 2024, Commerce requested supplemental information pertaining to certain aspects of the Petitions.
In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), the petitioners allege that the Government of Brazil (GOB), the Government of Kazakhstan (GOK), the Government of Malaysia (GOM), and the Government of Russia (GOR) (collectively, Governments) are providing countervailable subsidies, within the meaning of sections 701 and 771(5) of the Act, to producers of ferrosilicon from Brazil, Kazakhstan, Malaysia, and Russia, and that such imports are materially injuring, or threatening material injury to, the domestic industry producing ferrosilicon in the United States. Consistent with section 702(b)(1) of the Act and 19 CFR 351.202(b), for those alleged programs on which we are initiating CVD investigations, the Petitions were accompanied by information reasonably available to the petitioners supporting their allegations.
Commerce finds that the petitioners filed the Petitions on behalf of the domestic industry because the petitioners are interested parties as defined in section 771(9)(C) of the Act. Commerce also finds that the petitioners demonstrated sufficient industry support with respect to the initiation of the requested CVD investigations.
Because the Petitions were filed on March 28, 2024, the periods of investigation (POI) for Brazil, Kazakhstan, Malaysia, and Russia are January 1, 2023, through December 31, 2023.
The merchandise covered by these investigations is ferrosilicon from Brazil, Kazakhstan, Malaysia, and Russia. For a full description of the scope of these investigations,
As discussed in the
Commerce requests that any factual information that parties consider relevant to the scope of the investigations be submitted during that time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party must contact Commerce and request permission to submit the additional information. All scope comments must be filed simultaneously on the records of the concurrent AD and CVD investigations.
All submissions to Commerce must be filed electronically via Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS), unless an exception applies.
Pursuant to sections 702(b)(4)(A)(i) and (ii) of the Act, Commerce notified the Governments of the receipt of the Petitions and provided an opportunity for consultations with respect to the Petitions.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) at least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, Commerce shall: (i) poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs Commerce to look to producers and workers who produce the domestic like product. The U.S. International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both Commerce and the ITC apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations.
In determining whether the petitioners have standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in the
Our review of the data provided in the Petitions, the General Issues Supplement, and other information readily available to Commerce indicates that the petitioners have established industry support for the Petitions.
Because Brazil, Kazakhstan, Malaysia, and Russia are “Subsidies Agreement Countries” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to these investigations. Accordingly, the ITC must determine whether imports of the subject merchandise from Brazil, Kazakhstan, Malaysia, and/or Russia materially injure, or threaten material injury to, a U.S. industry.
The petitioners allege that imports of the subject merchandise are benefiting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. In addition, the petitioners allege that subject imports from Brazil, Kazakhstan, Malaysia, and Russia exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioners contend that the industry's injured condition is illustrated by the significant and increasing volume of subject imports; underselling and price depression and/or suppression; low capacity utilization rates; lost sales and revenues; and adverse effect on financial performance.
Based upon the examination of the Petitions and supplemental responses, we find that they meet the requirements of section 702 of the Act. Therefore, we are initiating CVD investigations to determine whether imports of ferrosilicon from Brazil, Kazakhstan, Malaysia, and Russia benefit from countervailable subsidies conferred by the GOB, GOK, GOM, and the GOR, respectively. In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 65 days after the date of these initiations.
Based on our review of the Petitions, we find that there is sufficient information to initiate a CVD investigation on 19 of the programs alleged by the petitioners. For a full discussion of the basis for our decision to initiate on each program,
Based on our review of the Petitions, we find that there is sufficient information to initiate a CVD investigation on all 21 of the programs alleged by the petitioners. For a full discussion of the basis for our decision to initiate on each program,
Based on our review of the Petitions, we find that there is sufficient information to initiate a CVD investigation on all 13 programs alleged by the petitioners. For a full discussion of the basis for our decision to initiate on each program,
Based on our review of the Petitions, we find that there is sufficient information to initiate a CVD investigation on all 23 of the programs alleged by the petitioners. For a full discussion of the basis for our decision to initiate on each program,
In the Petitions, the petitioners identify 11 companies in Brazil, five companies in Kazakhstan, two companies in Malaysia, and 11 companies in Russia as producers and/or exporters of ferrosilicon.
On April 11, 2024, Commerce released the CBP data for imports of ferrosilicon from Russia and, on April 12, 2024, from Brazil, Kazakhstan, and Malaysia under Administrative Protective Order (APO) to all parties with access to information protected by APO and indicated that interested parties wishing to comment regarding the CBP data and/or respondent selection must do so within three business days of the publication date of the notice of initiation of these investigations.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on Commerce's website at
In accordance with section 702(b)(4)(A) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petitions has been provided to the GOB, GOK, GOM, and GOR via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).
Commerce will notify the ITC of its initiation, as required by section 702(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of ferrosilicon from Brazil, Kazakhstan, Malaysia, and/or Russia are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors of production under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). Section 351.301(b) of Commerce's regulations requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by Commerce. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301, or as otherwise specified by Commerce.
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. Parties wishing to participate in these investigations should ensure that they meet the requirements of 19 CFR 351.103(d) (
This notice is issued and published pursuant to sections 702 and 777(i) of the Act, and 19 CFR 351.203(c).
The scope of these investigations covers all forms and sizes of ferrosilicon, regardless of grade, including ferrosilicon briquettes. Ferrosilicon is a ferroalloy containing by weight four percent or more iron, more than eight percent but not more than 96 percent silicon, three percent or less phosphorus, 30 percent or less manganese, less than three percent magnesium, and 10 percent or less any other element. The merchandise covered also includes product described as slag, if the product meets these specifications.
Subject merchandise includes material matching the above description that has been finished, packaged, or otherwise processed in a third country, including by performing any grinding or any other finishing, packaging, or processing that would not otherwise remove the merchandise from the scope of the investigations if performed in the country of manufacture of the ferrosilicon.
Ferrosilicon is currently classifiable under subheadings 7202.21.1000, 7202.21.5000, 7202.21.7500, 7202.21.9000, 7202.29.0010, and 7202.29.0050 of the Harmonized Tariff Schedule of the United States (HTSUS). While the HTSUS numbers are provided for convenience and customs purposes, the written description of the scope remains dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable April 17, 2024.
Jaron Moore (Brazil) at (202) 482-3640; Samantha Kinney (Kazakhstan) at (202) 482-2285; Peter Farrell (Malaysia) at (202) 482-2104; and Jacob Saude (the Russian Federation (Russia)) at (202) 482-0981, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On March 28, 2024, the U.S. Department of Commerce (Commerce) received antidumping duty (AD) petitions concerning imports of ferrosilicon from Brazil, Kazakhstan, Malaysia, and Russia filed in proper form on behalf of CC Metals and Alloys, LLC and Ferroglobe USA, Inc. (the petitioners).
On April 1, 2024, Commerce requested supplemental information pertaining to certain aspects of the Petitions in supplemental questionnaires.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioners allege that imports of ferrosilicon from Brazil, Kazakhstan, Malaysia, and Russia are being, or are likely to be, sold in the United States at less than fair value (LTFV) within the meaning of section 731 of the Act, and that imports of such products are materially injuring, or threatening material injury to, the ferrosilicon industry in the United States. Consistent with section 732(b)(1) of the Act, the Petitions were accompanied by information reasonably available to the petitioners supporting their allegations.
Commerce finds that the petitioners filed the Petitions on behalf of the domestic industry, because the petitioners are interested parties, as defined in section 771(9)(C) of the Act. Commerce also finds that the petitioners demonstrated sufficient industry support for the initiation of the requested LTFV investigations.
Because the Petitions were filed on March 28, 2024, pursuant to 19 CFR 351.204(b)(1), the period of investigation (POI) for the Brazil, Kazakhstan, and Malaysia LTFV investigations is January 1, 2023, through December 31, 2023. Because Russia is a non-market economy (NME) country, pursuant to 19 CFR 351.204(b)(1), the POI for the Russia LTFV investigation is July 1, 2023, through December 31, 2023.
The product covered by these investigations is ferrosilicon from Brazil, Kazakhstan, Malaysia, and Russia. For a full description of the scope of these investigations,
As discussed in the
Commerce requests that any factual information that parties consider relevant to the scope of these investigations be submitted during that period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party
All submissions to Commerce must be filed electronically via Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS), unless an exception applies.
Commerce is providing interested parties an opportunity to comment on the appropriate physical characteristics of ferrosilicon to be reported in response to Commerce's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant factors of production (FOP) or cost of production (COP) accurately, as well as to develop appropriate product comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) general product characteristics; and (2) product comparison criteria. We note that it is not always appropriate to use all product characteristics as product comparison criteria. We base product comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe ferrosilicon, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, Commerce attempts to list the most important physical characteristics first and the least important characteristics last.
In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all product characteristics comments must be filed by 5:00 p.m. ET on May 7, 2024, which is 20 calendar days from the signature date of this notice.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) at least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, Commerce shall: (i) poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs Commerce to look to producers and workers who produce the domestic like product. The U.S. International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both Commerce and the ITC apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic-like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations.
In determining whether the petitioners have standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in the appendix to this notice. To establish industry support, the petitioners provided their own production of the domestic like product in 2023.
Our review of the data provided in the Petitions, the General Issues Supplement, and other information readily available to Commerce indicates that the petitioners have established industry support for the Petitions.
The petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at LTFV. In addition, the petitioners allege that subject imports from Brazil, Kazakhstan, Malaysia, and Russia exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioners contend that the industry's injured condition is illustrated by the significant and increasing volume of subject imports; underselling and price depression and/or suppression; low capacity utilization rates; lost sales and revenues; and adverse impact on financial performance.
The following is a description of the allegations of sales at LTFV upon which Commerce based its decision to initiate LTFV investigations of imports of ferrosilicon from Brazil, Kazakhstan, Malaysia, and Russia. The sources of data for the deductions and adjustments relating to U.S. price and normal value (NV) are discussed in greater detail in the Country-Specific AD Initiation Checklists.
For Brazil, Kazakhstan, Malaysia, and Russia, the petitioners based export price (EP) on the POI average unit values derived from official U.S. import statistics for imports of ferrosilicon produced in and exported from each country.
For Brazil, the petitioners based NV on home market prices obtained through market research for ferrosilicon produced in and sold, or offered for sale, in Brazil during the applicable time period.
For Kazakhstan and Malaysia, the petitioners stated that they were unable to obtain home market or third country pricing information for ferrosilicon to use as a basis for NV.
Commerce considers Russia to be an NME country.
The petitioners claim that Malaysia is an appropriate surrogate country for Russia because it is a market economy that is at a level of economic development comparable to that of Russia and is a significant producer of comparable merchandise.
Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs within 30 days before the scheduled date of the preliminary determination.
Because information regarding the volume of inputs consumed by Russian producers/exporters was not reasonably available, the petitioners used product-specific consumption rates from a U.S. producer of ferrosilicon as a surrogate to value Russian manufacturers' FOPs (except labor).
As noted above for Kazakhstan and Malaysia, the petitioners stated that they were unable to obtain home market or third-country prices for ferrosilicon to use as a basis for NV. Therefore, for Kazakhstan and Malaysia, the petitioners calculated NV based on CV.
Pursuant to section 773(e) of the Act, the petitioners calculated CV as the sum of the cost of manufacturing, SG&A expenses, financial expenses, and profit.
Based on the data provided by the petitioners, there is reason to believe that imports of ferrosilicon from Brazil, Kazakhstan, Malaysia, and Russia are being, or are likely to be, sold in the United States at LTFV. Based on comparisons of EP to NV in accordance with sections 772 and 773 of the Act, the estimated dumping margins for ferrosilicon for each of the countries covered by this initiation are as follows: (1) Brazil—21.78 percent; (2) Kazakhstan—237.75 percent; (3) Malaysia—162.66 percent; and (4) Russia—283.27 percent.
Based upon the examination of the Petitions and supplemental responses, we find that they meet the requirements of section 732 of the Act. Therefore, we are initiating LTFV investigations to determine whether imports of ferrosilicon from Brazil, Kazakhstan, Malaysia, and Russia are being, or are likely to be, sold in the United States at LTFV. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of these initiations.
In the Petitions, the petitioner identified 11 companies in Brazil, five companies in Kazakhstan, and two companies in Malaysia as producers/exporters of ferrosilicon.
On April 12, 2024, Commerce released CBP data on imports of ferrosilicon from Brazil, Kazakhstan, and Malaysia under administrative protective order (APO) to all parties with access to information protected by APO and indicated that interested parties wishing to comment on CBP data and/or respondent selection must do so within three business days of the publication date of the notice of initiation of these investigations.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on Commerce's website at
In the Petitions, the petitioner named 11 companies in Russia as producers and/or exporters of ferrosilicon.
Commerce will post the Q&V questionnaires along with filing instructions on Commerce's website at
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). As stated above, instructions for filing such applications may be found on Commerce's website at
In order to obtain separate rate status in an NME investigation, exporters and producers must submit a separate rate application. The specific requirements for submitting a separate rate application in an NME investigation are outlined in detail in the application itself, which is available on Commerce's website at
Commerce will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:
{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that {Commerce} will now assign in its NME investigation will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the {weighted average} of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the governments of Brazil, Kazakhstan, Malaysia, and Russia via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).
Commerce will notify the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of ferrosilicon from Brazil, Kazakhstan, Malaysia, and/or Russia are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). Section 351.301(b) of Commerce's regulations requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Section 773(e) of the Act addresses the concept of particular market situation (PMS) for purposes of CV, stating that “if a particular market situation exists such that the cost of materials and fabrication or other processing of any kind does not accurately reflect the cost of production in the ordinary course of trade, the administering authority may use another calculation methodology under this subtitle or any other calculation methodology.” When an interested party submits a PMS allegation pursuant to section 773(e) of the Act (
Neither section 773(e) of the Act, nor 19 CFR 351.301(c)(2)(v), sets a deadline for the submission of cost-based PMS allegations and supporting factual information. However, in order to administer section 773(e) of the Act, Commerce must receive PMS allegations and supporting factual information with enough time to consider the submission. Thus, should an interested party wish to submit a cost-based PMS allegation and supporting new factual information pursuant to section 773(e) of the Act, it must do so no later than 20 days after submission of a respondent's initial section D questionnaire response.
We note that a PMS allegation filed pursuant to sections 773(a)(1)(B)(ii)(III) or 773(a)(1)(C)(iii) of the Act (
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by Commerce. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301, or as otherwise specified by Commerce.
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. Parties wishing to participate in these investigations should ensure that they meet the requirements of 19 CFR 351.103(d) (
This notice is issued and published pursuant to sections 732(c)(2) and 777(i) of the Act, and 19 CFR 351.203(c).
The scope of these investigations covers all forms and sizes of ferrosilicon, regardless of grade, including ferrosilicon briquettes. Ferrosilicon is a ferroalloy containing by weight four percent or more iron, more than eight percent but not more than 96 percent silicon, three percent or less phosphorus, 30 percent or less manganese, less than three percent magnesium, and 10 percent or less any other element. The merchandise covered also includes product described as slag, if the product meets these specifications.
Subject merchandise includes material matching the above description that has been finished, packaged, or otherwise processed in a third country, including by performing any grinding or any other finishing, packaging, or processing that would not otherwise remove the merchandise from the scope of the investigations if performed in the country of manufacture of the ferrosilicon.
Ferrosilicon is currently classifiable under subheadings 7202.21.1000, 7202.21.5000, 7202.21.7500, 7202.21.9000, 7202.29.0010, and 7202.29.0050 of the Harmonized Tariff Schedule of the United States (HTSUS). While the HTSUS numbers are provided for convenience and customs purposes, the written description of the scope remains dispositive.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of open public meeting.
This notice sets forth the proposed schedule and agenda of a forthcoming meeting of the Marine Fisheries Advisory Committee (MAFAC). The members will discuss and provide advice on issues outlined under
The meeting will be May 14-15, 2024 from 12:30 p.m. to 5:30 p.m. Eastern Time.
Meeting is by webinar and teleconference. Conference call and webinar access information are available at:
Katie Zanowicz, MAFAC Assistant; 301-427-8038; email:
As required by section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given of a meeting of MAFAC. The MAFAC was established by the Secretary of Commerce (Secretary) and, since 1971, advises the Secretary on all living marine resource matters that are the responsibility of the Department of Commerce. The charter and summaries of prior meetings are located online at
The meeting time and agenda are subject to change. The meeting is convened to hear presentations and discuss policies and guidance on the following topics: climate science and management for climate-ready fisheries, trade and seafood promotion activities, recreational fisheries, budget outlook, and other program updates. MAFAC will also discuss various administrative and organizational matters.
The meeting will be May 14-15, 2024 from 12:30 p.m. to 5:30 p.m. Eastern
The Coral Reef Conservation Program, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of meeting; request for comments.
NOAA and the Department of Interior (DOI) will hold the 48th meeting of the U.S. Coral Reef Task Force (USCRTF). NOAA and DOI will be accepting oral and written comments.
NOAA and DOI will hold a public meeting on Thursday, May 2, 2024, from 8:30 a.m. to 5 p.m. Eastern Time (ET) at the NOAA Auditorium located at 1305 East-West Highway, Silver Spring, Maryland 20910. Written comments must be received before 8 a.m. ET on May 1, 2024.
Comments may be submitted by the following methods:
The oral and written comments NOAA and DOI receive are considered part of the public record, and the entirety of the comment, including the name of the commenter, email address, attachments, and other supporting materials, will be publicly accessible. Sensitive personally identifiable information, such as account numbers and Social Security numbers, should not be included with the comment. Comments that are not related to the U.S. Coral Reef Task Force or that contain profanity, vulgarity, threats, or other inappropriate language will not be considered.
Michael Lameier, NOAA USCRTF Steering Committee Point of Contact, NOAA Coral Reef Conservation Program, (410) 267-5673,
The meeting provides a forum for coordinated planning and action among Federal agencies, State and territorial governments, and non-governmental partners. Registration is requested to participate in the meeting. This meeting has time allotted for public oral comment from 2:00 p.m. to 2:30 p.m. ET. A written summary of the meeting will be posted on the USCRTF website within two months of occurrence. For more information about the meeting, registering for the meeting, and submitting public comments, visit
United States Patent and Trademark Office, Department of Commerce.
Notice of information collection; request for comment.
The United States Patent and Trademark Office (USPTO), as required by the Paperwork Reduction Act of 1995, invites comments on the extension and revision of an existing information collection: 0651-0009 (Applications for Trademark Registration). The purpose of this notice is to allow 60 days for public comment preceding submission of the information collection to OMB.
To ensure consideration, comments regarding this information collection must be received on or before June 24, 2024.
Interested persons are invited to submit written comments by any of the following methods. Do not submit Confidential Business Information or otherwise sensitive or protected information.
•
•
•
Requests for additional information should be directed to Catherine Cain, Attorney Advisor, Office of the Commissioner for Trademarks, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450; by telephone at 571-272-8946; or by email at
The United States Patent and Trademark Office (USPTO) administers the Trademark Act (Act), 15 U.S.C. 1051
This information collection addresses submissions required by the regulations at 37 CFR part 2 for initial applications regarding the registration of trademarks, service marks, collective trademarks and
Items in this information collection must be submitted electronically. In limited circumstances, applicants may also be permitted to submit the information in paper form by mail, fax, or hand delivery.
Forms:
A complete application must include a filing fee for each class of goods and services. Therefore, the total filing fees associated with this information collection can vary depending on the number of classes in each application. The total filing fees shown in the table below reflect the minimum filing fees associated with this information collection.
The USPTO charges a processing fee of $100 per class for TEAS Plus applications that do not meet the TEAS Plus filing requirements. The total processing fees associated with this information collection can vary depending on the number of classes in each application.
The total processing fees shown in the table below reflect the minimum processing fees associated with this information collection.
In limited circumstances, applicants may be permitted to submit the information in paper form by mail, fax, or hand delivery. Applicants and registrants incur postage costs when submitting information to the USPTO by mail through the United States Postal Service. The USPTO estimates that 3 items will be submitted in the mail. The USPTO estimates that the average postage cost for a mailed submission, using a Priority Mail legal flat rate envelope, will be $10.15. Therefore, the USPTO estimates the total mailing costs for this information collection at $30.
The USPTO is soliciting public comments to:
(a) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected; and
(d) 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,
All comments submitted in response to this notice are a matter of public record. The USPTO will include or summarize each comment in the request to OMB to approve this information collection. Before including an address, phone number, email address, or other personally identifiable information (PII) in a comment, be aware that the entire comment—including PII—may be made publicly available at any time. While you may ask in your comment to withhold PII from public view, the USPTO cannot guarantee that it will be able to do so.
Committee for the Implementation of Textile Agreements.
Notice; request for public comments.
On February 20, 2024, the Government of the United States (“United States”) received a request from the Government of Canada
Comments must be submitted by May 24, 2024.
Submit public comments electronically to the Chairman, Committee for the Implementation of Textile Agreements at
Laurie Mease, Office of Textiles and Apparel (“OTEXA”), U.S. Department of Commerce,
The USMCA Implementation Act provides the President with the authority to proclaim, as part of the Harmonized Tariff Schedule of the United States, such modifications to the USMCA rules of origin set out in Annex 4-B of the USMCA as are necessary to implement an agreement with Canada and Mexico under Article 6.4.3 of the USMCA, subject to the consultation and layover requirements of Section 104 of the USMCA Implementation Act. (
Executive Order 11651 established CITA to supervise the implementation of textile trade agreements and authorizes the Chairman of CITA to take actions or recommend that appropriate officials or agencies of the United States take actions necessary to implement textile trade agreements. (
The President may use this recommendation from CITA as part of the consultations with the Parties regarding the proposed change to the USMCA rules of origin.
On February 20, 2024, Canada submitted a request to the United States and Mexico to consult on whether the USMCA rule of origin for certain end-use fabrics for use in fire hose should be modified to allow the use of certain high-tenacity polyester yarns that are not originating under the USMCA. The yarns subject to this request and their specific end uses are described below.
CITA is soliciting public comments on this request, particularly with respect to whether the yarns described above can be supplied by the U.S. domestic industry in commercial quantities in a timely manner. If a comment alleges that the yarn described above can be supplied by a U.S. supplier in commercial quantities in a timely manner, OTEXA, which provides staff support to CITA, will closely review any supporting documentation, such as a signed statement by a manufacturer of the yarn stating that it produces the yarn that is the subject of this request,
Complete comments, including any attachments and submissions containing confidential business information (CBI), must be received no later than May 24, 2024.
Interested persons are invited to submit comments not containing CBI electronically to the Chairman of the Committee for the Implementation of Textile Agreements at
For those seeking to submit comments with CBI for government use only, please clearly mark such submissions as CBI and submit an accompanying version redacting the CBI to be made public. Submissions containing CBI may be submitted electronically through the Department of Commerce's secure online file sharing tool. Access to the secure electronic system will be by invitation only. Interested persons planning to file a submission containing CBI should contact Laurie Mease at
CITA will protect any information that is marked business confidential from disclosure to the full extent permitted by law. Information marked as business confidential will be shared with OTEXA staff tasked with reviewing responses to this request for comment, and may be shared with CITA members, at the request of the CITA member, as they consider making a recommendation with respect to a modification of the USMCA rules of origin. CBI will not be shared with representatives of the Governments of Canada and Mexico during consultation among the Parties as they consider whether to modify the USMCA rules of origin, as discussed above.
Public versions of all comments received will be posted on OTEXA's website for commercial availability proceedings under the USMCA:
Defense Contract Audit Agency, Department of Defense (DoD).
Notice of a modified system of records.
In accordance with the Privacy Act of 1974, the DoD is modifying and reissuing a current system of records titled, “DCAA Management Information System (DMIS), RDCAA 590.8.” This system of records was originally established by the Defense Contract Audit Agency (DCAA) to collect and maintain records on audit requirements, programs, and performance and to provide timekeepers with access to time and attendance records. This system of records notice (SORN) is being updated to change the SORN title from “DCAA Management Information System (DMIS)” to “DCAA Portfolio Management System Records.” The DoD is also modifying various other sections within the SORN to improve clarity or update information that has changed.
This system of records is effective upon publication; however, comments on the Routine Uses will be accepted on or before May 24, 2024. The Routine Uses are effective at the close of the comment period.
You may submit comments, identified by docket number and title, by either of the following methods:
*
*
Keith Mastromichalis, FOIA, Privacy, and Civil Liberties Officer, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219,
The DCAA Management Information System is used to collect and maintain records on audit requirements, programs, and performance as well as to plan, perform, and oversee non-audit projects supporting Agency mission and initiatives. This system of records name is changing from “DCAA Management Information System” to “DCAA Portfolio Management System Records.” Subject to public comment, the DoD is updating this SORN to add the standard DoD routine uses (A through J). Additionally, the following sections of this SORN are being modified as follows: (1) to the System Manager and System Location sections to update system name and Location to reflect the cloud environment; (2) to the Authority for Maintenance of the System to update citations and add additional authorities; (3) to the Purpose of the System section to clarity the scope of the system; (4) to the Categories of Records in the System to add additional categories and to remove Social Security Number; (5) to the Purpose to provide clarity on the scope of collection; (6) to the Records Source Categories to add additional sources; (7) to the Records Storage Section to update storage medium in which records are maintained; to Retrievability to reduce the identifiers listed for records retrieval; (8) to the Record Access, Notification, and Contesting Record Procedures section, to reflect the need for individuals to identify the appropriate DoD office and/or component to direct their request and to update the appropriate citation for contesting records. and (9) to the Record Source Categories to list the appropriate Federal information systems.
DoD SORNs have been published in the
Under the Privacy Act, a “system of records” is a group of records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined as a U.S. citizen or lawful permanent resident.
In accordance with 5 U.S.C. 552a(r) and Office of Management and Budget (OMB) Circular No. A-108, OATSD (PCLT) has provided a report of this system of records to the OMB and to Congress.
DCAA Portfolio Management System Records, RDCAA 590.8.
Unclassified.
Department of Defense (Department or DoD), located at 1000 Defense Pentagon, Washington, DC 20301-1000, and other Department installations, offices, or mission locations. Information may also be stored within a government-certified cloud, implemented and overseen by the Department's Chief Information Officer (CIO), 6000 Defense Pentagon, Washington, DC 20301-6000.
The system manager is Chief Digital and AI Office, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
DoDD 5105.36, Defense Contract Audit Agency, and DoDI 7640.02, Policy for Follow-Up on Contract Audit Reports.
To provide managers, supervisors, and team members with timely, online information regarding audit requirements, programs, and performance as well as to plan, perform, and oversee non-audit projects supporting Agency mission and initiatives.
Defense Contract Audit Agency (DCAA) employees.
Records relating to audit work performed in terms of hours expended by individual employees, dollar amounts audited, exceptions reported, audit activity codes, and net savings to the government as a result of those exceptions; records containing employee data; name, DOD ID Number, position/title, rank/grade, work email address, official duty telephone number, time and attendance, and work schedule; and records containing office information,
Records and information stored in this system of records are obtained from: Individuals; existing DoD information systems, such as Defense Civilian Personnel Data System (DCPDS), Defense Agencies Initiative (DAI), Learning Management System (LMS), and System for Award Management (SAM); Procurement Integrated Enterprise Environment (PIEE); audit reports and working papers.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, all or a portion of the records or information contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the Federal government when necessary to accomplish an agency function related to this system of records.
B. To the appropriate Federal, State, local, territorial, tribal, foreign, or international law enforcement authority or other appropriate entity where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law, whether criminal, civil, or regulatory in nature.
C. To any component of the Department of Justice for the purpose of representing the DoD, or its components, officers, employees, or members in pending or potential litigation to which the record is pertinent.
D. In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body or official, when the DoD or other Agency representing the DoD determines that the records are relevant and necessary to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
E. To the National Archives and Records Administration for the purpose of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
F. To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
G. To appropriate agencies, entities, and persons when (1) the DoD suspects or confirms a breach of the system of records; (2) the DoD determines as a result of the suspected or confirmed breach there is a risk of harm to individuals, the DoD (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the DoD's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
H. To another Federal agency or Federal entity, when the DoD determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
I. To another Federal, State or local agency for the purpose of comparing to the agency's system of records or to non-Federal records, in coordination with an Office of Inspector General in conducting an audit, investigation, inspection, evaluation, or other review as authorized by the Inspector General Act.
J. To such recipients and under such circumstances and procedures as are mandated by Federal statute or treaty.
Records may be stored electronically or on magnetic disc, tape, or digital media; in agency-owned cloud environments; or in vendor Cloud Service Offerings certified under the Federal Risk and Authorization Management Program (FedRAMP).
Records may be retrieved by individuals' name and DoD ID number.
Records Schedule DAA-0372-2024-0001 is being reviewed by NARA pending approval. NARA appraiser had some recommended changes which we are re-submitting for review and approval. Records will be maintained as
The DoD safeguards records in this system of records according to applicable rules, policies, and procedures, including all applicable DoD automated systems security and access policies. DoD policies require the use of controls to minimize the risk of compromise of personally identifiable information (PII) in paper and electronic form and to enforce access by those with a need to know and with appropriate clearances. Additionally, the DoD established security audit and accountability policies and procedures which support the safeguarding of PII and detection of potential PII incidents. The DoD routinely employs safeguards such as the following to information systems and paper recordkeeping systems: Multifactor log-in authentication including Common Access Card (CAC) authentication and password; physical token as required; physical and technological access controls governing access to data; network encryption to protect data transmitted over the network; disk encryption securing disks storing data; key management services to safeguard encryption keys; masking of sensitive data as practicable; mandatory information assurance and privacy training for individuals who will have access; identification, marking, and safeguarding of PII; physical access safeguards including multifactor identification physical access controls, detection and electronic alert systems for access to servers and other network infrastructure; and electronic intrusion detection systems in Agency facilities.
Individuals seeking access to their records should address written inquiries to the Defense Contract Audit Agency, FOIA Requester Service Center, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219. Signed written requests should contain the name and number of this system of records notice along with full name, current address, and email address of the individual. In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the appropriate format:
If executed outside the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”
If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
The DoD rules for accessing records, contesting contents, and appealing initial Component determinations are contained in 32 CFR part 310, or may be obtained from the system manager.
Individuals seeking to determine whether information about themselves is contained in this system of records should follow the instructions for Record Access Procedures above.
None.
November 9, 2005, 70 FR 67995.
Defense Finance and Accounting Service (DFAS), Department of Defense (DoD).
Notice of a modified system of records.
In accordance with the Privacy Act of 1974, the DoD is modifying and reissuing a current system of records titled, “MyPay System,” T7336. This system of records was originally established by the DFAS to collect and maintain records on individual payroll accounts. This system of records notice (SORN) is being updated to expand the `Categories of Individuals Covered' section to cover non-appropriate personnel, and to add the standard DoD routine uses (routine uses A through J). The DoD is also modifying various other sections within the SORN to improve clarity or update information that has changed.
This system of records is effective upon publication; however, comments on the Routine Uses will be accepted on or before May 24, 2024. The Routine Uses are effective at the close of the comment period.
You may submit comments, identified by docket number and title, by either of the following methods:
*
*
Comments should be sent electronically to the docket listed above.
Mr. Gregory L. Outlaw, Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications, DFAS-ZCF/N, 8899 E 56th Street, Indianapolis, IN 46249-0150 or by phone at (317) 212-4591.
The MyPay system of records is used to track and allow authorized individuals the ability to retrieve, review, and update payroll information. It is an innovative, automated system that puts the authorized individual in control of processing certain discretionary pay items without using paper forms. Subject to public comment, the DoD is adding the standard DoD routine uses (routine uses A through J). Additionally, the following sections of this SORN are being modified as follows: (1) to the System Manager and System Location sections to update the addresses and office names; (2) to the Authority for Maintenance of the System section to add additional authorities; (3) to the Purpose of the System section to clarity the scope of the system; (4) to the Categories of Individuals to expand the individuals covered; (5) to the Categories of Records in the System to add additional categories; (6) to the Records Source Categories to add additional sources; (7) to the Records Storage Section to update storage medium in which records are maintained; (8) to the Administrative, Technical, and Physical Safeguards to
DoD SORNs have been published in the
Under the Privacy Act, a “system of records” is a group of records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined as a U.S. citizen or lawful permanent resident.
In accordance with 5 U.S.C. 552a(r) and Office of Management and Budget (OMB) Circular No. A-108, OATSD (PCLT) has provided a report of this system of records to the OMB and to Congress.
MyPay System, T7336.
Unclassified.
A. Defense Finance and Accounting Service—Indianapolis, 8899 East 56th St., Indianapolis, IN 46249.
B. Office of Personnel Management, 4685 Log Cabin Drive, Macon, GA 31204-6317.
MyPay System Manager, Defense Finance and Accounting Service—Indianapolis, (DFAS-IN/ZTBD), 8899 East 56th Street, Indianapolis, IN 46249,
5 U.S.C. Chapter 53, Pay Rates and Systems; 5 U.S.C. Chapter 55, Pay Administration; 5 U.S.C. Chapter 81, Compensation For Work Injuries; 10 U.S.C. 113, Secretary of Defense; 10 U.S.C. Chapter 11, Reserve Components; 10 U.S.C. Chapter 61, Retirement Or Separation For Physical Disability; 10 U.S.C. Chapter 63, Retirement For Age; 10 U.S.C. Chapter 65, Retirement Of Warrant Officers For Length Of Service; 10 U.S.C. Chapter 67, Retired Pay for Non-Regular Service; 10 U.S.C Chapter 69, Retired Grade; 10 U.S.C. Chapter 71, Computation Of Retired Pay; 10 U.S.C. Chapter 73, Annuities Based on Retired or Retainer Pay; 37 U.S.C., sections 101-1015, Pay And Allowances Of The Uniformed Services; and E.O. 9397 (SSN) as amended.
To track and allow authorized individuals the ability to retrieve, review and update payroll information from their specific payroll system(s). Records are also used for extraction or compilation of data and reports for management studies and statistical analyses for use internally or externally as required by DoD or other government agencies.
A. Active Duty and Reserve military personnel, Military service academy cadets, Naval Reserve Officer Training Corps students; Reserve/National Guard retiree not yet eligible for retired pay, Armed Forces Health Professions Scholarship Program (AFHPSP) students.
B. DoD Civilian employees, to include Non-Appropriated Funds (NAF) employees.
C. Military retirees, their former spouses (Former Spouse Protection Act (FSPA) Claimants), and annuitants.
D. Other Federal agencies employees, to include Executive Office of the President employees, Department of Health and Human Services, Department of Energy, Department of Veterans Affairs, and United States Agency for Global Media.
A. Personal Information, to include name, Social Security Number (SSN), DoD ID number, military branch of service, employment status (as appropriate), pay plan/grade/step, and home address and email.
B. Financial Information, to include pay, wage, benefits, earnings, and allowances; additional pay (bonuses, special and incentive pays); allotments and other withholdings, such as taxes withheld/paid, debts, and retirement contributions; banking information; leave balances and leave history.
C. Transaction Information, to include records of transactions initiated by the individual using the MyPay system, such as mailing address, allotments, tax withholdings, direct deposit, and health savings account.
Records and information stored in this system of records are obtained from: Individual; Defense Joint Military Pay System (DJMS), Defense Civilian Pay System (DCPS), Defense Manpower Data Center (DMDC), Health and Human Services (HHS), Veteran Affairs (VA), Executive Office of the President, Department of Energy and United States Agency for Global Media.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, all or a portion of the records or information contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the Federal Government when necessary to accomplish an agency function related to this system of records.
B. To the appropriate Federal, State, local, territorial, tribal, foreign, or international law enforcement authority or other appropriate entity where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law, whether criminal, civil, or regulatory in nature.
C. To any component of the Department of Justice for the purpose of representing the DoD, or its components, officers, employees, or members in pending or potential litigation to which the record is pertinent.
D. In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body or official, when the DoD or other Agency representing the DoD determines that the records are relevant and necessary to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
E. To the National Archives and Records Administration for the purpose of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
F. To a Member of Congress or staff acting upon the Member's behalf when
G. To appropriate agencies, entities, and persons when (1) the DoD suspects or confirms a breach of the system of records; (2) the DoD determines as a result of the suspected or confirmed breach there is a risk of harm to individuals, the DoD (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the DoD's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
H. To another Federal agency or Federal entity, when the DoD determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
I. To another Federal, State or local agency for the purpose of comparing to the agency's system of records or to non-Federal records, in coordination with an Office of Inspector General in conducting an audit, investigation, inspection, evaluation, or some other review as authorized by the Inspector General Act.
J. To such recipients and under such circumstances and procedures as are mandated by Federal statute or treaty.
Records may be stored electronically in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, or digital media; in agency-owned cloud environments; or in vendor Cloud Service Offerings certified under the Federal Risk and Authorization Management Program (FedRAMP).
Records may be retrieved by name and SSN.
Records may be temporary in nature and destroyed when actions are completed, they are superseded, obsolete, or no longer needed. Other records may be cut off at the end of the payroll year, destroyed up to 6 years and 3 months after cutoff.
The DoD safeguards records in this system of records according to applicable rules, policies, and procedures, including all applicable DoD automated systems security and access policies. DoD policies require the use of controls to minimize the risk of compromise of personally identifiable information (PII) in paper and electronic form and to enforce access by those with a need to know and with appropriate clearances. Additionally, the DoD established security audit and accountability policies and procedures which support the safeguarding of PII and detection of potential PII incidents. The DoD routinely employs safeguards such as the following to information systems and paper recordkeeping systems: Multifactor log-in authentication including Common Access Card (CAC) authentication and password; physical token as required; physical and technological access controls governing access to data; network encryption to protect data transmitted over the network; disk encryption securing disks storing data; key management services to safeguard encryption keys; masking of sensitive data as practicable; mandatory information assurance and privacy training for individuals who will have access; identification, marking, and safeguarding of PII; physical access safeguards including multifactor identification physical access controls, detection and electronic alert systems for access to servers and other network infrastructure; and electronic intrusion detection systems in DoD facilities.
Individuals seeking access to their records should address written inquiries to the Defense Finance and Accounting, Freedom of Information/Privacy Act Program Manager, Corporate Communications, DFAS-ZCF/IN, 8899 E 56th Street, Indianapolis, IN 46249-0150. Signed written requests should contain the name and number of this system of records notice along with full name, SSN for verification, current address, and email address of the individual. In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the appropriate format:
If executed outside the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”
If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
The DoD rules for accessing records, contesting contents, and appealing initial Component determinations are contained in 32 CFR part 310, or may be obtained from the system manager.
Individuals seeking to determine whether information about themselves is contained in this system of records should follow the instructions for Record Access Procedures above.
None.
June 16, 2006, 71 FR 34898.
Office of Elementary and Secondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for fiscal year (FY) 2024 for the SFIG Program, Assistance Listing Number (ALN) number 84.282D. This notice relates to the approved information collection under OMB control number 1855-0012.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Clifton Jones, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5970. Telephone: (202) 205-2204. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
Lack of access to adequate facilities is one of the biggest obstacles to creating and expanding
The Secretary has encouraged all stakeholders to “Raise the Bar: Lead the World” in education to provide opportunities for students to reach new heights in the classroom, in their careers, and in their lives and communities, making a positive difference in the world for generations to come. Ensuring students have access to safe, healthy, sustainable, and equitable physical learning environments is a critical component of the “Raise the Bar: Lead the World” initiative. The SFIG Program can support charter schools that serve students from low-income backgrounds and students of color located in low-resourced, underfunded areas in providing access to high-quality facilities.
Under 34 CFR 75.105(c)(2)(i) we award an additional 10 points to those applicants that meet this priority.
This priority is:
Applicants that have not previously received a grant under the program.
The following definitions are from sections 4310(1), 4310(2), 4304(k)(1), and 8101(48) of the ESEA (20 U.S.C. 7221i(1), 7221i(2), 7221c(k)(1), 7801)), and 34 CFR 77.1(c).
(a) In accordance with a specific
(b) Is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;
(c) Operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the
(d) Provides a program of elementary or secondary education, or both;
(e) Is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;
(f) Does not charge tuition;
(g) Complies with the Age Discrimination Act of 1975 (42 U.S.C. 6101
(h) Is a school to which parents choose to send their children, and that—
(i) Admits students on the basis of a lottery, consistent with section 4303(c)(3)(A) of the ESEA (20 U.S.C. 7221b(c)(3)(A)), if more students apply for admission than can be accommodated; or
(ii) In the case of a school that has an affiliated
(i) Agrees to comply with the same Federal and
(j) Meets all applicable Federal,
(k) Operates in accordance with
(l) Has a written performance contract with the
(m) May serve students in early childhood education programs or postsecondary students. (Section 4310(2) of the ESEA)
(a) That is dedicated solely to funding
(b) A portion of which is dedicated for funding
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
1.
(a) Is specified in
(b) Provides annual financing, on a per-pupil basis, for
2. a.
Applicants that are provisionally selected to receive grants will not receive grant funds unless they demonstrate, by September 1, 2024, that they are, or will be able to, provide the
b.
c. I
d.
Consistent with the requirements in 34 CFR 75.564(c)(2), any
3.
(a) All iron and steel used in the infrastructure project or activity are produced in the United States;
(b) All manufactured products used in the infrastructure project or activity are produced in the United States; and
(c) All construction materials are manufactured in the United States.
Grantees may request waivers to these requirements by submitting a Build America, Buy America Act Waiver Request Form. For more information, including a link to the Waiver Request Form, see the Department's Build America Buy America Waiver website at:
4. Other: The
1.
2.
Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
4.
5.
• A “page” is 8.5″ x 11″ , on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
Furthermore, applicants are strongly encouraged to include a table of contents that specifies where each required part of the application is located.
6.
1.
(a)
(1) The need for per-pupil
(2) The extent to which the proposal meets the need to fund
(b)
(1) The likelihood that the proposed grant project will result in the State either retaining a new per-pupil facilities aid program or continuing to enhance such a program without the total amount of assistance (State and Federal) declining over a five-year period.
(2) The flexibility
(3) The quality of the plan for identifying charter schools and determining their eligibility to receive funds.
(4) The per-pupil facilities aid formula's ability to target resources to charter schools with the greatest need and the highest proportions of students in poverty.
(5) For projects that plan to reserve funds for evaluation, the quality of the applicant's plan to use grant funds for this purpose.
(6) For projects that plan to reserve funds for technical assistance, dissemination, or personnel, the quality of the applicant's plan to use grant funds for these purposes.
(c)
(1) The qualifications, including relevant training and experience, of the project manager and other members of the grant project team, including employees not paid with grant funds, consultants, and subcontractors.
(2) The adequacy and appropriateness of the applicant's staffing plan for the grant project.
(d)
(1) The extent to which the requested grant amount and the project costs are reasonable in relation to the objectives, design, and potential significance of the proposed grant project.
(2) The extent to which the costs are reasonable in relation to the number of students served and to the anticipated results and benefits.
(3) The extent to which the non-Federal share exceeds the minimum percentages (which are based on the percentages under section 4304(k)(2)(C) of the ESEA), particularly in the initial years of the program.
(e)
(1) The experience of the State in addressing the facility needs of charter schools through various means, including providing per-pupil aid and access to State loan or bonding pools.
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
5.
(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
3.
Additionally, a grantee or subgrantee that is awarded competitive grant funds must have a plan to disseminate these public grant deliverables. This dissemination plan can be developed and submitted after your application has been reviewed and selected for funding. For additional information on the open licensing requirements please refer to 2 CFR 3474.20(c).
4.
(a) If you apply for a grant under this competition, you must ensure that you have in place the necessary processes and systems to comply with the reporting requirements in 2 CFR part 170 should you receive funding under the competition. This does not apply if you have an exception under 2 CFR 170.110(b).
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
5.
(a)
(b)
(1)
(2)
(3)
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
7.
8.
You may also access documents of the Department published in the
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before May 24, 2024.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Victoria Hammer, (202) 260-1438.
The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
The purpose for this collection is to ensure that the Department has sufficient information to review and, if appropriate, approve submissions to include in the Clearinghouse.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before May 24, 2024.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Beth Grebeldinger, (202) 377-4018.
The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate;
Office of Elementary and Secondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for two types of grants: CSP Developer Grants, Assistance Listing Numbers 84.282B (for the opening of new charter schools) and 84.282E (for the replication and expansion of high-quality charter schools). This notice relates to the approved information collection under OMB control number 1810-0767.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Stephanie S. Jones, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5970. Telephone: (202) 453-5563. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
The CSP Developer Grant program (Assistance Listing Numbers 84.282B and 84.282E) is authorized under Title IV, Part C of the ESEA (20 U.S.C. 7221-7221j). Through CSP Developer Grants, the Department provides financial assistance to charter school
“Raise the Bar: Lead the World” (RTB) is the Department's call to action to all stakeholders to transform pre-kindergarten through postsecondary education and unite around
Further, in July 2022, the Department published in the
This notice includes one competitive preference priority and two invitational priorities. The first invitational priority is designed to encourage collaboration between charter schools and traditional public schools or traditional school districts that benefit students and families across schools and was taken from the 2022 NFP. The types of collaborations sought under this priority can support improved opportunities and outcomes for students in both charter schools and traditional public schools, including by sharing instructional materials, creating joint professional learning opportunities, and developing principal pipeline programs. The second invitational priority for this competition encourages high-quality charter schools to create pathways to multilingualism for students, particularly underserved students. High-quality multilingual programming provides English learners and native English speakers with the opportunity to become bilingual and biliterate and may support Native American language education and preservation. It also celebrates the assets of English learners while supporting English language acquisition and promoting academic excellence, and may support efforts to promote school and classroom diversity.
The priorities, application requirements, assurances, selection criteria, and definitions in this notice are designed to increase access to high-quality, diverse, and equitable learning opportunities, which is consistent with the RTB initiative and the Department's goals for all public schools.
For Assistance Listing Numbers 84.282B and 84.282E, under 34 CFR 75.105(c)(2)(i), we will award up to an additional 5 points to an application that meets the competitive preference priority, depending on how well the application meets the priority.
The priority is:
(a) Under this priority, an applicant must propose to open a new charter school, or to replicate or expand a high-quality charter school, that is developed and implemented—
(1) With meaningful and ongoing engagement with current or former teachers and other educators; and
(2) Using a community-centered approach that includes an assessment of
(b) In its application, an applicant must provide a high-quality plan that demonstrates how its proposed project would meet the requirements in paragraph (a) of this priority, accompanied by a timeline for key milestones that span the course of planning, development, and implementation of the charter school. (2022 NFP)
These priorities are:
(a) The Secretary is particularly interested in learning more about how applicants propose a new collaboration, or the continuation of an existing collaboration, with at least one traditional public school or traditional school district that is designed to benefit students or families served by at least one member of the collaboration, is designed to lead to increased or improved educational opportunities for students served by at least one member of the collaboration, and includes implementation of one or more of the following—
(1) Co-developed or shared curricular and instructional resources or academic course offerings.
(2) Professional development opportunities for teachers and other educators, which may include professional learning communities, opportunities for teachers to earn additional certifications, such as in a high-need area or national board certification, and partnerships with educator preparation programs to support teaching residencies.
(3) Evidence-based practices to improve academic performance for underserved students.
(4) Policies and practices to create safe, supportive, and inclusive learning environments, such as systems of positive behavioral intervention and support.
(5) Transparent enrollment and retention practices and processes that include clear and consistent disclosure to families of policies or requirements (
(6) A shared transportation plan and system that reduces transportation costs for at least one member of the collaboration and takes into consideration various transportation options, including public transportation and district-provided or shared transportation options, cost-sharing or free or reduced-cost fare options, and any distance considerations for prioritized bus services.
(7) A shared special education collaborative designed to address a significant barrier or challenge faced by participating charter schools or traditional public schools in improving academic and developmental outcomes and services for students with disabilities (as defined in section 8101 of the ESEA).
(8) A shared English learner collaborative designed to address a significant barrier or challenge faced by participating charter schools or traditional public schools in providing educational programs to improve academic outcomes for English learners.
(9) Other collaborations, such as the sharing of innovative and best practices, designed to address a significant barrier or challenge faced by participating charter schools or traditional public schools in providing educational programs to improve academic outcomes for all students served by members of the collaboration.
(b) In its application, an applicant must provide a description of the collaboration that—
(1) Describes each member of the collaboration and whether the collaboration would be a new or existing commitment;
(2) States the purpose and duration of the collaboration;
(3) Describes the anticipated roles and responsibilities of each member of the collaboration;
(4) Describes how the collaboration will benefit one or more members of the collaboration, including how it will benefit students or families affiliated with a member and lead to increased educational opportunities for students, and meet specific and measurable, if applicable, goals;
(5) Describes the resources members of the collaboration will contribute; and
(6) Contains any other relevant information.
(c) Within 120 days of receiving a grant award or within 120 days of the date the collaboration is scheduled to begin, whichever is later, the grantee provides evidence of participation in the collaboration (which may include, but is not required to include, a memorandum of understanding).
The Secretary is particularly interested in learning more about how applicants propose to replicate or expand high-quality charter schools with multilingual programming that is centered on the needs and assets of the community the schools serve and is designed to provide students, particularly underserved students, with pathways to multilingualism through any of the following—
(a) Dual language programs that offer academic instruction in two languages and are designed to enroll both English learners and native English speakers on an equitable basis and ensure all students become bilingual and biliterate in both languages.
(b) A mission and focus on supporting Native American language education and development, such as through dual language programs or other instructional models and teaching methods that reflect and preserve Native American language, culture, and history.
(c) A mission and focus on meeting the unique educational needs and celebrating the assets of English learners using evidence-based practices to support English language acquisition and promote academic excellence.
(d) Other innovative or evidence-based strategies to promote multilingualism, including approaches to recruit, support, and retain multilingual educators.
The following definitions are from sections 4310 (20 U.S.C. 7221i) and 8101 (20 U.S.C. 7801) of the ESEA, 34 CFR 77.1, and the 2019 and 2022 NFPs.
(1) In accordance with a specific State statute authorizing the granting of charters to schools, is exempt from significant State or local rules that inhibit the flexible operation and management of public schools, but not from any rules relating to the other requirements of this definition;
(2) Is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;
(3) Operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the authorized public chartering agency;
(4) Provides a program of elementary or secondary education, or both;
(5) Is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;
(6) Does not charge tuition;
(7) Complies with the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 (42 U.S.C. 12101
(8) Is a school to which
(i) Admits students on the basis of a lottery, consistent with section 4303(c)(3)(A) of the ESEA, if more students apply for admission than can be accommodated; or
(ii) In the case of a school that has an affiliated charter school (such as a school that is part of the same network of schools), automatically enrolls students who are enrolled in the immediate prior grade level of the affiliated charter school and, for any additional student openings or student openings created through regular attrition in student enrollment in the affiliated charter school and the enrolling school, admits students on the basis of a lottery as described in clause (i);
(9) Agrees to comply with the same Federal and State audit requirements as do other elementary schools and secondary schools in the State, unless such State audit requirements are waived by the State;
(10) Meets all applicable Federal, State, and local health and safety requirements;
(11) Operates in accordance with State law;
(12) Has a written performance contract with the authorized public chartering agency in the State that includes a description of how student performance will be measured in charter schools pursuant to State assessments that are required of other schools and pursuant to any other assessments mutually agreeable to the authorized public chartering agency and the charter school; and
(13) May serve students in early childhood education programs or postsecondary students. (Section 4310(2) of the ESEA)
(1) A child (i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, deaf-blindness, or multiple disabilities; and (ii) who, by reason thereof, needs special education and related services.
(2) For a child aged 3 through 9 (or any subset of that age range, including ages 3 through 5), may, at the discretion of the State and the LEA, include a child (i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development; cognitive development; communication development; social or emotional development; or adaptive development; and (ii) who, by reason thereof, needs special education and related services. (Section 8101(4) of the ESEA)
(1) Human assets, including capacities, skills, knowledge base, and abilities of individuals within a community; and
(2) Social assets, including networks, organizations, businesses, and institutions that exist among and within groups and communities. (2022 NFP)
(1) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831
(2) A State licensed or regulated child care program;
(3) A program that—
(i) Serves children from birth through age 6 that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and
(ii) Is (A) a State prekindergarten program; (B) a program authorized under section 619 (20 U.S.C. 1419) or part C of the IDEA; or (C) a program operated by an LEA. (ESEA section 8101(16))
(1) Who is aged 3 through 21;
(2) Who is enrolled or preparing to enroll in an elementary school or secondary school;
(3)(i) Who was not born in the United States or whose native language is a language other than English;
(ii)(A) Who is a Native American or Alaska Native, or a native resident of the outlying areas; and
(B) Who comes from an environment where a language other than English has
(iii) Who is migratory, whose native language is a language other than English, and who comes from an environment where a language other than English is dominant; and
(4) Whose difficulties in speaking, reading, writing, or understanding the English language may be sufficient to deny the individual—
(i) The ability to meet the challenging State academic standards;
(ii) The ability to successfully achieve in classrooms where the language of instruction is English; or
(iii) The opportunity to participate fully in society. (Section 8101(20) of the ESEA)
(1) In general.—The term `evidence-based', when used with respect to a State, local educational agency, or school activity, means an activity, strategy, or intervention that—
(i) Demonstrates a statistically significant effect on improving student outcomes or other relevant outcomes based on—
(A) Strong evidence from at least one well-designed and well-implemented experimental study;
(B) Moderate evidence from at least one well-designed and well-implemented quasi-experimental study; or
(C) Promising evidence from at least one well-designed and well-implemented correlational study with statistical controls for selection bias; or
(ii)(A)
(B) Includes ongoing efforts to examine the effects of such activity, strategy, or intervention. (Section 8101(21) of the ESEA)
(1) Shows evidence of strong academic results, which may include strong student academic growth, as determined by a State;
(2) Has no significant issues in the areas of student safety, financial and operational management, or statutory or regulatory compliance;
(3) Has demonstrated success in significantly increasing student academic achievement, including graduation rates where applicable, for all students served by the charter school; and
(4) Has demonstrated success in increasing student academic achievement, including graduation rates where applicable, for each of the subgroups of students, as defined in section 1111(c)(2) of the ESEA, except that such demonstration is not required in a case in which the number of students in a group is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student. (Section 4310(8) of the ESEA)
(1) A student who is living in poverty or is served by schools with high concentrations of students living in poverty.
(2) A student of color.
(3) A student who is a member of a federally recognized Indian Tribe.
(4) An
(5) A
(6) A
(7) A migrant student.
(8) A student experiencing homelessness or housing insecurity.
(9) A student who is in foster care.
(10) A pregnant, parenting, or caregiving student.
(11) A student impacted by the justice system, including a formerly incarcerated student.
(12) A student performing significantly below grade level. (2022 NFP)
Applications for CSP Developer Grant funds must address the following application requirements. These requirements are from section 4303(f)
In addressing the application requirements, applicants must clearly identify which application requirement they are addressing. Except as otherwise provided, an applicant may choose to respond to each requirement separately or in the context of the applicant's responses to the selection criteria in section V.1 of this notice.
Applicants for grants under Assistance Listing Numbers 84.282B or 84.282E must address the following
(a) Describe the eligible applicant's objectives in running a quality charter school program and how the objectives of the program will be carried out, including—
(1) How the eligible applicant will ensure that charter schools receiving funds under this program meet the educational needs of their students, including children with disabilities and English learners (Section 4303(f)(1)(A)(x) of the ESEA);
(2) A description of the roles and responsibilities of eligible applicants, partner organizations, and
(3) A description of the quality controls agreed to between the eligible applicant and the authorized public chartering agency involved, such as a contract or performance agreement, how a school's performance in the State's accountability system and impact on student achievement (which may include student academic growth) will be one of the most important factors for renewal or revocation of the school's charter, and how the authorized public chartering agency involved will reserve the right to revoke or not renew a school's charter based on financial, structural, or operational factors involving the management of the school (Section 4303(f)(1)(C)(i)(II) of the ESEA);
(4) A description of how the autonomy and flexibility granted to a charter school is consistent with the definition of a charter school in section 4310 of the ESEA (Section 4303(f)(1)(C)(i)(III) of the ESEA);
(5) A description of how the eligible applicant will solicit and consider input from parents and other members of the community on the implementation and operation of each charter school that will receive funds under the grant (Section 4303(f)(1)(C)(i)(IV) of the ESEA);
(6) A description of the eligible applicant's planned activities and expenditures of grant funds to support the activities described in section 4303(b)(1) of the ESEA, and how the eligible applicant will maintain financial sustainability after the end of the grant period (Section 4303(f)(1)(C)(i)(V) of the ESEA);
(7) A description of how the eligible applicant will support the use of effective parent, family, and community engagement strategies to operate each charter school that will receive funds under the grant (Section 4303(f)(1)(C)(i)(VI) of the ESEA); and
(8) A description of how the eligible applicant will ensure that each charter school receiving funds under this program has considered and planned for the transportation needs of the school's students (Section 4303(f)(1)(E) of the ESEA).
(b) Describe the educational program that the applicant will implement in the charter school receiving funding under this program, including—
(1) Information on how the program will enable all students to meet the challenging State academic standards;
(2) The grade levels or ages of students who will be served; and
(3) The instructional practices that will be used. (2019 NFP)
(c) Describe how the applicant will ensure that the charter school that will receive funds will recruit, enroll, and retain students, including
(d) Describe the lottery and enrollment procedures that the applicant will use for the charter school if more students apply for admission than can be accommodated and, if the applicant proposes to use a weighted lottery, how the weighted lottery complies with section 4303(c)(3)(A) of the ESEA. (2019 NFP)
(e) Provide a complete logic model (as defined in 34 CFR 77.1) for the grant project. The logic model must include the applicant's objectives for implementing a new charter school or replicating or expanding a high-quality charter school with funding under this competition. (2019 NFP)
(f) Provide a budget narrative, aligned with the activities, target grant project outputs, and outcomes described in the logic model, that outlines how grant funds will be expended to carry out planned activities. (2019 NFP)
(g) If the applicant proposes to open a new charter school (Assistance Listing Number 84.282B) or proposes to replicate or expand a high-quality charter school (Assistance Listing Number 84.282E) that provides a single-sex educational program, demonstrate that the proposed single-sex educational programs are in compliance with the title IX of the Education Amendments of 1972 (20 U.S.C. 1681,
(h) Provide the applicant's most recent available independently audited financial statements prepared in accordance with generally accepted accounting principles. (2019 NFP)
(i) Provide—
(1) A request and justification for waivers of any Federal statutory or regulatory provisions that the eligible entity believes are necessary for the successful operation of the charter school to be opened or to be replicated or expanded; and
(2) A description of any State or local rules, generally applicable to public schools, that will be waived or otherwise not apply to the school that will receive funds. (2019 NFP)
(j) Describe how each school that will receive funds meets the definition of charter school under section 4310(2) of the ESEA. (2019 NFP)
(k) Provide a needs analysis and describe the need for the proposed project, including how the proposed project would serve the interests and meet the needs of students and families in the communities the charter school intends to serve. The needs analysis, which may consist of information and documents previously submitted to an authorized public chartering agency to address need, must include, but is not necessarily limited to, the following—
(1) Descriptions of the local community support, including information that demonstrates interest in, and need for, the charter school; benefits to the community; and other evidence of demand for the charter school that demonstrates a strong likelihood the charter school will achieve and maintain its enrollment projections. Such information may include information on waiting lists for the proposed charter school or existing charter schools or traditional public schools, data on access to seats in high-quality public schools in the districts from which the charter school expects to draw students, or evidence of family interest in specialized instructional approaches proposed to be implemented at the charter school.
(2) Information on the proposed charter school's projected student enrollment, and evidence to support the projected enrollment based on the needs analysis and other relevant data and factors, such as the methodology and calculations used.
(3) An analysis of the proposed charter school's projected student demographics and a description of the demographics of students attending public schools in the local community in which the proposed charter school would be located and the school districts from which students are, or would be, drawn to attend the charter school; a description of how the applicant plans to establish and maintain a racially and socioeconomically diverse student body, including proposed strategies
(i) Why it is unlikely to establish and maintain a racially and socioeconomically diverse student body at the proposed charter school;
(ii) How the anticipated racial and socioeconomic makeup of the student body would promote the purposes of the CSP, including to provide high-quality educational opportunities to underserved students, which may include a specialized educational program or mission; and
(iii) The anticipated impact of the proposed charter school on the racial and socioeconomic diversity of the public schools and school districts from which students would be drawn to attend the charter school.
(4) A robust family and community engagement plan designed to ensure the active participation of families and the community that includes the following—
(i) How families and the community were, are, or will be engaged in determining the vision and design for the charter school, including specific examples of how families' and the community's input was, is, or is expected to be incorporated into the vision and design for the charter school.
(ii) How the charter school will meaningfully engage with both families and the community to create strong and ongoing partnerships.
(iii) How the charter school will foster a collaborative culture that involves the families of all students, including underserved students, in ensuring their ongoing input in school decision-making.
(iv) How the charter school's recruitment, admissions, enrollment, and retention policies and practices will engage and accommodate students and families from diverse backgrounds, including English learners, students with disabilities, and students of color, including holding enrollment and recruitment events on weekends or during nonstandard work hours, making interpreters available, and providing enrollment and recruitment information in widely accessible formats (
(v) How the charter school has engaged or will engage families and the community to develop an instructional model to best serve the targeted student population and their families, including students with disabilities and English learners.
(5) How the plans for the operation of the charter school will support and reflect the needs of students and families in the community, including consideration of district or community assets and how the school's location, or anticipated location if a facility has not been secured, will facilitate access for the targeted student population (
(6) A description of the steps the applicant has taken or will take to ensure that the proposed charter school (1) would not hamper, delay, or negatively affect any desegregation efforts in the local community in which the charter school would be located or in the public school districts from which students are, or would be, drawn to attend the charter school, including efforts to comply with a court order, statutory obligation, or voluntary efforts to create and maintain desegregated public schools; and (2) to ensure that the proposed charter school would not otherwise increase racial or socioeconomic segregation or isolation in the schools from which the students are, or would be, drawn to attend the charter school (2022 NFP);
(l) For any existing or proposed contract with a for-profit management organization (including a nonprofit management organization operated by or on behalf of a for-profit entity), without regard to whether the management organization or its related entities exercise full or substantial administrative control over the charter school or the CSP project, provide the following information or equivalent information that the applicant has submitted to the authorized public chartering agency—
(1) A copy of the existing contract with the for-profit management organization or a description of the terms of the contract, including the name and contact information of the management organization; the cost (
(2) A description of any business or financial relationship between the charter school developer and the management organization, including payments, contract terms, and any property owned, operated, or controlled by the management organization or related individuals or entities that will be used by the charter school;
(3) The name and contact information for each member of the governing board of the charter school and list of the management organization's officers, chief administrator, and other administrators, and any staff involved in approving or executing the management contract; and a description of any actual or perceived conflicts of interest, including financial interests, and how the applicant resolved or will resolve any actual or perceived conflicts of interest to ensure compliance with 2 CFR 200.318(c);
(4) A description of how the applicant will ensure that members of the governing board of the charter school are not selected, removed, controlled, or employed by the management organization and that the charter school's legal, accounting, and auditing services will be procured independently from the management organization);
(5) An explanation of how the applicant will ensure that the management contract is severable, severing the management contract will not cause the proposed charter school to close, the duration of the management contract will not extend beyond the expiration date of the school's charter, and renewal of the management contract will not occur without approval and affirmative action by the governing board of the charter school; and
(6) A description of the steps the applicant will take to ensure that it maintains control over all student records and has a process in place to provide those records to another public school or school district in a timely manner upon the transfer of a student from the charter school to another public school, including due to closure of the charter school, in accordance
(m) Provide—
(1) The name and address of the authorized public chartering agency that issued the applicant's approved charter or, in the case of an applicant that has not yet received an approved charter, the authorized public chartering agency to which the applicant has applied;
(2) A copy of the approved charter or, in the case of an applicant that has not yet received an approved charter, a copy of the charter application that was submitted to the authorized public chartering agency, including the date the application was submitted, and an estimated date by which the authorized public chartering agency will issue its final decision on the charter application;
(3) Documentation that the applicant has provided notice to the authorized public chartering agency that it has applied for a CSP grant; and
(4) A proposed budget, including a detailed description of any post-award planning costs and, for an applicant that does not yet have an approved charter, any planning costs expected to be incurred prior to the date the authorized public chartering agency issues a decision on the charter application. (2022 NFP)
In addition to the preceding application requirements, applicants for grants under Assistance Listing Number 84.282E must—
(a) For each charter school currently operated or managed by the applicant, provide—
(1) Information that demonstrates that the school is treated as a separate school by its authorized public chartering agency and the State, including for purposes of accountability and reporting under title I, part A of the ESEA;
(2) Student assessment results for all students and for each subgroup of students described in section 1111(c)(2) of the ESEA;C
(3) Attendance and student retention rates for the most recently completed school year and, if applicable, the most recent available four-year adjusted cohort graduation rates and extended year adjusted cohort graduation rates; and
(4) Information on any significant compliance and management issues encountered within the last three school years by the existing charter school being operated or managed by the eligible entity, including in the areas of student safety and finance. (2019 NFP)
All applicants for CSP Developer Grants must provide the following assurances. These assurances are from section 4303(f)(2) of the ESEA and the 2022 NFP. The source of each assurance is provided in parentheses following each assurance.
Applicants for funds under this program must provide assurances that—
(a) Each charter school receiving funds through this program will have a high degree of autonomy over budget and operations, including autonomy over personnel decisions (Section 4303(f)(2)(A) of the ESEA);
(b) The eligible applicant will support charter schools in meeting the educational needs of their students, as described in section 4303(f)(1)(A)(x) of the ESEA (Section 4303(f)(2)(B) of the ESEA); and
(c) The eligible applicant will ensure that each charter school receiving funds under this program makes publicly available, consistent with the dissemination requirements of the annual State report card under section 1111(h) of the ESEA, including on the website of the school, information to help parents make informed decisions about the education options available to their children, including—
(i) Information on the educational program;
(ii) Student support services;
(iii) Parent contract requirements (as applicable), including any financial obligations or fees;
(iv) Enrollment criteria (as applicable); and
(v) Annual performance and enrollment data for each of the subgroups of students, as defined in section 1111(c)(2) of the ESEA, except that such disaggregation of performance and enrollment data shall not be required in a case in which the number of students in a group is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student. (Section 4303(f)(2)(G) of the ESEA)
(d) Each applicant must provide an assurance that it has not and will not enter into a contract with a for-profit management organization, including a nonprofit management organization operated by or on behalf of a for-profit entity, under which the management organization or its related entities exercises full or substantial administrative control over the charter school and, thereby, the CSP project. (2022 NFP)
(e) Each applicant must provide an assurance that any management contract between a charter school and a for-profit management organization, including a nonprofit CMO operated by or on behalf of a for-profit entity, guarantees or will guarantee that—
(1) The charter school maintains control over all CSP funds, makes all programmatic decisions, and directly administers or supervises the administration of the grant;
(2) The management organization does not exercise full or substantial administrative control over the charter school (and, thereby, the CSP project), except that this does not limit the ability of a charter school to enter into a contract with a management organization for the provision of services that do not constitute full or substantial control of the charter school project funded under the CSP (
(3) The charter school's governing board has access to financial and other data pertaining to the charter school, the management organization, and any related entities; and
(4) The charter school is in compliance with applicable Federal and State laws and regulations governing conflicts of interest, and there are no actual or perceived conflicts of interest between the charter school and the management organization. (2022 NFP)
(f) Each applicant must provide an assurance that it will post on its website, on an annual basis, a copy of any management contract between the charter school and a for-profit management organization, including a nonprofit management organization operated by or on behalf of a for-profit entity, and report information on such contract to the Department, including—
(1) A copy of the existing contract with the for-profit management organization or description of the terms of the contract, including the name and contact information of the management organization; the cost (
(2) A description of any business or financial relationship between the charter school developer or CMO and the management organization, including payments, contract terms, and any property owned, operated, or controlled by the management organization or related individuals or entities to be used by the charter school;
(3) The names and contact information for each member of the governing boards of the charter school and a list of management organization's officers, chief administrator, and other administrators, and any staff involved in approving or executing the management contract; and a description of any actual or perceived conflicts of interest, including financial interests, and how the applicant resolved or will resolve any actual or perceived conflicts of interest to ensure compliance with 2 CFR 200.318(c); and
(4) A description of how the charter school ensured that such contract is severable and that a change in management companies will not cause the proposed charter school to close. (2022 NFP)
(g) Each applicant must provide an assurance that it will disclose, as part of the enrollment process, any policies and requirements (
(h) Each applicant must provide an assurance that it will hold or participate in a public hearing in the local community in which the proposed charter school would be located to obtain information and feedback regarding the potential benefit of the charter school, which shall at least include how the proposed charter school will increase the availability of high-quality public school options for underserved students, promote racial and socio-economic diversity in such community or have an educational mission to serve primarily underserved students, and not increase racial or socioeconomic segregation or isolation in the school districts from which students would be drawn to attend the charter school (consistent with applicable laws). Applicants must ensure that the hearing (and notice thereof) is accessible to individuals with disabilities and limited English proficient individuals as required by law, actively solicit participation in the hearing (
(i) Each applicant must provide an assurance that it will not use any implementation funds for a charter school until after the charter school has received a charter from an authorized public chartering agency and has a contract, lease, mortgage, or other documentation indicating that it has a facility in which to operate. Consistent with sections 4303(b)(1), 4303(h)(1)(B), and 4310(6) of the ESEA, an eligible applicant may use CSP planning funds for post-award planning and design of the educational program of a proposed new or replicated high-quality charter school that has not yet opened, which may include hiring and compensating teachers, school leaders, and specialized instructional support personnel; providing training and professional development to staff; and other critical planning activities that need to occur prior to the charter school opening when such costs cannot be met from other sources. (2022 NFP)
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
A grant awarded by the Secretary under this competition may be for a period of not more than 5 years, of which the grantee may use not more than 18 months for planning and program design. (Section 4303(d)(1)(B) of the ESEA)
1.
Eligible applicants are developers that have—
(a) Applied to an authorized public chartering authority to operate a charter school; and
(b) Provided adequate and timely notice to that authority. (Section 4310(6) of the ESEA).
Additionally, the charter school must be located in a State with a State statute
As a general matter, the Secretary considers charter schools that have been in operation for more than five years to be past the initial implementation phase and, therefore, ineligible to receive CSP funds under Assistance Listing Number 84.282B to support the opening of a new charter school or under Assistance Listing Number 84.282E for the replication of a high-quality charter school; however, such schools may receive CSP funds under Assistance Listing Number 84.282E for the expansion of a high-quality charter school.
2. a.
b.
c.
d.
3.
4.
For this competition, the maximum limit of grant funds that may be awarded for a new, replicated, or expanded charter school is $2,000,000.
In accordance with 2 CFR 200.404, applicants must ensure that all costs included in the proposed budget are reasonable and necessary in light of the goals and objectives of the proposed project. Any costs determined by the Secretary to be unreasonable or unnecessary will be removed from the final approved budget.
5.
Likewise, a charter school that receives funds under this competition is ineligible to receive funds for the same purpose under section 4303(b)(1) or 4305(b) of the ESEA, including opening and preparing for the operation of a new charter school, opening and preparing for the operation of a replicated high-quality charter school, or expanding a high-quality charter school (
6.
1.
2.
Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
4.
(a) Preparing teachers, school leaders, and specialized instructional support personnel, including through paying costs associated with—
(1) Providing professional development; and
(2) Hiring and compensating, during the eligible applicant's planning period specified in the application for funds, one or more of the following:
(i) Teachers.
(ii) School leaders.
(iii) Specialized instructional support personnel.
(b) Acquiring supplies, training, equipment (including technology), and educational materials (including developing and acquiring instructional materials).
(c) Carrying out necessary renovations to ensure that a new school building complies with applicable statutes and regulations, and minor facilities repairs (excluding construction).
(d) Providing one-time, startup costs associated with providing transportation to students to and from the charter school.
(e) Carrying out community engagement activities, which may include paying the cost of student and staff recruitment.
(f) Providing for other appropriate, non-sustained costs related to the opening of new charter schools, or the replication or expansion of high-quality charter schools, as applicable, when such costs cannot be met from other sources.
A grant awarded by the Secretary under this competition may be for a period of not more than 5 years, of which the grantee may use not more than 18 months for planning and program design. (Section 4303(d)(1)(B) of the ESEA). Applicants may propose to support only one charter school per grant application.
We reference additional regulations outlining funding restrictions in the
5.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the project narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
Applications must be in English, and peer reviewers will only consider supporting documents submitted with the application that are in English.
The recommended page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; any request to waive requirements and the justification; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the project narrative.
6.
1.
In evaluating an application for a CSP Developer Grant, the Secretary considers the following criteria:
(a)
(1)
The Secretary considers the quality of the management plan for the proposed project. In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:
(i) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks (up to 10 points). (34 CFR 75.210(g)(2)(i))
(ii) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project (up to 5 points). (34 CFR 75.210(f)(2)(iv))
(iii) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project (up to 5 points). (34 CFR 75.210(g)(2)(iv))
(iv) The qualifications, including relevant training and experience, of key project personnel (up to 5 points). (34 CFR 75.210(e)(3)(ii))
(v) The adequacy of the applicant's plan to maintain control over all CSP grant funds (up to 5 points). (2022 NFP)
(vi) The adequacy of the applicant's plan to make all programmatic decisions (up to 5 points). (2022 NFP)
(vii) The adequacy of the applicant's plan to administer or supervise the administration of the grant, including maintaining management and oversight responsibilities over the grant (up to 5 points). (2022 NFP)
(2)
In determining the quality of the continuation plan, the Secretary considers the extent to which the eligible applicant is prepared to continue to operate the charter school that would receive grant funds in a manner consistent with the eligible applicant's application once the grant funds under this program are no longer available. (2019 NFP)
(3)
The Secretary considers the quality of the design of the proposed project. In determining the quality of the design of the proposed project, the Secretary considers the following factors:
(i) The extent to which the proposed project demonstrates a rationale (as defined in 34 CFR 77.1(c)) (up to 5 points). (34 CFR 75.210(c)(2)(xxix))
(ii) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable (up to 5 points). (34 CFR 75.210(c)(2)(i))
(4)
The Secretary considers the need for the proposed project. In determining the need for the proposed project, the
(i) The magnitude or severity of the problem to be addressed by the proposed project (up to 15 points). (34 CFR 75.210(a)(2)(i))
(ii) The magnitude of the need for the services to be provided or the activities to be carried out by the proposed project (up to 15 points). (34 CFR 75.210(a)(2)(ii))
(b)
(1)
In determining the quality of the eligible applicant, the Secretary considers the following factors:
(i) The extent to which the academic achievement results (including annual student performance on statewide assessments and annual student attendance and retention rates and where applicable and available, student academic growth, high school graduation rates, postsecondary enrollment and persistence rates, including in college or career training programs, employment rates, earnings and other academic outcomes) for educationally disadvantaged students served by the charter schools operated or managed by the applicant have exceeded the average academic achievement results for such students served by other public schools in the State (up to 5 points). (2019 NFP)
(ii) The extent to which one or more charter schools operated or managed by the applicant have closed; have had a charter revoked due to noncompliance with statutory or regulatory requirements; or have had their affiliation with the applicant revoked or terminated, including through voluntary disaffiliation (up to 5 points). (2019 NFP)
(iii) The extent to which one or more charter schools operated or managed by the applicant have had any significant issues in the area of financial or operational management or student safety, or have otherwise experienced significant problems with statutory or regulatory compliance that could lead to revocation of the school's charter (up to 5 points). (2019 NFP)
(iv) The extent to which the schools operated or managed by the applicant demonstrate strong results on measurable outcomes in non-academic areas such as, but not limited to, parent satisfaction, school climate, student mental health, civic engagement, and crime prevention and reduction (up to 5 points). (2019 NFP)
(2)
The Secretary considers the quality of the management plan for the proposed project. In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:
(i) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks (up to 5 points). (34 CFR 75.210(g)(2)(i))
(ii) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project (up to 5 points). (34 CFR 75.210(f)(2)(iv))
(iii) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project (up to 5 points). (34 CFR 75.210(g)(2)(iv))
(iv) The qualifications, including relevant training and experience, of key project personnel (up to 5 points). (34 CFR 75.210(e)(3)(ii))
(v) The adequacy of the applicant's plan to maintain control over all CSP grant funds (up to 5 points). (2022 NFP)
(vi) The adequacy of the applicant's plan to make all programmatic decisions (up to 5 points). (2022 NFP)
(vii) The adequacy of the applicant's plan to administer or supervise the administration of the grant, including maintaining management and oversight responsibilities over the grant (up to 5 points). (2022 NFP)
(3)
In determining the quality of the continuation plan, the Secretary considers the extent to which the eligible applicant is prepared to continue to operate the charter school that would receive grant funds in a manner consistent with the eligible applicant's application once the grant funds under this program are no longer available. (2019 NFP)
(4)
The Secretary considers the quality of the design of the proposed project. In determining the quality of the design of the proposed project, the Secretary considers the following factors:
(i) The extent to which the proposed project demonstrates a rationale (as defined in 34 CFR 77.1(c)) (up to 5 points). (34 CFR 75.210(c)(2)(xxix))
(ii) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable (up to 5 points). (34 CFR 75.210(c)(2)(i))
(5)
The Secretary considers the need for the proposed project. In determining the need for the proposed project, the Secretary considers one or more of the following factors:
(i) The magnitude or severity of the problem to be addressed by the proposed project (up to 15 points). (34 CFR 75.210(a)(2)(i))
(ii) The magnitude of the need for the services to be provided or the activities to be carried out by the proposed project (up to 10 points). (34 CFR 75.210(a)(2)(ii))
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
5.
(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115—232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
5.
(b)
(1)
(2)
(3)
(4)
All grantees must submit an annual performance report with information that is responsive to these performance measures.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
7.
8.
You may also access documents of the Department published in the
U.S. Department of Education, Accreditation Group, Office of Postsecondary Education.
Call for written third-party comments.
This notice provides information to members of the public on submitting written comments for accrediting agencies currently undergoing review for the purpose of recognition by the U.S. Secretary of Education.
Herman Bounds, Director, Accreditation Group, Office of Postsecondary Education, U.S. Department of Education, 400 Maryland Avenue SW, fifth floor, Washington, DC 20202, telephone: (202) 453-7615, or email:
This request for written third-party comments concerning the performance of accrediting agencies under review by the Secretary of Education is required by section 496(n)(1)(A) of the Higher Education Act (HEA) of 1965, as amended, and pertains to the summer 2025 meeting of the National Advisory Committee on Institutional Quality and Integrity (NACIQI). The meeting date and location have not been determined but will be announced in a later
1. Accreditation Commission for Midwifery Education. Scope of Recognition: The accreditation and pre-accreditation of basic certificate, basic graduate nurse-midwifery, direct entry midwifery, and pre-certification nurse-midwifery education programs, including those programs that offer distance education. Geographic area of accrediting activities: The United States. The compliance report includes findings of noncompliance with certain criteria in 34 Code of Federal Regulations (CFR) Part 602 identified in the May 31, 2023, letter from the Senior Department Official (SDO) following the February 28, 2023, NACIQI meeting. The SDO letter is available under NACIQI meeting date 2/28/2023, at
2. American Physical Therapy Association, Commission on Accreditation in Physical Therapy. Scope of Recognition: The accreditation and preaccreditation (“Candidate for Accreditation”) in the United States of physical therapist education programs leading to the first professional degree at the master's or doctoral level and physical therapist assistant education programs at the associate degree level and for its accreditation of such programs offered via distance education. Geographic area of accrediting activities: The United States. The compliance report includes findings of noncompliance with certain criteria in 34 CFR part 602 identified in the May 31, 2023, letter from the SDO following the February 28, 2023, NACIQI meeting. The SDO letter is available under NACIQI meeting date 2/28/2023, at
3. Middle States Commission on Higher Education. Scope of Recognition: The accreditation and preaccreditation (“Candidacy status”) of institutions of higher education including distance, correspondence education programs and direct assessment programs offered at those institutions. Recognition extends to the Executive Committee to act on behalf of the Commission as necessary on cases of initial, reaffirmed, and continued candidacy or initial, reaffirmed and continued accreditation. Geographic Area of Accrediting Activities: The United States. The compliance report includes findings of noncompliance with certain criteria in 34 CFR part 602 identified in the May 31, 2023, letter from the SDO following the February 28, 2023 NACIQI meeting. The SDO letter is available under NACIQI meeting date 2/28/2023, at
4. New England Commission of Higher Education. Scope of Recognition: The accreditation and pre-accreditation (“Candidacy status”) of institutions of higher education including the accreditation of programs offered via distance education and direct assessment within those institutions. Jointly with the Commission, this recognition extends to its Executive Committee and also to the Appeals Body for decisions related to the appeal of denial or withdrawal of candidacy; probation; and denial or withdrawal of accreditation. Geographic Area of Accrediting Activities: The United States. The compliance report includes findings of noncompliance with certain criteria in 34 CFR part 602 identified in the May 31, 2023, letter from the SDO following the February 28, 2023, NACIQI meeting. The SDO letter is available under NACIQI meeting date 2/28/2023, at
5. Western Association of Schools and Colleges. Scope of Recognition: The accreditation and preaccreditation (“Candidate for Accreditation”) of institutions of higher education that offer the baccalaureate degree or above, including distance education programs offered at those institutions. Geographic area of accrediting activities: The United States. The compliance report includes findings of noncompliance with certain criteria in 34 CFR part 602 identified in the May 31, 2023, letter from the SDO following the February 28, 2023, NACIQI meeting. The SDO letter is available under NACIQI meeting date 2/28/2023, at
Written comments about the recognition of any of the accrediting agencies listed above must be received by May 20, 2024, in the
Only written materials submitted by the deadline to the email address listed in this notice, and in accordance with these instructions, become part of the official record concerning agencies scheduled for review and are considered by the Department and NACIQI in their deliberations. Written comments about the specific agencies identified in this
Office of Elementary and Secondary Education, Department of Education.
Notice.
The Department of Education is issuing a notice inviting applications for fiscal year (FY) 2024 for CSP Grants to State Entities, Assistance Listing Number (ALN) number 84.282A. This notice relates to the approved information collection under OMB control number 1810-0767.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Adrienne Hawkins, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5970. Telephone: (202) 453-5638. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
The CSP State Entity program provides financial assistance to
“Raise the Bar: Lead the World” (RTB) is the Department's call to action to all stakeholders to transform pre-kindergarten through postsecondary education and unite around evidence-based strategies that advance educational equity and excellence for all students.
Further, on July 6, 2022 (87 FR 40406), the Department published in the
This priority is:
To meet this priority, the
An applicant must identify in the abstract form and in the project narrative section of its application the priority or priorities it wishes the Department to consider for purposes of earning competitive preference priority points. The Department will not review or award points for any competitive preference priority that an applicant fails to clearly identify as a competitive preference priority or priorities it wishes the Department to consider for purposes of earning competitive preference priority points. An application may receive a total of up to 10 additional points under the competitive preference priorities.
These priorities are:
To meet this priority, the
(a) Allows at least one entity that is not a local educational agency (LEA) to be an
(b) In the case of a
To be eligible to receive points under this priority, the
To be eligible to receive points under this priority, the
To be eligible to receive points under this priority, the
(a) Funding for facilities.
(b) Assistance with facilities acquisition.
(c) Access to public facilities.
(d) The ability to share in bonds or mill levies.
(e) The right of first refusal to purchase public school buildings.
(f) Low- or no-cost leasing privileges.
To be eligible to receive points under this priority, the
This priority is:
(a) The Secretary is interested in funding applications that propose to encourage, but not require,
(1) Co-developed or shared curricular and instructional resources or academic course offerings.
(2) Professional development opportunities for teachers and other
(3) Evidence-based (as defined in section 8101(21) of the ESEA) practices to improve academic performance for underserved students.
(4) Policies and practices to create safe, supportive, and inclusive learning environments, such as systems of positive behavioral intervention and support.
(5) Transparent enrollment and retention practices and processes that include clear and consistent disclosure to families of policies or requirements (
(6) A shared transportation plan and system that reduces transportation costs for members of the collaboration and takes into consideration various transportation options, including public transportation and district-provided or shared transportation options, cost-sharing or free or reduced-cost fare options, and any distance considerations for prioritized bus services.
(7) A shared special education collaborative designed to address a significant barrier or challenge faced by participating
(8) A shared English learner collaborative designed to address a significant barrier or challenge faced by participating
(9) Other collaborations, such as the sharing of innovative and best practices, designed to address a significant barrier or challenge faced by participating charter schools or traditional public schools and designed to improve academic outcomes for all students served by members of the collaboration.
(b) The
(1) Provide in its subgrant application a description of the collaboration that—
(i) Describes each member of the collaboration and whether the collaboration would be a new or existing commitment;
(ii) States the purpose and duration of the collaboration;
(iii) Describes the anticipated roles and responsibilities of each member of the collaboration;
(iv) Describes how the collaboration will benefit one or more members of the collaboration, including how it will benefit students or families affiliated with a member and lead to increased or improved educational opportunities for students, and meet specific and measurable, if applicable, goals;
(vi) Describes the resources members of the collaboration will contribute; and
(vii) Contains any other relevant information; and
(2) Within 120 days of receiving a subgrant award or within 120 days of the date the collaboration is scheduled to begin, whichever is later, provide evidence of participation in the collaboration (which may include, but is not required to include, a memorandum of understanding).
The following application requirements are from section 4303(f) of the ESEA (20 U.S.C. 7221b(f)) and from the 2022 NFP. The Department will not fund an application that does not meet each application requirement.
In addressing the following application requirements, applicants must clearly identify which application requirement they are addressing. An applicant must address application requirements (a)(1)(i), (a)(1)(vii), (a)(1)(ix), (a)(2)(ii), and (a)(2)(iii) in its response to paragraph (a)(1) of the Quality of the Project Design selection criterion; application requirement (a)(8) in its response to paragraph (a)(4) of the Quality of the Project Design selection criterion; application requirements
Applications for funding under the CSP State Entity program must contain the following:
(a) Description of Program—A description of the
(1) A description of how the
(i) Support the opening of
(ii) Inform eligible
(iii) Work with
(A) Participate in the Federal programs in which the schools and students are eligible to participate;
(B) Receive the commensurate share of Federal funds the schools and students are eligible to receive under such programs; and
(C) Meet the needs of students served under such programs, including students with disabilities and English learners (4303(f));
(iv) Ensure that
(v) In the case of a
(A) Work with the SEA and
(B) Work with the SEA to operate the
(vi) Ensure that each
(A) Is using funds provided under this program for one of the activities described in section 4303(b)(1) of the ESEA; and
(B) Is prepared to continue to operate
(vii) Support—
(A)
(B) The use of
(viii) Work with
(A) Recruitment and enrollment practices to promote inclusion of all students, including by eliminating any barriers to enrollment for
(B) Supporting all students once they are enrolled to promote retention, including by reducing the overuse of discipline practices that remove students from the classroom (4303(f));
(ix) Share best and promising practices between
(x) Ensure that
(xi) Support efforts to increase
(xii)(A) In the case of a
(B) In the case of a
(xiii) Work with
(2) A description of the extent to which the
(i) Is able to meet and carry out Competitive Preference Priorities 1 through 5;
(ii) Is working to develop or strengthen a cohesive statewide system to support the opening of new
(iii) Is working to develop or strengthen a cohesive strategy to encourage collaboration between
(3) A description of how the
(i) A detailed description of how the
(
(
(
(
(
(
(ii) A description of the application each
(A) A description of the roles and responsibilities of
(
(
(
(
(
(
(
(B) A description of the quality controls agreed to between the
(C) A description of how the autonomy and flexibility granted to a
(D) A description of how the
(E) A description of the
(F) A description of how the
(G) A needs analysis and description of the need for the proposed project, including how the proposed project would serve the interests and meet the needs of students and families in the communities the
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(iii)(A) A description of how the
(
(
(
(B) In its application, an eligible applicant must provide a high-quality plan that demonstrates how its proposed project would meet the requirements in paragraph (G)(6)(iii)(A)(1) of these application requirements, accompanied by a timeline for key milestones that span the course of planning, development, and implementation of the
(iv) In the case of a
(v) A description of how the
(vi) A description of how the
(vii) A description of how the
(viii) Evidence to support the requested funds and projected enrollment, such as explanations regarding the methodology and calculations (2022 NFP); and
(iX) A description, including a timeline, of how the
(A) How subgrantees will be selected for in-depth monitoring, including factors that indicate higher risk (
(B) How identified subgrantee risk will be addressed;
(C) How subgrantee expenditures will be monitored;
(D) How monitors will be trained;
(E) How monitoring findings will be shared with subgrantees;
(F) How corrective action plans will be used to resolve monitoring findings;
(G) How the
(H) How the
(b) Assurances—Assurances by the
(1) Each
(2) The
(3) The
(4) The
(5) The
(i) Assessing annual performance data of the schools, including, as appropriate, graduation rates, student academic growth, and rates of student attrition;
(ii) Reviewing the schools' independent, annual audits of financial statements prepared in accordance with generally accepted accounting principles and ensuring that any such audits are publicly reported; and
(iii) Holding
(6) The
(7) The
(i) Information on the educational program;
(ii) Student support services;
(iii) Parent contract requirements (as applicable), including any financial obligations or fees;
(iv) Enrollment criteria (as applicable); and
(v) Annual performance and enrollment data for each of the subgroups of students, as defined in section 1111(c)(2) of the ESEA, except that such disaggregation of performance and enrollment data shall not be required in a case in which the number of students in a group is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student (4303(f)).
(8) The State Entity will ensure that each
(9) Each
(i) The
(ii) The management organization does not exercise full or substantial administrative control over the
(iii) The
(iv) The
(10) Each
(i) A copy of the existing contract with the for-profit organization or a detailed description of the terms of the contract, including the name and contact information of the management organization, the cost (
(ii) A description of any business or financial relationship between the
(iii) The names and contact information for each member of the governing boards of the
(iv) A description of how the
(11) Each
(12) Each
(13) No
(14) Within 120 days of the date of any subgrant award notifications, the grantee will post on its website:
(i) A list of the
(A) The name, address, and grades served.
(B) A description of the education model.
(C) If the
(D) The award amount, including any funding that has been approved for the current year and any additional years of the CSP grant for which the school will receive support.
(E) The grant or subgrant application (redacted as necessary).
(F) The peer review materials, including reviewer comments and scores (redacted as necessary) from the subgrant competition (2022 NFP).
(c) Waivers—Requests for information about waivers, including—
(1) A request and justification for waivers of any Federal statutory or regulatory provisions that the
(2) A description of any
The following definitions are from sections 4303(a), 4310, and 8101 of the ESEA (20 U.S.C. 7221b(a), 7221i, and 7801); 34 CFR 77.1; and the 2022 NFP.
(1) In accordance with a specific
(2) Is created by a
(3) Operates in pursuit of a specific set of educational objectives determined by the school's
(4) Provides a program of elementary or secondary education, or both;
(5) Is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;
(6) Does not charge tuition;
(7) Complies with the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 (42 U.S.C. 12101
(8) Is a school to which parents choose to send their children, and that—
(i) Admits students on the basis of a lottery, consistent with section 4303(c)(3)(A) of the ESEA, if more students apply for admission than can be accommodated; or
(ii) In the case of a school that has an affiliated
(9) Agrees to comply with the same Federal and
(10) Meets all applicable Federal,
(11) Operates in accordance with
(12) Has a written performance contract with the
(13) May serve students in
(1) Assistance to
(2) Technical assistance to operating
(1) A child (i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.
(2) For a child aged 3 through 9 (or any subset of that age range, including ages 3 through 5), may, at the discretion of the
(1) Human assets, including capacities, skills, knowledge base, and abilities of individuals within a community; and
(2) Social assets, including networks, organizations, businesses, and institutions that exist among and within groups and communities (2022 NFP).
(1) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831
(2) A
(3) A program that (i) serves children from birth through age 6 that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and (ii) is (A) a
(1) Applied to an authorized public chartering authority to operate a
(2) Provided adequate and timely notice to that authority (section 4310(6) of the ESEA).
(1) Who is aged 3 through 21;
(2) Who is enrolled or preparing to enroll in an elementary school or secondary school;
(3)(i) Who was not born in the United States or whose native language is a language other than English;
(ii)(A) Who is a Native American or Alaska Native, or a native resident of the outlying areas; and
(B) Who comes from an environment where a language other than English has had a significant impact on the individual's level of English language proficiency; or
(iii) Who is migratory, whose native language is a language other than English, and who comes from an environment where a language other than English is dominant; and
(4) Whose difficulties in speaking, reading, writing, or understanding the English language may be sufficient to deny the individual—
(i) The ability to meet the challenging
(ii) The ability to successfully achieve in classrooms where the language of instruction is English; or
(iii) The opportunity to participate fully in society (section 8101(20) of the ESEA).
(1) Shows evidence of strong academic results, which may include strong student academic growth, as determined by a
(2) Has no significant issues in the areas of student safety, financial and operational management, or statutory or regulatory compliance;
(3) Has demonstrated success in significantly increasing student academic achievement, including graduation rates where applicable, for all students served by the
(4) Has demonstrated success in increasing student academic achievement, including graduation rates where applicable, for each of the subgroups of students, as defined in section 1111(c)(2) of the ESEA, except that such demonstration is not required in a case in which the number of students in a group is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student (section 4310(8) of the ESEA).
(1) A
(2) A
(3) A Governor of a
(4) A
(1) A student who is living in poverty or is served by schools with high concentrations of students living in poverty.
(2) A student of color.
(3) A student who is a member of a federally recognized Indian Tribe.
(4) An English learner (as defined in section 8101 of the ESEA).
(5) A child or student with a disability (as defined in section 8101 of the ESEA).
(6) A
(7) A migrant student.
(8) A student experiencing homelessness or housing insecurity.
(9) A student who is in foster care.
(10) A pregnant, parenting, or caregiving student.
(11) A student impacted by the justice system, including a formerly incarcerated student.
(12) A student performing significantly below grade level (2022 NFP).
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
1.
Under section 4303(e)(1) of the ESEA, no
Consistent with section 4303(e)(1), if a
2.a.
b.
c.
3.
(b) Under section 4303(d)(2) of the ESEA, when awarding subgrants to
4.
For this competition, the maximum amount of subgrant funds a State Entity may award to a subgrantee per new
(b)
(ii) A non-Federal entity that expends less than $750,000 during the non-Federal entity's fiscal year in Federal awards is exempt from Federal audit requirements for that year, except as noted in 2 CFR 200.503 (Relation to other audit requirements), but records must be available for review or audit by appropriate officials of the Federal agency, pass-through entity, and Government Accountability Office. (2 CFR 200.501(d)).
1.
2.
Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information, please see 34 CFR 5.11(c).
3.
4.
A subgrant awarded by a
Likewise, a
(a) Open and prepare for the operation of new
(b) Open and prepare for the operation of replicated
(c) Expand
Under section 4303(h) of the ESEA, an
(a) Preparing teachers, school leaders, and specialized instructional support personnel, including through paying costs associated with—
(i) Providing professional development; and
(ii) Hiring and compensating, during the
(A) Teachers.
(B) School leaders.
(C) Specialized instructional support personnel.
(b) Acquiring supplies, training, equipment (including technology), and educational materials (including developing and acquiring instructional materials).
(c) Carrying out necessary renovations to ensure that a new school building complies with applicable statutes and regulations, and minor facilities repairs (excluding construction).
(d) Providing one-time, startup costs associated with providing transportation to students to and from the
(e) Carrying out community engagement activities, which may include paying the cost of student and staff recruitment.
(f) Providing for other appropriate, non-sustained costs related to opening, replicating, or expanding
(a) Are distributed throughout different areas, including urban, suburban, and rural areas; and
(b) Will assist
We reference additional regulations outlining funding restrictions in the
5.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
Applications must be in English, and peer reviewers will only consider supporting documents submitted with the application that are in English.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the application narrative.
6.
For further information about the pre-application meeting, contact Adrienne Hawkins, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5970. Telephone: (202) 453-4538. Email:
1.
(a)
(1) The extent to which the proposed project
(2) The extent to which the methods of evaluation include the use of objective
(3) The
(4) The extent to which the projected number of subgrant awards for each grant project year is supported by evidence of demand and need, and the extent to which the proposed average subgrant award amount is supported by evidence of the need of applicants (2022 NFP) (up to 20 points).
(b)
(c)
(1) Adequately monitor the
(2) Work with the
(3) Provide technical assistance and support for—
(i) The
(ii) Quality authorizing efforts in the State (section 4303(g)(1)(D)(iii) of ESEA (20 U.S.C. 7221b(g)(1)(D)(iii))) (up to 10 points);
(4) The
(5) The degree of flexibility afforded by the State's
(d)
(1) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks (34 CFR 75.210(g)(2)(i)) (up to 10 points);
(2) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project (34 CFR 75.210(g)(2)(ii)) (up to 3 points); and
(3) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project (34 CFR 75.210(g)(2)(iv)) (up to 2 points).
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
5.
(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118, including a description of the
(c) In accordance with section 4303(i) of the ESEA, each
(1) The number of students served by each subgrant awarded under this section and, if applicable, the number of new students served during each year of the period of the subgrant.
(2) A description of how the
(A) How the
(B) If known, the extent to which such practices were adopted and implemented by such other public schools.
(3) The number and amount of subgrants awarded under this program to carry out activities described in section 4303(b)(1)(A) through (C) of the ESEA.
(4) A description of—
(A) How the
(B) How the
(d) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection, analysis, and reporting. In this case, the Secretary establishes a data collection period.
5.
(b)
(1)
(2)
(3)
(4)
All grantees must submit an annual performance report with information that is responsive to these
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
7.
8. Technical Assistance: Applicants approved for funding under this competition will be required to participate in all general and certain specified technical assistance offerings, to include but not limited to, project directors' meetings and other on-site gatherings sponsored by the Department and its contracted technical assistance
You may also access documents of the Department published in the
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before June 24, 2024.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, (202) 377-4018.
The Department, in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Department is soliciting comments on the proposed information collection request (ICR) that is described below. The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
An institution may use the form to assign one or more loans to the Department at any time throughout the year. Some conditions under which an institution could utilize the assignment form include defaulted loans, total permanent disability discharges, voluntary withdrawal from the program, termination from the program, closure of the institution and liquidation of its Perkins Loan portfolio.
The Department is requesting an extension of the currently approved collection. There has been no change to the form. There has been a change in the number of respondents, responses, and burden hours.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice; withdrawal.
The U.S. Department of Education (Department) withdraws the notice inviting applications (NIA) and cancels the competition for fiscal year (FY) 2024 for the Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities—National Center on Rigorous Comprehensive Education for Students with Disabilities competition, Assistance Listing Number 84.326C.
The NIA published in the
David Emenheiser, U.S. Department of Education, 400 Maryland Avenue SW, Room 4A10, Washington, DC 20202. Telephone: (202) 987-0124. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
On February 22, 2024, the Department published in the
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for new awards for fiscal year (FY) 2024 for the Graduate Assistance in Areas of National Need (GAANN) Program, Assistance Listing Number 84.200A. This notice relates to the approved information collection under OMB control number 1840-0604.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Rebecca Ell, U.S. Department of Education, 400 Maryland Avenue SW, 5th Floor, Washington, DC 20202-4260. Telephone: (202) 453-6348. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
The absolute priority is:
A project must provide fellowships in one or more of the following areas of national need.
For the following academic areas, the project must provide fellowships for programs that lead either to a master's degree or a doctoral degree, whichever is the highest degree awarded in the area of need at the institution.
These priorities are:
Under this priority, an applicant must demonstrate that the applicant does not, as of the deadline date for submission of applications, have an active grant, including through membership in a group application submitted in accordance with 34 CFR 75.127-75.129, under the GAANN program.
Under this priority, an applicant must demonstrate that the project will be implemented by one or more of the following entities:
(1) Historically Black colleges and universities (as defined in this notice).
(2) Tribal Colleges and Universities (as defined in this notice).
(3) Minority-serving institutions (as defined in this notice).
This priority is:
Projects should include plans to identify, recruit, and retain students who are low-income.
For purpose of this priority, the term “low-income student” means a student who would otherwise be eligible to receive a Maximum Pell Grant for the award year in which the determination is made, except that the student is enrolled in graduate study. See criteria for Maximum Pell Grant eligibility in the Student Aid Index (SAI) and Pell
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
1. Eligible Applicants:
(a) Any academic department of an IHE that provides a course of study that—(i) Leads to a graduate degree in an area of national need; and (ii) Has been in existence for at least four years at the time of an application for a grant under this competition.
(b) Eligible applicants may apply alone or in partnership with one or more eligible nondegree granting institutions that have formal arrangements for the support of doctoral dissertation research.
2a.
b.
(See 34 CFR 648.20(b)(5).)
c.
1.
2.
• A project narrative in a single discipline or for an interdisciplinary course of study should be limited to no more than 40 pages.
• A project narrative for a multidisciplinary project should be limited to no more than 40 pages for each academic department.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
• Limit appendices to the following: two-page version of a curriculum vitae, per faculty member; a course listing; letters of commitment showing institutional support; a bibliography; and one additional optional appendix relevant to the support of the proposal, recommended not to exceed five pages.
The recommended page limit does not apply to the cover sheet (Application for Federal Assistance (SF 424) and the Department of Education Supplemental Information for the SF 424 form, the one-page abstract; the GAANN Statutory Assurances Form; the GAANN Budget Spreadsheet(s) Form; the Appendices; the Assurances and Certifications; or an optional two-page table of content. However, the recommended page limit does apply to all of the application narrative.
(a)
(1) The applicant's general and specific objectives for the project are realistic and measurable;
(2) The applicant's objectives for the project seek to sustain and enhance the capacity for teaching and research at the institution and at State, regional, or national levels;
(3) The applicant's objectives seek to institute policies and procedures to ensure the enrollment of talented graduate students from traditionally underrepresented backgrounds; and
(4) The applicant's objectives seek to institute policies and procedures to ensure that it will award fellowships to individuals who satisfy the requirements of 34 CFR 648.40.
(b)
(1) How the applicant identified the problems that form the specific needs of the project;
(2) The specific problems to be resolved by successful realization of the goals and objectives of the project; and
(3) How increasing the number of fellowships will meet the specific and general objectives of the project.
(c)
(1) The course offerings and academic requirements for the graduate program;
(2) The qualifications of the faculty, including education, research interest, publications, teaching ability, and accessibility to graduate students;
(3) The focus and capacity for research; and
(4) Any other evidence the applicant deems appropriate to demonstrate the quality of its academic program.
(d)
(1) Provides each fellow with the required supervised training in instruction;
(2) Provides adequate instruction on effective teaching techniques;
(3) Provides extensive supervision of each fellow's teaching performance; and
(4) Provides adequate and appropriate evaluation of the fellow's teaching performance.
(e)
(1) How the applicant plans to identify, recruit, and retain students from traditionally underrepresented backgrounds in the academic program for which fellowships are sought;
(2) How the applicant plans to identify eligible students for fellowships;
(3) The past success of the academic department in enrolling talented graduate students from traditionally underrepresented backgrounds; and
(4) The past success of the academic department in enrolling talented graduate students for its academic program.
(f)
(1) How the applicant will select fellows, including how the applicant will ensure that project participants who are otherwise eligible to participate are selected without regard to race, color, national origin, religion, gender, age, or disabling condition;
(2) How the applicant proposes to monitor whether a fellow is making satisfactory progress toward the degree for which the fellowship has been awarded;
(3) How the applicant proposes to identify and meet the academic needs of fellows;
(4) How the applicant proposes to maintain enrollment of graduate students from traditionally underrepresented backgrounds; and
(5) The extent to which the policies and procedures the applicant proposes to institute for administering the project are likely to ensure efficient and effective project implementation, including assistance to and oversight of the project director.
(g)
(1) The applicant will provide, from any funds available to it, sufficient funds to support the financial needs of the fellows if the funds made available under the program are insufficient;
(2) The institution's social and academic environment is supportive of the academic success of students from traditionally underrepresented backgrounds on the applicant's campus;
(3) Students receiving fellowships under this program will receive stipend support for the time necessary to complete their courses of study, but in no case longer than five years; and
(4) The applicant demonstrates a financial commitment, including the nature and amount of the institutional matching contribution, and other institutional commitments that are likely to ensure the continuation of project activities for a significant period of time following the period in which the project receives Federal financial assistance.
(h)
(1) The qualifications of the project director;
(2) The qualifications of other key personnel to be used in the project;
(3) The time commitment of key personnel, including the project director, to the project; and
(4) How the applicant, as part of its nondiscriminatory employment practices, will ensure that its personnel are selected without regard to race, color, national origin, religion, gender, age, or disabling condition, except pursuant to a lawful affirmative action plan.
(i)
(1) The applicant shows a clear understanding of the acceptable uses of program funds; and
(2) The costs of the project are reasonable in relation to the objectives of the project.
(j)
(1) Relate to the specific goals and measurable objectives of the project;
(2) Assess the effect of the project on the students receiving fellowships under this program, including the effect on persons of different racial and ethnic backgrounds, genders, and ages, and on persons with disabilities who are served by the project;
(3) List both process and product evaluation questions for each project activity and outcome, including those of the management plan;
(4) Describe both the process and product evaluation measures for each project activity and outcome;
(5) Describe the data collection procedures, instruments, and schedules for effective data collection;
(6) Describe how the applicant will analyze and report the data so that it can make adjustments and improvements on a regular basis; and
(7) Include a time-line chart that relates key evaluation processes and benchmarks to other project component processes and benchmarks.
(k)
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
For this competition, a panel of non-Federal reviewers will review each application in accordance with the selection criteria in 34 CFR 648.31. The individual scores of the reviewers will be added and the sum divided by the number of reviewers to determine the peer review score received in the review process. Additional factors we consider in selecting an application for an award are in 34 CFR 648.32.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Grantees will be required to submit a supplement to the Final Performance Report two years after the expiration of their GAANN grant. The purpose of this supplement is to identify and report the educational and employment outcome of each GAANN fellow.
5.
(1) The percentage of GAANN fellows completing the terminal degree in the designated areas of national need.
(2) The median time to completion of master's and doctoral degrees for GAANN fellows.
(3) The percentage of GAANN fellows who have placements in faculty or professional positions in the area of their studies within one year of completing the degree.
(4) The cost per successful outcome, where success is defined as terminal program graduate completion.
If funded, you will be required to collect and report data in your project's annual performance report (34 CFR 75.590) on those measures and steps taken toward improving performance toward those outcomes. Consequently, applicants are advised to include these outcome measures in conceptualizing the design, implementation, and evaluation of their proposed projects. These outcome measures should be included in the project evaluation plan, in addition to measures of your progress toward the goals and objectives specific to your project.
All grantees will be expected to submit an annual performance report documenting their success in addressing these performance measures.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Take notice that on April 17, 2024, MidAmerican Central California Transco, LLC submitted a request for a limited waiver of the Federal Energy Regulatory Commission's (Commission) requirement of the preparation and independent audit of the 2023 FERC Form No. 1 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
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
To file via USPS: Debbie-Anne A. Reese, Acting Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
To file via any other courier: Debbie-Anne A. Reese, Acting Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
a. On October 20, 2023, Ocean Renewable Power Company, Inc., filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Buffalo-Niagara Hydrokinetic Project No. 15329 (project), to be located on the Niagara River in the City of Buffalo, Erie County, New York. 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.
b.
c.
d.
e. The preliminary permit application has been accepted for filing.
f. 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, June 17, 2024.
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
g. The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595 or
h. More information about this project, including a copy of the application, can be viewed on the Commission's website (
On November 23, 2021, the Alabama Power Company filed an application for a new major license for the 135-megawatt R.L. Harris Hydroelectric Project No. 2628 (Harris Project or project). On March 31, 2023, Commission staff issued a notice of intent to prepare an Environmental Impact Statement (EIS) to evaluate the effects of relicensing the Harris Project. The notice of intent included a schedule for preparing a draft and final EIS.
By this notice, Commission staff is updating the procedural schedule for completing the EIS. The revised schedule is shown below. Further revisions to the schedule may be made as appropriate.
Any questions
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, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) 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:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following Complaints and Compliance filings in EL Dockets:
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, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Federal Energy Regulatory Commission, Department of Energy.
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-921, OMB Control No. 1902-0257, Ongoing Electronic Delivery of Data from Regional Transmission Organization and Independent System Operators.
Comments on the collection of information are due June 24, 2024.
You may submit comments (identified by Docket No. IC24-14-000) by either of the following methods:
Electronic filing through
•
• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery:
○
○
Jean Sonneman may be reached by email at
While the ongoing delivery of data under FERC-921 is continuous and routine, each RTO or ISO makes sporadic changes to its individual market with Commission approval. When those changes occur, the RTO or ISO may need to change the data being routinely sent to the Commission to ensure compliance with Order No. 760. Such changes typically require respondents to alter the ongoing delivery of data under FERC-921.
The total hourly cost applied in this calculation is $88.03, calculated as the sum of weighted mean hourly wages and benefits of the following occupations:
• Computer Systems Analysts (Occupational Code: 15-1211): $56.57 (base hourly wage) ÷ 70.7% (benefits) = $80.01 × 75 percent of the time needed for each response = $60.0075;
• Legal (Occupational Code: 23-0000): $104.10 (base hourly wage) ÷ 70.7% (benefits) = $147.24 × 12.5 percent of the time needed for each response = $18.405; and
• Database Administrators (Occupational Code: 15-1242): $54.40 (base hourly wage) ÷ 70.7% (benefits) = $76.94 × 12.5 percent of the time needed for each response = $9.6175.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Air Emission Standards for Tanks, Surface Impoundments and Containers (EPA ICR Number 1593.12, OMB Control Number 2060-0318) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through April 30, 2024. Public comments were previously requested via the
Comments may be submitted on or before May 24, 2024.
Submit your comments, referencing Docket ID No. EPA-HQ-OLEM-2023-0584, to EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Peggy Vyas, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-0453;
This is a proposed extension of the ICR, which is currently approved through April 30, 2024. 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.
Public comments were previously requested via the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), RCRA Section 3007 Survey for Drum Reconditioning Facilities (EPA ICR Number 2800.01, OMB Control Number 2050-NEW), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a request for approval of a new collection. This notice allows for 60 days for public comments.
Comments must be submitted on or before June 24, 2024.
Submit your comments, referencing Docket ID Number EPA-HQ-OLEM-2023-0573, to EPA online using
Patrick Wise, Office of Resource Conservation and Recovery, Materials Recovery and Waste Management Division (MC 5303P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-0520; email address:
This is a request for approval of a new collection. 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.
This notice allows 60 days for public comments. Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through
Environmental Protection Agency (EPA).
Notice of workshop.
The Center for Public Health and Environmental Assessment (CPHEA) within U.S. EPA's Office of Research and Development is announcing a workshop entitled “Workshop to Discuss Policy-Relevant Science to Inform EPA's Integrated Plan for the Review of the Ozone National Ambient Air Quality Standards”. This workshop is being organized by CPHEA and the Office of Air Quality Planning and Standards within U.S. EPA's Office of Air and Radiation. This will be a four-day virtual workshop and will be open to the public through a public event registration website.
The workshop will be held on May 13 through May 16, 2024. Start and end times will vary each day and range from 9:50 a.m. to 4:30 p.m. EST. Registrants will have access to the workshop agenda once they register.
This is a virtual workshop. An EPA contractor, ICF International, is providing logistical support for the workshop. To register, please visit the website:
For technical information, contact Qingyu Meng (919-541-2563 or
Section 108(a) of the Clean Air Act (CAA) directs the Administrator to identify and to list certain air pollutants and then to issue “air quality criteria” for those pollutants. These air quality criteria are to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air. . . .” Under section 109 of the CAA, EPA is then to establish National Ambient Air Quality Standards (NAAQS) for each pollutant for which EPA has issued criteria. Section 109(d)(1) of the CAA additionally requires periodic review and, if appropriate, revision of existing air quality criteria to reflect advances in scientific knowledge on the effects of the pollutant on public health and welfare. EPA is also to periodically review and, if appropriate, revise the NAAQS, based on the revised air quality criteria.
Photochemical oxidants, including ozone, are one of six “criteria” pollutants for which EPA has established NAAQS, and ozone is the current indicator for that NAAQS. In its periodic review of the air quality criteria for these pollutants, EPA reviews the currently available science and prepares an Integrated Science Assessment (ISA). The evidence assessed and conclusions presented in the ISA directly inform the technical and policy assessments. Collectively, the ISA and any technical and policy assessments developed from the scientific and technical bases for the Administrator's decisions on the adequacy of existing NAAQS and the appropriateness of possible alternative standards.
On August 25, 2023, EPA released the Call for Information on the Integrated Science Assessment for Ozone and Related Photochemical Oxidants to announce the development of the Ozone ISA (88 FR 58264). The Notice of Workshop also seeks information from the public regarding the design and scope of the review of the air quality criteria to ensure that this review addresses key policy-relevant issues and considers the new science relevant to informing our understanding of these issues. The Clean Air Scientific Advisory Committee (CASAC), part of EPA's Science Advisory Board (SAB) whose review and advisory functions are mandated by section 109(d)(2) of the Clean Air Act, is charged with independent scientific review of the air quality criteria among other responsibilities. In conjunction with the
As part of this review of the ozone NAAQS, EPA intends to sponsor a four-day workshop from May 13 through May 16, 2024, to provide the opportunity for internal and external experts to highlight significant new and emerging research on ozone and related photochemical oxidants. Experts will be asked to discuss how new evidence can best be used to build upon the analyses and scientific evidence that supported decisions made in the last review of the ozone NAAQS and to make recommendations to the Agency regarding the design and scope of the review for the primary (health-based) and secondary (welfare-based) ozone standards to ensure that it addresses key policy-relevant issues and considers the new and emerging science that is relevant to informing EPA's understanding of these issues. EPA intends that workshop discussions will build upon four prior publications by the Agency:
1.
2.
3. The final
4. The draft document titled,
Workshop participants are encouraged to review these documents thoroughly before the meeting, as they provide important background information on the scientific findings and analytical approaches considered in the previous review, as well as insights into the key policy-relevant questions from that review. Participants may also want to review related documents including:
1. Technical memos considered by the CASAC Ozone Panel as part of the reconsideration of the 2020 decision (available on the CASAC website under “meeting materials” at
2. Letter from Elizabeth A. Sheppard, Chair, Clean Air Scientific Advisory Committee, to Administrator Michael S. Regan. Re: CASAC Review of the EPA's Integrated Science Assessment (ISA) for Ozone and Related Photochemical Oxidants (Final Report—April 2020). November 22, 2022. EPA-CASAC-23-001. Available at:
3. Letter from Elizabeth A. Sheppard, Chair, Clean Air Scientific Advisory Committee, to Administrator Michael S. Regan. Re: CASAC Review of the EPA's Policy Assessment (PA) for the Reconsideration of the Ozone National Ambient Air Quality Standards (External Review Draft Version 2) (June 9, 2023) (EPA-CASAC-23-002). Available at
Following the workshop, EPA will develop a workshop proceedings document and a three-volume Integrated Review Plan (IRP) for the review of the ozone NAAQS. Volume 1 will provide background on the ozone NAAQS. Volume 2 is the planning document for the review and the ISA, and will outline the schedule, process, and approaches for evaluating the relevant scientific information and addressing the key policy-relevant issues to be considered in this review. Lastly, Volume 3 is the planning document for technical air quality, exposure, and risk analyses. CASAC will be asked to consult with the Agency on Volumes 2 and 3, and the public will also have the opportunity to comment. The IRP, with input received from the CASAC and the public, will provide the framework to guide the review and development of the draft ISA and policy assessments.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is announcing an opportunity for public input on ENERGY STAR product specification development activities. Since its creation in 1992, the ENERGY STAR program has grown to designate highly efficient products in more than 75 categories, all of which are independently certified. EPA relies on broad stakeholder engagement to develop and maintain its ENERGY STAR product specifications and grow and evolve the products portfolio. Through its products work, the Agency also looks for innovative ways to accelerate market movement to greater efficiency. The ENERGY STAR products specification 2024 annual workplan is posted on the ENERGY STAR website at
Kathleen Vokes, Acting Supervisor ENERGY STAR Product Specifications Branch, Office of Atmospheric Programs (6202A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NSPS for Onshore Natural Gas Processing Plants (EPA ICR Number 1086.13, OMB Control Number 2060-0120), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through April 30, 2024. Public comments were previously requested via the
Comments may be submitted on or before May 24, 2024.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2023-0118, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Muntasir Ali, Sector Policies and Program Division (D243-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 27711; telephone number: (919) 541-0833; email address:
This is a proposed extension of the ICR, which is currently approved through April 30, 2024. An Agency may neither conduct nor sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Public comments were previously requested via the
The New Source Performance Standards for Onshore Natural Gas Processing Plants (40 CFR part 60, subpart LLL) were proposed on January 20, 1984, promulgated on October 1, 1985, and most recently amended on August 16, 2012. These regulations apply to sulfur dioxide (SO
Federal Permitting Improvement Steering Council.
30-Day notice; request for comment.
The Federal Permitting Improvement Steering Council (Permitting Council) Executive Director invites the public and Federal agencies to comment on an existing information collection request (ICR) 3121-0002. The information collection was previously published in the
Please send your comments on this ICR on or before May 24, 2024.
Please send your comments to
John Flores, at
The Permitting Council publishes this notice in the
The Permitting Council coordinates Federal environmental reviews
The Permitting Council Executive Director, with the approval of the OMB Director, also may transfer funds from the Environmental Review and Improvement Fund (ERIF) to Federal agencies and state, local, and tribal governments to make the environmental review and authorization process for FAST-41 covered projects more timely and efficient. 42 U.S.C. 4370m-8(d)(3). Executive Director has established the ERIF Tribal Assistance Program (TAP) to facilitate the distribution of ERIF funds to Tribal governments pursuant to this authority.
This collection is necessary for administration of the ERIF TAP in accordance with 42 U.S.C. 4370m-8(d)(3). The Executive Director seeks public comment on the application form that the Executive Director would use to collect information from Tribal governments that seek ERIF TAP funding. The form will be used by the Executive Director to evaluate the eligibility of each Tribal government applicant, and determine whether, the circumstances under which, and the amount of any ERIF funds that may be transferred to a Tribal government applicant pursuant to 42 U.S.C. 4370m-2(d)(3). Seeking ERIF funds under the ERIF TAP is voluntary with each Tribal government. The application form is planned as a one-time information collection per applicant. The Permitting Council estimates that it will take approximately 40 hours to complete the application form for ERIF TAP funds.
Completed application forms must be submitted to the Executive Director through
The Federal Communications Commission will hold an Open Meeting on the subjects listed below on Thursday, April 25 2024, which is scheduled to commence at 10:30 a.m. in the Commission Meeting Room of the Federal Communications Commission, 45 L Street NE, Washington, DC.
While attendance at the Open Meeting is available to the public, the FCC headquarters building is not open access and all guests must check in with and be screened by FCC security at the main entrance on L Street. Attendees at the Open Meeting will not be required to have an appointment but must otherwise comply with protocols outlined at:
The meeting will be webcast at:
Additional information concerning this meeting may be obtained from the Office of Media Relations, (202) 418-0500. Audio/Video coverage of the meeting will be broadcast live with open captioning over the internet from the FCC Live web page 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 might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” 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.
Written comments and recommendations for the proposed information collection should be submitted on or before May 24, 2024.
Comments should be sent to
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) go to the web page
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.”
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.
Written PRA comments should be submitted on or before June 24, 2024. 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.
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.
Section 54.703 states that industry and non-industry groups may submit to the Commission for approval nominations for individuals to be appointed to the USAC Board of Directors.
Sections 54.719 through 54.725 describes the procedures for Commission review of USAC decisions including the general filing requirements pursuant to which parties may file requests for review.
The Commission hereby gives notice of filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments, relevant information, or documents regarding the agreements to the Secretary by email at
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 received are subject to public disclosure. In general, comments received will be made available without change and will not be modified to remove personal or business information including confidential, contact, or other identifying information. Comments should not include any information such as confidential information that would not be appropriate for public disclosure.
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
1.
Board of Governors of the Federal Reserve System.
Office of Community Services, Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comments.
The Office of Community Services (OCS), Administration for Children and Families (ACF) requests a 3-year extension of the Community Services Block Grant (CSBG) State Plan, CSBG Eligible Entity Master List, and the American Customer Survey Index (ACSI) forms (OMB #0970-0382, expiration 8/31/2024). There are no changes requested to these information collections.
You can obtain copies of the proposed collection of information and submit comments by emailing
OCS is also requesting to extend approval of the following information collections, with no changes proposed:
•
•
OCS anticipates submitting a subsequent revision to this information collection, pending OMB review and approval of a separate but related information collection request (CSBG Annual Report, OMB No. 0970-0492) that is scheduled to publish on April 22, 2024 (see
Office of Refugee Resettlement, Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comments.
The Office of Refugee Resettlement (ORR), Administration for children and Families (ACF), U.S. Department of Health and Human Services (HHS), seeks an update to the existing data collection for the form ORR-5: Refugee Data Submission System for Formula Funds Allocations and Service Analysis (OMB#: 0970-0043, expiration 4/30/2024) and requests an extension of approval for three years. Minor changes to the form ORR-5 are as proposed in the description section. Since the previous comment period, there are additional minor proposed edits: an additional data element to clarify whether the initial client assessment was completed and a change to spacing in headers to improve data processing. ACF estimates the proposed changes will not increase response burden.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the Paperwork Reduction Act of 1995, HRSA submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period. OMB may act on HRSA's ICR only after the 30-day comment period for this notice has closed.
Comments on this ICR should be received no later than May 24, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request a copy of the clearance requests submitted to OMB for review, email Joella Roland, the HRSA Information Collection Clearance Officer, at
The information will be collected from participants in HRSA's Maternal and Child Health Bureau PMHCA award recipient programs that were funded in 2021, 2022, or 2023. The 2021 and 2022 PMHCA programs were authorized by 42 U.S.C 254c-19 (Title III, section 330M of the Public Health Service Act), using funding appropriated by Section 2712 of the American Rescue Plan Act of 2021 (Pub. L. 117-2), and the 2023 PMHCA programs were authorized by 42 U.S.C 254c-19 (section 330M of the Public Health Service Act), as amended by section 11005 of the Bipartisan Safer Communities Act (Pub. L. 117-159). To examine the impact of the PMHCA program on children and adolescents, this data collection will use two instruments: the HP Impact Survey and the Family/Caregiver Focus Group Discussion (FGD). Additionally, family members/caregivers identified by PMHCA programs to participate in the Family/Caregiver FGD will be asked demographic questions (Family/Caregiver Demographic Questionnaire) about themselves and their child/adolescent for the purpose of FGD sampling and to inform qualitative data analyses.
A 60-day notice published in the
•
•
•
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended for the review, discussion, and evaluation of individual grant applications conducted by the
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors, National Institute of Mental Health.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Mental Health, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Diabetes and Digestive and Kidney Diseases Advisory Council.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual grant applications conducted by the
Cybersecurity and Infrastructure Security Agency (CISA), Department of Homeland Security (DHS).
60-Day notice and request for comments; renewal, 1670-0009.
DHS CISA Infrastructure Security Division (ISD) will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance.
Comments are due by June 24, 2024. Submissions received after the deadline for receiving comments may not be considered.
You may submit comments, identified by docket number CISA-2024-0011 at:
Comments submitted in response to this notice may be made available to the public through relevant websites. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to the public notwithstanding the inclusion of the routine notice.
Iesha Alexander, 202-440-0834,
The Homeland Security Presidential Directive-7, Presidential Policy Directive-21, and the National Infrastructure Protection Plan highlight the need for a centrally managed repository of infrastructure attributes capable of assessing risks and facilitating data sharing. The Critical Infrastructure Information Act of 2002 and Title 6 Code of Federal Regulation part 29 direct an information protection program and a system to record the receipt, acknowledgement, and validation of submitted critical infrastructure information (CII), as well as storage, dissemination, and destruction of original Protected Critical Infrastructure Information (PCII). To support these missions, the DHS CISA ISD developed the CISA Gateway and the Protected Critical Infrastructure Information Management System (PCIIMS). The CISA Gateway and PCIIMS contain several capabilities which support the homeland security mission in the area of critical infrastructure (CI) and information protection.
The purpose of this collection is to gather the details pertaining to the users of the CISA Gateway and PCIIMS for the purpose of creating accounts to access the CISA Gateway and PCIIMS. This information is also used to verify a need to know to access the CISA Gateway and PCIIMS. After being vetted and granted access, users are prompted and required to take an online training course upon first logging into the system. After completing the training, users are permitted full access to the systems. In addition, this collection will gather feedback from the users of the CISA Gateway to determine any future system improvements.
The information gathered will be used by the CISA Gateway Program Management Team and the PCII Program Office for PCIIMS to vet users for a need to know and grant access to the system. For the CISA Gateway, as part of the registration process, users are required to take a one-time online training course. When logging into the system for the first time, the system prompts users to take the training courses. Users cannot opt out of the training and are required to take the course in order to gain and maintain access to the system. When users complete the training, the system automatically logs that the training is complete and allows full access to the system. For PCIIMS, after registration and vetting, users are directed to take PCII Authorized User training, which must be retaken annually to maintain their active status.
The collection of information uses automated electronic forms. During the online registration process, there is an electronic form used to create a user account and an online training course required to grant access.
The collection was initially approved on October 9, 2007, and the most recent approval was on December 19, 2023, with an expiration date of June 30, 2024. The changes to the collection since the previous OMB approval include; updating the title of the collection, decrease in burden estimates and decrease in costs The total annual burden cost for this collection has changed by $3,096.40, from $4,128 to $7,224.40 due to the removal of the utilization survey, and the addition of PCIIMS respondents. For the CISA Gateway, the total number of responses has increased from 350 to 700 due to the updated metrics resulting from the awareness campaign and due to the registration process changing which does not include the training registration. The annual government cost for this collection has changed by $8,340.92 from $5,723 to $14,063.92 due to the removal of the utilization survey, and the addition of PCIIMS respondents. The This is a renewal with changes of an information collection.
OMB is particularly interested in comments that:
1. 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;
2. 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;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Cybersecurity and Infrastructure Security Agency (CISA), Department of Homeland Security (DHS).
Notice of partially closed Federal Advisory Committee meeting.
CISA is publishing this notice to announce the President's National Security Telecommunications Advisory Committee (NSTAC) meeting on May 23, 2024, in Washington DC. This meeting will be partially closed to the public. The public can access the open portion of the meeting via teleconference.
The May 23, 2024 NSTAC Meeting's open session is set to be held from 3:15 to 4:30 p.m. EDT at 1650 Pennsylvania Avenue NW, Washington, DC 20504. Members of the public may participate via teleconference. For access to the conference call bridge, or to request special assistance, please email
•
•
A public comment period is scheduled to be held during the meeting from 4:00 to 4:10 p.m. EDT. Speakers who wish to participate in the public comment period must email
Christina Berger, 202-701-6354,
The NSTAC is established under the authority of Executive Order (E.O.) 12382, dated September 13, 1982, as amended by E.O. 13286 and 14048, continued under the authority of E.O. 14109, dated September 30, 2023. Notice of this meeting is given under the Federal Advisory Committee Act (FACA), 5 U.S.C. 10 (Pub. L. 117-286). The NSTAC advises the President on matters related to national security and emergency preparedness (NS/EP) telecommunications and cybersecurity policy.
The committee will also meet in a closed session from 1:00 to 3:00 p.m. EDT during which time: (1) senior government intelligence officials will provide a threat briefing concerning threats to NS/EP communications; and (2) engage NSTAC members in follow-on discussion on how future studies can help inform policy to mitigate threats.
These agenda items are the: (1) classified threat briefing and discussion, which will provide NSTAC members the opportunity to discuss information concerning threats to NS/EP communications with senior government intelligence officials; and (2) potential study topic discussion. The briefing is anticipated to be classified at the top secret/sensitive compartmented information level. Disclosure of these threats during the briefing, as well as vulnerabilities and mitigation techniques, is a risk to the Nation's cybersecurity posture because adversaries could use this information to compromise commercial and government networks. Subjects discussed during the potential study topics discussion are tentative and are under further consideration by the committee.
Therefore, this portion of the meeting is required to be closed pursuant to section 10(d) of FACA and 5 U.S.C. 552b(c)(1) because it will disclose matters that are classified.
Fish and Wildlife Service, Interior.
Notice of virtual meeting.
The U.S. Fish and Wildlife Service (Service) gives notice of a virtual meeting of the Hunting and Wildlife Conservation Council (Council), in accordance with the Federal Advisory Committee Act.
The meeting will be held via a virtual meeting platform. To register and receive the web address and telephone number for virtual participation, contact the DFO (see
Douglas Hobbs, DFO, by email at
Under the authority of the Federal Advisory Committee Act (5 U.S.C. ch. 10), the Hunting and Wildlife Conservation Council (Council) was established to further the provisions of the Fish and Wildlife Act of 1956 (16 U.S.C. 742a
Among other business to be addressed by the Council, the meeting will include:
• reports by Council subcommittees;
• discussion of and further consideration of the Council recommendations related to the management and future use of lead and
• discussion and further consideration of a Council recommendation pertaining to land appraisal and land exchange processes at both the Department of the Interior and the Department of Agriculture;
• briefings from Federal agency staff on the fiscal year 2025 budget request for the U.S. Fish and Wildlife Service, mature and old-growth forest regulations by the U.S. Forest Service, and the Bureau of Land Management solar energy draft programmatic environmental impact statement; and
• a briefing on the name change of the U.S. Fish and Wildlife Service's Wildlife and Sport Fish Restoration program to the Office of Conservation Investment.
The Council will also hear public comment if members of the public make such requests. The final agenda and other related meeting information will be available on the Council website,
Depending on the number of people who want to comment and the time available, the amount of time for individual oral comments may be limited. Interested parties should contact the DFO in writing (see
Please make requests in advance for sign language interpreter services, assistive listening devices, or other reasonable accommodations. Please contact the DFO (see
Before including your address, phone number, email address, or other personal identifying information on any comments you might have about this notice, 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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined that the March 19, 2024, initial determination (“ID”) (Order No. 23) issued by the presiding administrative law judge (“ALJ”) granting a motion to withdraw Complainants' request for a general exclusion order (“GEO”) in connection with the asserted trademarks and trade dress and to cancel the evidentiary hearing is properly issued in the form of an order rather than an initial determination. Order No. 23 also includes the ALJ's recommended determination (“RD”) on remedy and bonding, and thus, the Commission requests written submissions from the parties, interested government agencies, and other interested persons on the issues of remedy, the public interest, and bonding, under the schedule set forth below.
Amanda P. Fisherow, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2737. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
The Commission instituted this investigation on May 31, 2023, based on a complaint, as supplemented, filed by Composite Resources, Inc. of Rock Hill, South Carolina, and North American Rescue, LLC of Greer, South Carolina (collectively, “Complainants”). 88 FR 34893-95 (May 31, 2023). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, sale for importation, or sale in the United States after importation of certain blood flow restriction devices with rotatable windlasses and components thereof that infringe one or more of: claims 1-17 of U.S. Patent No. 7,842,067 (“the '067 patent”), claims 1-30 of the U.S. Patent No. 8,888,807 (“the '807 patent”), and claims 1-13 of the U.S. Patent No. 10,016,203 (“the '203 patent”); United States Trademark Registration Nos. 3,863,064 and 5,064,378; and trade dress infringement in violation of Section 43(a) of the Lanham Act (15 U.S.C. 1125) the threat or effect of which is to destroy or substantially injure an industry in the United States.
The Commission's notice of investigation named the following respondents: (1) Anping Longji Medical Equipment Factory of Hengshui City, China; Dongguanwin Si Hai Precision Mold Co., Ltd. of Dongguan, China; Eiffel Medical Supplies Co., Ltd. of Shenzhen, China; Empire State Distributors Inc. of Brooklyn, New York; EMRN Medical Equipment of LaSalle, Canada; GD Tianwu New Material Tech Co., Ltd. of Guangzhou, China; Hengshui Runde Medical Instruments Co., Ltd. of Hengshui City, China; Putian Dima Trading Co., Ltd. of Putian City, China; Rhino Inc. of Lewes, Delaware; Shanghai Sixu International Freight Agent Co., Ltd. Of Shanghai, China; Shenzhen Anben E-Commerce Co., Ltd. of Shenzhen, China; Shenzhen TMI Medical Supplies Co., Ltd. of Shenzhen, China; Shenzhen Yujie
The Commission terminated the Participating Respondents based on the entry of consent orders.
On November 1, 2023, Complainants filed a motion to partially terminate the investigation with respect to the '807 and '203 patents. On November 2, 2023, the ALJ issued Order No. 14 granting the motion. Order No. 14 (Nov. 2, 2023),
On January 23, 2024, Complainants filed a motion to terminate claims 2, 3, 5-14, and 17 of the '067 patent. On January 25, 2024, the ALJ issued Order No. 19 granting the motion. Order No. 19 (Jan. 25, 2024),
On December 22, 2023, Complainants filed a motion for summary determination on violation of section 337 with regard to the '067 patent, trademarks, and trade dress by those respondents who had been found in default in this investigation. Complainants later withdrew the portion of the motion concerning the trademark and trade dress violations. On February 7, 2024, the ALJ issued Order No. 20, granting the motion in part with respect to the claims 1, 4, 15, and 16 of the '067 patent. Order No. 20 (Feb. 7, 2024),
On March 1, 2024, Complainants filed a motion to terminate the investigation in part based on a withdrawal of its request for a GEO as to the trademark and trade dress claims and to cancel the hearing.
On March 19, 2024, the ALJ granted the motion and issued the subject order (Order No. 23) styled as an initial determination. Order No. 23 also includes the ALJ's RD on remedy and bonding. Specifically, the RD recommends that the Commission issue a GEO as to claims 1, 4, 15, and 16 of the '067 patent. Order No. 23 at 9-12. The RD further recommends that a limited exclusion order and a cease and desist order issue against each of the Defaulting Respondents in connection with the asserted claims of the '067 patent, as well as the asserted trademarks and the trade dress.
Upon review of Commission Rules 210.16, 210.21, and 210.42, 19 CFR 210.16, 210.21, 210.42, the Commission has determined that the ALJ's March 19, 2024, initial determination (Order No. 23) granting Complainants' motion to withdraw its request for a GEO as to the asserted trademark and trade dress claims and to cancel the hearing is an order rather than an initial determination. Commission Rule 210.42 does not include declaration or withdrawal of the requested remedies and/or cancellation of the hearing in the list of issues that must be decided in the form of an initial determination. Nor are such requests properly the subject of motions for termination of the investigation under Rule 210.21. Accordingly, the Commission treats Order No. 23 as an order and an RD on remedy and bonding, not subject to the procedures and deadlines in Rules 210.42-43, 19 CFR 210.42-43.
In connection with the final disposition of this investigation, the statute authorizes issuance of,
The statute requires the Commission to consider the effects of that remedy upon the public interest. The public interest factors the Commission will consider include the effect that an exclusion order and cease and desist orders would have on: (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve, disapprove, or take no action on the Commission's determination.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. The Commission's paper filing requirements in 19 CFR 210.4(f) are currently waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the investigation number (“Inv. No. 337-TA-1364”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment by marking each document with a header indicating that the document contains confidential information. This marking will be deemed to satisfy the request procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b) & 210.5(e)(2)). Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. Any non-party wishing to submit comments containing confidential information must serve those comments on the parties to the investigation pursuant to the applicable Administrative Protective Order. A redacted non-confidential version of the document must also be filed simultaneously with any confidential filing and must be served in accordance with Commission Rule 210.4(f)(7)(ii)(A) (19 CFR 210.4(f)(7)(ii)(A)). All information, including confidential business information and documents for which confidential treatment is properly sought, submitted to the Commission for purposes of this investigation may be disclosed to and used: (i) by the Commission, its employees and Offices, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government employees and contract personnel, solely for cybersecurity purposes. All contract personnel will sign appropriate nondisclosure agreements. All nonconfidential written submissions will be available for public inspection on EDIS.
The Commission vote for this determination took place on April 18, 2024.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that, on April 16, 2024, the presiding administrative law judge (“ALJ”) issued an Initial Determination on Violation of section 337. The ALJ also issued a Recommended Determination on Remedy and Bond should a violation be found in the above-captioned investigation. The Commission is soliciting submissions on public interest issues raised by the recommended relief should the Commission find a violation. This notice is soliciting comments from the public and interested government agencies only.
Joelle P. Justus, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 617-1998. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
Section 337 of the Tariff Act of 1930 provides that, if the Commission finds a violation, it shall exclude the articles concerned from the United States unless, after considering the effect of such exclusion upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, it finds that such articles should not be excluded from entry. (19 U.S.C. 1337(d)(1)). A similar provision applies to cease and desist orders. (19 U.S.C. 1337(f)(1)).
The Commission is soliciting submissions on public interest issues raised by the recommended relief should the Commission find a violation, specifically: a limited exclusion order directed to components for certain environmentally-protected LCD digital displays and products containing the same that are imported, sold for importation, and/or sold after importation by Respondent Manufacturing Resources International, Inc. The Recommended Determination does not recommend issuance of the requested cease and desist order. Parties are to file public interest submissions pursuant to 19 CFR 210.50(a)(4).
The Commission is interested in further development of the record on the public interest in this investigation. Accordingly, members of the public and interested government agencies are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the ALJ's Recommended Determination on Remedy and Bond issued in this investigation on April 16, 2024. Comments should address whether issuance of the recommended remedial order in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) explain how the articles potentially subject to the recommended remedial order are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended order;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third-party suppliers have the capacity to replace the volume of articles potentially subject to the recommended order within a commercially reasonable time; and
(v) explain how the recommended order would impact consumers in the United States.
Written submissions must be filed no later than by close of business on May 20, 2024.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. The Commission's paper filing requirements in 19 CFR 210.4(f) are currently waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the investigation number (“Inv. No. 337-TA-1349”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment by marking each document with a header indicating that the document contains confidential information. This marking will be deemed to satisfy the request procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b) & 210.5(e)(2)). Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. Any non-party wishing to submit comments containing confidential information must serve those comments on the parties to the investigation pursuant to the applicable Administrative Protective Order. A redacted non-confidential version of the document must also be filed simultaneously with any confidential filing and must be served in accordance with Commission Rule 210.4(f)(7)(ii)(A) (19 CFR 210.4(f)(7)(ii)(A)). All information, including confidential business information and documents for which confidential treatment is properly sought, submitted to the Commission for purposes of this investigation may be disclosed to and used: (i) by the Commission, its employees and Offices, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government employees and contract personnel, solely for cybersecurity purposes. All contract personnel will sign appropriate nondisclosure agreements. All nonconfidential written submissions will be available for public inspection on EDIS.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Office of Community Oriented Policing Services, Department of Justice.
30-Day notice.
The office of Community Oriented Policing Services, 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. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 days until May 24, 2024.
If you have 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: Dave Neely, Department of Justice, Office of Community Policing Services, 145 N St. NE, Washington, DC 20530, (202) 514-8553.
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:
Written comments and recommendations for this information collection should be submitted within 30 days of the publication of this notice on the following website
DOJ seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOJ notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Employment and Training Administration (ETA), Labor.
Notice of a public meeting.
Pursuant to the Federal Advisory Committee Act (FACA), notice is hereby given to announce a public meeting of the ACA. All meetings of the ACA are open to the public.
The meeting will be held on Tuesday June 4, 2024, The meeting will begin at approximately 1:30 p.m. Eastern Standard Time (EST) and end at approximately 4 p.m. EST. The meeting will reconvene on Wednesday, June 5, 2024, at 9:30 a.m. EST and adjourn at approximately 4:30 p.m. EST.
U.S. Department of Labor, Frances Perkins Building located at 200 Constitution Avenue NW, Washington, DC 20210.
Any updates to the agenda and meeting logistics will be posted on the Office of Apprenticeship's website at:
The Designated Federal Officer (DFO), Mr. John V. Ladd, Administrator, Office of Apprenticeship, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room C-5321, Washington, DC 20210; Email:
The ACA is a discretionary committee that was renewed by the Acting Secretary of Labor in accordance with the FACA (5 U.S.C. App. 2 § 10), as amended in 5 U.S.C. App. 2, and its implementing regulations (41 CFR 101-6 and 102-3). The ACA's Charter was renewed on May 11, 2023, and is active for two years. This will be the first meeting of the renewed ACA. All meeting materials, including all previous term materials, are posted here:
Virtual meeting instructions will also be posted on posted on the Office of Apprenticeship's website at:
The agenda and meeting logistics may be updated should priority items come before the ACA between the time of this publication and the scheduled date of the ACA meeting. All meeting updates will be posted to the Office of Apprenticeship's website at:
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Bureau of Labor Statistics (BLS)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before May 24, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Nicole Bouchet by telephone at 202-693-0213, or by email at
The Current Employment Statistics (CES) program provides current monthly statistics on employment, hours, and earnings, by industry and geography. CES estimates are among the most visible and widely-used Principal Federal Economic Indicators (PFEIs). CES data are also among the timeliest of the PFEIs, with their release each month by the BLS in the Employment Situation, typically on the first Friday of each month. The statistics are fundamental inputs in economic decision processes at all levels of government, private enterprise, and organized labor. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
(Authority: 44 U.S.C. 3507(a)(1)(D))
The Bureau of Labor Statistics Technical Advisory Committee will meet on Thursday, May 9, 2024. This meeting will be held virtually from 10:00 a.m. to 4:00 p.m. EST. The Committee presents advice and makes recommendations to the Bureau of Labor Statistics (BLS) on technical aspects of data collection and the formulation of economic measures and makes recommendations on areas of research. The BLS presents issues and then draws on the expertise of Committee members representing specialized fields within the academic disciplines of economics, statistics, data science, and survey design.
The schedule and agenda for the meeting are as follows:
The meeting is open to the public. Any questions concerning the meeting should be directed to Sarah Dale, Bureau of Labor Statistics Technical Advisory Committee, at
The Bureau of Labor Statistics Data Users Advisory Committee will meet on Thursday, May 16, 2024. This meeting will be held virtually.
The Committee provides advice to the Bureau of Labor Statistics from the points of view of data users from various sectors of the U.S. economy, including the labor, business, research, academic, and government communities. The Committee advises on technical matters related to the collection, analysis, dissemination, and use of the Bureau's statistics, on its published reports, and on the broader aspects of its overall mission and function.
The agenda for the meeting is as follows:
All times are eastern time. The meeting is open to the public. Anyone planning to attend the meeting should contact Ebony Davis, Data Users Advisory Committee, at
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the final decision to expand the scope of recognition for Intertek Testing Services NA, Inc., (ITSNA) as a Nationally Recognized Testing Laboratory (NRTL).
The expansion of the scope of recognition becomes effective on April 24, 2024.
Information regarding this notice is available from the following sources:
OSHA hereby gives notice of the expansion of the scope of recognition of Intertek Testing Services NA, Inc. (ITSNA) as a NRTL. ITSNA's expansion covers the addition of four test standards to the NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition. Each NRTL's scope of recognition includes: (1) the type of products the NRTL may test, with each type specified by the applicable test standard; and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The agency processes applications by a NRTL for initial recognition and for an expansion or renewal of this recognition, following requirements in appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
ITSNA submitted an application dated February 15, 2021 (OSHA-2007-0039-0055), requesting the addition of four test standards to the NRTL scope of recognition. OSHA staff performed a detailed analysis of the application packet and reviewed other pertinent information. OSHA did not perform any on-site reviews in relation to this application.
OSHA published the preliminary notice announcing ITSNA's expansion application in the
To obtain or review copies of all public documents pertaining to the ITSNA application, go to
OSHA staff examined ITSNA's expansion application, its capability to meet the requirements of the test standards, and other pertinent information. Based on its review of this evidence, OSHA finds that ITSNA meets the requirements of 29 CFR 1910.7 for expansion of its recognition, subject to the limitations and conditions listed in this notice. OSHA, therefore, is proceeding with this final notice to grant ITSNA's expanded scope of recognition. OSHA limits the expansion
The American National Standards Institute (ANSI) may approve the test standards listed above as American National Standards. However, for convenience, we may use the designation of the standards-developing organization for the standard as opposed to the ANSI designation. Under the NRTL Program's policy (see OSHA Instruction CPL 01-00-004, Chapter 2, Section VIII), any NRTL recognized for a particular test standard may use either the proprietary version of the test standard or the ANSI version of that standard. Contact ANSI to determine whether a test standard is currently ANSI-approved.
In addition to those conditions already required by 29 CFR 1910.7, ITSNA must abide by the following conditions of the recognition:
1. ITSNA must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major change in its operations as a NRTL, and provide details of the change(s);
2. ITSNA must meet all the terms of its recognition and comply with all OSHA policies pertaining to this recognition; and
3. ITSNA must continue to meet the requirements for recognition, including all previously published conditions on ITSNA's scope of recognition, in all areas for which it has recognition.
Pursuant to the authority in 29 CFR 1910.7, OSHA hereby expands the scope of recognition of ITSNA as a NRTL, subject to the limitations and conditions specified above.
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 8-2020 (85 FR 58393, Sept. 18, 2020), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Voluntary Protection Program.
Comments must be submitted (postmarked, sent, or received) by June 24, 2024.
For further information on submitting comments, see the “Public Participation” heading in the section of this notice titled
Seleda Perryman, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of the continuing effort to reduce paperwork and respondent (
The following sections describe who uses the information collected under each requirement, as well as how they use it. The Voluntary Protection Program (VPP)
• General applicant information (
• Injury and illness rate performance information (
• Safety and health management program information (
Each current VPP applicant is also required to submit an annual evaluation which addresses how that applicant is continuing the adherence to programmatic requirements. In 2008, OSHA modified procedures for VPP applicants, OSHA on-site evaluation, and Annual participant self-evaluation for applicants/participants subject to OSHA's Process Safety Management (PSM) Standard. Applicants that perform works that use or produce highly hazardous chemical exceeding specified limits covered under the PSM standard must submit responses to the PSM application supplement along with their VPP application.
Once in the VPP, the participant is required to submit an annual evaluation detailing the continued adherence to programmatic requirements. Applicants covered under the PSM standard are required to submit a PSM questionnaire a supplemental document as part of their annual submission. OSHA needs this information to ensure that the participant remains qualified to participate in the VPP between the on-site evaluations. Without this information, OSHA would be unable to determine whether applicants are maintaining excellent safety and health management programs during this interim period.
In 2009, with the publication of the
Employees of VPP participants may apply to participate in the Special Government Employee (SGE) Program. The SGE Program offers private and public sector safety and health professionals and other qualified participants the opportunity to exchange ideas, gain new perspectives, and grow professionally while serving as full-fledged team members on OSHA's VPP on-site evaluations. In that capacity, SGEs may review company documents, assist with worksite walkthroughs, interview employees, and assist in preparing VPP on-site evaluation reports. Potential SGEs must submit an application that includes:
• SGE Eligibility Information Sheet (
• Current Resume;
• Optional Application for Federal Employment OF-612; and
• Confidential Financial Disclosure Report (OGE Form 450).
OSHA uses the SGE Eligibility Information Sheet to ensure that the potential SGE works at a VPP site and meets the minimum eligibility qualifications. The resume is required to provide a detailed description of their current duties and responsibilities as they relate to safety and health and the implementation of an effective safety and health management program. The OGE Form 450 is used to ensure that SGEs do not participate in on-site evaluations at VPP sites where they have a financial interest.
OSHA Challenge is designed to reach and guide employers and companies in all major industry groups who are strongly committed to improving their safety and health management programs and possibly pursuing recognition in the VPP. The Challenge Administrators application is used to: (1) conduct a preliminary analysis of the applicant's knowledge of safety and health management programs; and (2) make a determination regarding the applicant's qualifications to become a Challenge Administrator. Once a Challenge Administrator is approved, the Administrator will review each challenge candidate's application/annual submissions to ensure that all necessary information is provided, prior to forwarding to OSHA's National Office for acceptance and analysis.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information, and transmission techniques.
OSHA is requesting that OMB extend the approval of the information collection requirements contained in Voluntary Protection Programs. The agency is requesting an adjustment decrease from 90,500 hours to 69,657 hours, a difference of 20,843 hours. This decrease is due to the lack of Challenge Participation, lack of training of new SGE applicants and re-approval training of existing SGE's. The lingering effect of the COVID-19 Pandemic effected all OSHA Cooperative Programs.
OSHA will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Comments and submissions are posted without change at
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the final decision to expand the scope of recognition for TUV Rheinland of North America, Inc., as a Nationally Recognized Testing Laboratory (NRTL).
The expansion of the scope of recognition becomes effective on April 24, 2024.
Information regarding this notice is available from the following sources:
OSHA hereby gives notice of the expansion of the scope of recognition of TUV Rheinland of North America, Inc. (TUVRNA), as a NRTL. TUVRNA's expansion covers the addition of two test standards to the NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by the applicable test standard and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The agency processes applications by NRTLs or applicant organizations for initial recognition, as well as for expansion or renewal of recognition, following requirements in appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
TUVRNA submitted an application, dated June 7, 2023 (OSHA-2007-0042-0072), to expand recognition to include the addition of two test standards to the NRTL scope of recognition. OSHA staff performed a detailed analysis of the application packet and reviewed other pertinent information. OSHA did not perform any on-site reviews in relation to this application.
OSHA published the preliminary notice announcing TUVRNA's expansion application in the
To review copies of all public documents pertaining to TUVRNA's application, go to
OSHA staff examined TUVRNA's expansion application, their capability to meet the requirements of the test standard, and other pertinent information. Based on its review of this evidence, OSHA finds that TUVRNA meets the requirements of 29 CFR 1910.7 for expansion of its recognition, subject to the limitations and conditions listed below. OSHA, therefore, is proceeding with this final notice to grant TUVRNA's scope of recognition. OSHA limits the expansion of TUVRNA's recognition to testing and certification of products for demonstration of conformance to the test standards shown below in Table 1.
OSHA's recognition of any NRTL for a particular test standard is limited to equipment or materials for which OSHA standards require third-party testing and certification before using them in the workplace. Consequently, if a test standard also covers any products for which OSHA does not require such testing and certification, a NRTL's scope of recognition does not include these products.
Recognition is contingent on continued compliance with 29 CFR 1910.7, including but not limited to, abiding by the following conditions of recognition:
1. TUVRNA must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major change in its operations as a NRTL, and provide details of the change(s);
2. TUVRNA must meet all the terms of its recognition and comply with all OSHA policies pertaining to this recognition; and
3. TUVRNA must continue to meet the requirements for recognition, including all previously published conditions on TUVRNA's scope of recognition, in all areas for which it has recognition.
OSHA hereby expands the scope of recognition of TUVRNA, subject to the limitations and conditions specified above.
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 8-2020 (85 FR 58393, September 18, 2020) and 29 CFR 1910.7.
National Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the following request for revision of the approved collection of research and development data in accordance with the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314; or send email to
Previously, NRT awardees provided NSF with information on their activities through periodic research performance progress reports. The NRT monitoring system (also referred to as the NRT reporting system) has replaced these reports with a tailored program monitoring system that uses internet-based information and communication technologies to collect, review, and validate specific data on NRT awards. EDU is committed to ensuring the efficiency and effectiveness with which respondents provide and NSF staff can access and analyze data on funded projects within the NRT programs.
The NRT monitoring system includes subsets of questions aimed at the different project participants (
Use of the Information: NSF will primarily use the data from this collection for program planning, management, and audit purposes to respond to queries from the Congress, the public, NSF's external merit reviewers, who serve as advisors, including Committees of Visitors (COVs), the NSF's Office of the Inspector General, and as a basis for either internal or third-party evaluations of individual programs. This information is required for effective administration, communication, program and project monitoring and evaluation, and for measuring attainment of NSF's program, project, and strategic goals, and as identified by the President's Accountability in Government Initiative; GPRA, and the NSF's Strategic Plan. The Foundation's FY 2022-2026 Strategic Plan may be found at:
Since this collection will primarily be used for accountability and evaluation purposes, including responding to queries from COVs and other scientific experts, a census, rather than sampling design, typically is necessary. At the individual project level, funding can be adjusted based on individual project's responses to some of the surveys. Some data collected under this collection will serve as baseline data for separate research and evaluation studies.
NSF-funded contract or grantee researchers and internal or external evaluators in part may identify control, comparison, or treatment groups for NSF's education and training portfolio using some of the descriptive data gathered through this collection to conduct well-designed, rigorous research and portfolio evaluation studies.
Nuclear Regulatory Commission
Request for comment; public comment meetings.
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment draft Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 26, Second Renewal, Regarding Subsequent License Renewal for Monticello Nuclear Generating Plant, Unit 1, NUREG-1437, regarding the proposed subsequent renewal of Renewed Facility Operating License No. DPR-22, for an additional 20 years of operation for Monticello Nuclear Generating Plant, Unit 1 (Monticello). Monticello is located in central Minnesota on the banks of the Mississippi River in Sherburne and Wright Counties, approximately 38 miles northwest of Minneapolis, MN. Possible alternatives to the proposed action of subsequent license renewal (SLR) include no action and reasonable replacement power alternatives.
The staff will hold two public meetings, one in-person near Monticello and one through an online webinar and teleconference call, on the draft site-specific environmental impact statement (EIS), including a presentation on the preliminary findings and a transcribed public comment session. The virtual meeting will be held May 8, 2024, at 1 p.m. central time (CT). The in-person meeting will be held on May 15, 2024, at 6 p.m. CT, at the Monticello Community Center, South Mississippi Room, 505 Walnut St., Monticello, MN 55362. The in-person public meeting will be preceded by an open house from 5-6 p.m. CT, at the Monticello Community Center. The public meeting details can be found on the NRC's Public Meeting Schedule at
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
•
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Jessica Umaña, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-5207; email:
Please refer to Docket ID NRC-2023-0031 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this action using any of the following methods:
•
•
•
•
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 NRC is issuing for public comment draft Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants Supplement 26, Second Renewal Regarding Subsequent License Renewal for Monticello Nuclear Generating Plant, Unit 1, NUREG-1437, regarding the proposed subsequent renewal of Renewed Facility Operating License No. DPR-22, for an additional 20 years of operation for Monticello. Draft Site-Specific Supplement 26, Second Renewal, includes a preliminary analysis that evaluates the environmental impacts of the proposed action and alternatives to the proposed action. It considers the impacts of all SLR issues applicable to Monticello SLR on a site-specific basis.
Based on the NRC staff's (i) review of the SLR application, which includes the environmental report, supplemental documents, and the licensee's responses to the NRC staff's requests for additional information; (ii) consultation with Federal, State, Tribal, and local governmental agencies and consideration of input from other stakeholders; and (iii) independent environmental review as documented in the draft site-specific EIS, the NRC staff's preliminary recommendation is that the adverse environmental impacts of subsequent license renewal for Monticello are not so great that preserving the option of subsequent license renewal for energy-planning decisionmakers would be unreasonable.
Detailed information about the subsequent license renewal process can be found on the NRC's public website, under Reactor License Renewal, at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice; issuance.
The U.S. Nuclear Regulatory Commission (NRC) issued an exemption to Tennessee Valley Authority permitting Watts Bar Nuclear Plant to load five of the model 37 multi-purpose canisters (MPC) with continuous basket shims beginning July 2024 in the HI-STORM Flood/Wind MPC Storage System at its Watts Bar Nuclear Plant, Units 1 and 2 independent spent fuel storage installation in a storage condition where the terms, conditions, and specifications in the Certificate of Compliance No. 1032, Amendment No. 0, Revision No. 1 are not met.
The exemption was issued on April 17, 2024.
Please refer to Docket ID NRC-2024-0064 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:
•
•
•
John-Chau Nguyen, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555; telephone: 301-415-0262; email:
The text of the exemption is attached.
For the Nuclear Regulatory Commission.
Tennessee Valley Authority (TVA) is the holder of Facility Operating License Nos. NPF-90 and NPF-96, which authorize operation of the Watts Bar Nuclear Plant (WBN), Units 1 and 2 in Rhea County, Tennessee, pursuant to Part 50 of Title 10 of the
Consistent with 10 CFR part 72, subpart K, “General License for Storage of Spent Fuel at Power Reactor Sites,” a general license is issued for the storage of spent fuel in an Independent Spent Fuel Storage Installation (ISFSI) at power reactor sites to persons authorized to possess or operate nuclear power reactors under 10 CFR part 50. TVA is authorized to operate nuclear power reactors under 10 CFR part 50 and holds a 10 CFR part 72 general license for storage of spent fuel at the WBN ISFSI. Under the terms of the general license, TVA stores spent fuel at its WBN ISFSI using the HI-STORM Flood/Wind (FW) Multi-Purpose Canister (MPC) Storage System in accordance with Certificate of Compliance (CoC) No. 1032, Amendment No. 0, Revision No. 1.
By a letter dated February 28, 2024 (Agencywide Documents Access and Management System [ADAMS] Accession No. ML24059A369), and supplemented on March 18, 2024 (ML24078A257), TVA requested an exemption from the requirements of 10 CFR 72.212(a)(2), 72.212(b)(3), 72.212(b)(5)(i), 72.212(b)(11), and 72.214 that require WBN to comply with the terms, conditions, and specifications of the CoC No. 1032, Amendment No. 0, Revision No. 1 (ML16112A309). If approved, TVA's exemption request would accordingly allow WBN to load MPCs with continuous basket shims (CBS) (
TVA currently uses the HI-STORM FW MPC Storage System under CoC No. 1032, Amendment No. 0, Revision No. 1, for dry storage of spent nuclear fuel in MPC-37 at the WBN ISFSI. Holtec International (Holtec), the designer and manufacturer of the HI-STORM FW MPC Storage System, developed a variant of the design with CBS for the MPC-37, known as MPC-37-CBS. Holtec performed a non-mechanistic tip-over analysis with favorable results and implemented the CBS variant design under the provisions of 10 CFR 72.48, “Changes, tests, and experiments,” which allows licensees to make changes to cask designs without a CoC amendment under certain conditions (listed in 10 CFR 72.48(c)). After evaluating the specific changes to the cask designs, the NRC determined that Holtec erred when it implemented the CBS variant design under 10 CFR 72.48, as this is not the type of change allowed without a CoC amendment. For this reason, the NRC issued three Severity Level IV violations to Holtec (ML24016A190).
TVA's near-term loading campaign for the WBN ISFSI includes plans to load five MPC-37-CBS in the HI-STORM FW MPC Storage System beginning in July 2024. While Holtec was required to submit a CoC amendment to the NRC to seek approval of the CBS variant design, such a process will not be completed in time to inform decisions for this near-term loading campaign. Therefore, TVA submitted this exemption request in order to allow for future loading of five MPC-37-CBS beginning in July 2024 at the WBN ISFSI. This exemption is limited to the use of MPC-37-CBS in the HI-STORM FW MPC Storage System only for the specific near-term planned loading of five canisters using the MPC-37-CBS variant basket design.
Pursuant to 10 CFR 72.7, “Specific exemptions,” the Commission may, upon application by any interested person or upon its own initiative, grant such exemptions from the requirements of the regulations of 10 CFR part 72 as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest.
This exemption would allow TVA to load five MPC-37-CBS in the HI-STORM FW MPC Storage System, beginning July 2024, at its WBN ISFSI in a storage condition where the terms, conditions, and specifications in the CoC No. 1032, Amendment No. 0, Revision No. 1, are not met. WBN is requesting an exemption from the provisions in 10 CFR part 72 that require the licensee to comply with the terms, conditions, and specifications of the CoC for the approved cask model it uses. Section 72.7 allows the NRC to grant exemptions from the requirements of 10 CFR part 72. This authority to grant exemptions is consistent with the Atomic Energy Act of 1954, as amended, and is not otherwise inconsistent with NRC's regulations or other applicable laws. Additionally, no other law prohibits the activities that would be authorized by the exemption. Therefore, the NRC concludes that there is no statutory prohibition on the issuance of the requested exemption, and the NRC is authorized to grant the exemption by law.
This exemption would allow TVA to load five MPC-37-CBS in the HI-STORM FW MPC Storage System, beginning July 2024, at the WBN ISFSI in a storage condition where the terms, conditions, and specifications in the CoC No. 1032, Amendment No. 0, Revision No. 1, are not met. In support of its exemption request, TVA asserts that issuance of the exemption would not endanger life or property because a tip-over or handling event is administratively controlled, and that the containment boundary would be maintained in such an event. TVA relies, in part, on the approach in the NRC's Safety Determination Memorandum (ML24018A085). The NRC issued this Safety Determination Memorandum to address whether, with respect to the enforcement action against Holtec regarding this violation, there was any need to take an immediate action for the cask systems that were already loaded with non-compliant basket designs. The Safety Determination Memorandum documents a risk-informed approach concluding that, during the design basis event of a non-mechanistic tip-over, the fuel in the basket in the MPC-37-CBS remains in a subcritical condition.
TVA also provided site-specific technical information, as supplemented, including information explaining why the use of the approach in the NRC's Safety Determination Memorandum is appropriate for determining the safe use of the CBS variant baskets at the WBN ISFSI. Specifically, TVA described that the analysis of the tip-over design basis event that is relied upon in the NRC's Safety Determination Memorandum, which demonstrates that the MPC confinement barrier is maintained, is documented in the updated final safety analysis report (UFSAR) for the HI-STORM FW MPC Storage System CoC No. 1032, Amendment 0, Revision No. 1 that is used at the WBN site. TVA stated the transporter for handling of the HI-STORM FW MPC Storage System at the WBN ISFSI has redundant drop protection features and was designed, fabricated, and tested in accordance with the applicable codes described in the CoC No. 1032.
Additionally, TVA provided specific information from WBN's 72.212 Evaluation Report, Revision 5, indicating the calculated total values for annual dose to any real individual who is located beyond the controlled area are shown to be well below the limits required by 10 CFR 72.104(a), “Criteria for radioactive materials in effluents and direct radiation from an ISFSI or MRS.” The analysis of a design basis accident scenario also demonstrates compliance with 72.106, “Controlled area of an ISFSI or MRS.” Specifically, TVA described that, in the highly unlikely event of a tip-over, any potential fuel damage from a non-mechanistic tip-over event would be localized, the confinement barrier would be maintained, and the shielding material would remain intact. Coupled with the distance of the WBN ISFSI to the site area boundary, TVA concluded that compliance with 72.104 and 72.106 is not impacted by approving this exemption request.
The NRC staff reviewed the information provided by TVA and concludes that issuance of the exemption would not endanger life or property because the administrative controls TVA has in place at the WBN ISFSI sufficiently minimize the possibility of a tip-over or handling event, and that the containment boundary would be maintained in such an event. The staff confirmed that these administrative controls comply with the technical specifications and UFSAR for the HI-STORM FW MPC Storage System CoC No. 1032, Amendment 0, Revision No. 1 that is used at the WBN site. In addition, the staff confirmed that the information provided by TVA regarding WBN's 72.212 Evaluation Report, Revision 5, demonstrates that the consequences of normal and accident conditions would be within the regulatory limits of the 10 CFR 72.104 and 10 CFR 72.106. The staff also determined that the requested exemption is not related to any aspect of the physical security or defense of the WBN ISFSI; therefore, granting the exemption would not result in any potential impacts to common defense and security.
For these reasons, the NRC staff has determined that under the requested exemption, the storage system will continue to meet the safety requirements of 10 CFR part 72 and the offsite dose limits of 10 CFR part 20 and, therefore, will not endanger life or property or the common defense and security.
The proposed exemption would allow WBN to load five MPC-37-CBS in the HI-STORM FW MPC Storage System beginning in July 2024, at the WBN ISFSI, even though the CBS variant basket design is not part of the approved CoC No. 1032, Amendment No. 0, Revision No. 1. According to TVA, the exemption is in the public interest because not being able to load fuel into dry storage in the future loading campaign would impact TVA's ability to offload fuel from the WBN reactor units, consequently impacting continued safe reactor operation.
TVA stated that to delay the future loading would impact the ability to effectively manage the margin to full core discharge reserve in the WBN Unit 1 and Unit 2 spent fuel pools. WBN's upcoming loading campaign was originally scheduled to begin on January 29, 2024, but was postponed until July 2024 . Any further delay would lead to insufficient space in the spent fuel pool for core offload and the shutdown of WBN Unit 2, which in turn would potentially impact the energy supply in the area. According to TVA, the planned July 2024 loading campaign is the latest, and only opportunity for cask loading to avoid loss of full core reserve in 2025.
For the reasons described by TVA in the exemption request, the NRC agrees that it is in the public interest to grant the exemption. If the exemption is not granted, in order to comply with the CoC, WBN would have to keep spent fuel in the spent fuel pool if it is not permitted to be loaded into casks for future loading. This would impact the ability to manage the margin for full core reserve in the WBN spent fuel pool. Increased inventory in the spent fuel pool would likely require additional fuel moves, which could in turn increase dose to workers and the risk of accidents during fuel handling operations. Moreover, once the spent fuel pool capacity is reached, the ability to refuel the operating reactor is limited, thus affecting continued reactor operations. As described by TVA, this scenario would possibly result in the shutdown of one unit, which could potentially impact the energy supply in the area.
Therefore, the staff concludes that approving the exemption is in the public interest.
The NRC staff also considered whether there would be any significant environmental impacts associated with the exemption. For this proposed action, the NRC staff performed an environmental assessment pursuant to 10 CFR 51.30. The environmental assessment concluded that the proposed action would not significantly impact the quality of the human environment. The NRC staff concluded that the proposed action would not result in any changes in the types or amounts of any radiological or non-radiological effluents that may be released offsite,
Based on these considerations, the NRC has determined that, pursuant to 10 CFR 72.7, the exemption is authorized by law, will not endanger life or property or the common defense and security, and is otherwise in the public interest. Therefore, the NRC grants TVA an exemption from the requirements of §§ 72.212(a)(2), 72.212(b)(3), 72.212(b)(5)(i), 72.212(b)(11), and 72.214 with respect to the future loading in the HI-STORM FW MPC Storage System of five MPC-37-CBS beginning in July 2024.
This exemption is effective upon issuance.
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.
1.
2.
3. MC2024-234 and CP2024-240;
This Notice will be published in the
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to retire the FINRA Rule 10000 Series (Code of Arbitration Procedure) that governs arbitration and mediation claims filed in the forum administered by FINRA Dispute Resolution Services (“DRS”) prior to April 16, 2007.
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The FINRA Rule 10000 Series (“old Code”) applies to arbitration and mediation claims filed in the DRS forum prior to April 16, 2007. As part of a comprehensive plan to reorganize and simplify the old Code, FINRA previously separated the old Code into three sections: the Code of Arbitration Procedure for Customer Disputes (“Customer Code”); the Code of Arbitration Procedure for Industry Disputes (“Industry Code”); and the Code of Mediation Procedure (“Mediation Code”) (together, “Codes”).
The proposed rule change would retire the old Code. All mediation and arbitration claims that were filed in the DRS forum prior to April 16, 2007, and governed by the old Code, have closed. Thus, the old Code is no longer applicable to any mediation or arbitration claims filed in the DRS forum.
FINRA has filed the proposed rule change for immediate effectiveness.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
The proposed rule change will protect investors and the public interest by eliminating potential confusion and providing greater regulatory clarity to forum users regarding the rules applicable to claims filed in the DRS forum as it will retire the old Code, which is no longer applicable to any arbitration or mediation claims filed in the DRS forum.
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change would retire the old Code that is no longer applicable to any arbitration or mediation claims filed in the DRS forum and, therefore, would not have additional economic impacts on FINRA members or their associated persons.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to file number SR-FINRA-2024-005 and should be submitted on or before May 15, 2024.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
Pursuant to the provisions of Section 19(b)(1) under the Securities Exchange Act of 1934 (“Act”),
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to modify its Fee Schedule, pursuant to IEX Rule 15.110(a) and (c), to modify the transaction fees applicable to most
IEX is making this proposal to incentivize the posting of displayed liquidity in Tape B securities by increasing the rebate applied to those orders, thereby promoting price discovery and market quality on the Exchange, which the Exchange believes benefits all Members and market participants. The Exchange periodically assesses its fee structure. Based upon a recent assessment, the Exchange believes that the proposed pricing change would further incentivize Members to submit displayed orders in Tape B securities priced at or above $1.00 per share.
IEX proposes to increase the rebate it pays for adding displayed liquidity in Tape B securities from $0.0004 per share to $0.0014 per share for executions priced at or above $1.00 per share. “Sub-dollar”
IEX does not propose to change the fee ($0.0010 per share) currently applicable to Discretionary Peg (“D-Peg”),
Notwithstanding this exception, if an incoming Post Only
IEX is not proposing to change the fees charged or fee codes applied to Retail
IEX also proposes to introduce two new Fee Code Modifiers: “B” and “K” to reflect the proposed fee changes. Fee Code Modifier B would be included on any execution report for an execution of a Tape B security, with the exception of executions of Retail and Retail Liquidity Provider orders, which will continue to execute for free, as described above. In addition, Fee Code Modifier K would be included on execution reports for D-Peg, FM-Peg, M-Peg, or P-Peg orders that remove displayed liquidity in a Tape B security in the circumstances discussed above.
IEX also proposes to add two new footnotes to the Fee Schedule: (i) proposed Footnote 2, which would apply to Fee Code Modifier B, and (ii) proposed Footnote 3, which would apply to Fee Code Combination TLBK. Proposed Footnote 2 reads in full:
TLBK will not apply to Midpoint Peg and Fixed Midpoint Peg orders with Trade Now functionality enabled that take liquidity from an incoming Post Only order for a Tape B security; such executions will be assigned Fee Code Combination TLWB.
IEX proposes to add these Fee Codes to the Fee Code Modifiers table on the IEX Fee Schedule as follows (internal footnotes omitted):
Additionally, IEX proposes to add nine new Fee Code Combinations to the Additional Fee Code Combinations and Associated Fees table that reflect the fees IEX proposes to assess for executions involving a Tape B security:
• Fee Code Combination MIB would apply to an order that adds non-displayed liquidity in a Tape B security. These executions will be charged a fee of $0.0010 per share for executions at or above $1.00 and 0.10% of the TDV for sub-dollar executions.
• Fee Code Combination MLB would apply to an order that adds displayed liquidity in a Tape B security. These executions will be paid a rebate of $0.0014 per share for executions at or above $1.00 and execute for free for sub-dollar executions.
• Fee Code Combination MLYB would apply to a Post Only order that executes on entry with a contra-side order with the Trade Now instruction in a Tape B security. These executions will be paid a rebate of $0.0014 per share. Because the Exchange will disregard the Post Only instruction on sub-dollar orders,
• Fee Code Combination TIB would apply to an order that removes non-displayed liquidity in a Tape B security. These executions will be charged a fee of $0.0010 per share for executions at or above $1.00 and 0.10% of TDV for sub-dollar executions.
• Fee Code Combination TIYB would apply to a Post Only order priced at $1.00 or more that removes non-displayed liquidity in a Tape B security on entry. These executions will be charged a fee of $0.0010 per share for executions at or above $1.00. Because the Exchange will disregard the Post Only instruction on sub-dollar orders,
• Fee Code Combination TLB would apply to an order that removes displayed liquidity in a Tape B security. These executions will be charged a fee of $0.0020 per share for executions at or above $1.00 and 0.09% of TDV for sub-dollar executions.
• Fee Code Combination TLBK would apply to a D-Peg, FM-Peg, M-Peg, or P-Peg order that removes displayed liquidity in a Tape B security. These executions will be charged a fee of $0.0010 per share for executions at or above $1.00 and 0.09% of TDV for sub-dollar executions. As described above, Fee Code Combination TLBK will be modified by proposed footnote 2, which explains that M-Peg and FM-Peg orders with a Trade Now instruction that execute against an incoming Post Only order will be assigned Fee Code Combination TLWB, and will not be assigned Fee Code Combination TLBK.
• Fee Code Combination TLYB would apply to a Post Only order priced at $1.00 or more that removes displayed liquidity on entry in a Tape B security. These executions will be charged a fee of $0.0020 per share. Because the Exchange will disregard the Post Only instruction on sub-dollar orders,
• Fee Code Combination TLWB would apply to a resting non-displayed order with the Trade Now instruction that executes against an incoming Post Only order priced at $1.00 or more per share. These executions will be charged a fee of $0.0020 per share. Because the Exchange will disregard the Post Only instruction on an incoming sub-dollar orders,
IEX believes that the proposed rule change is consistent with the provisions of Section 6(b)
IEX has concluded that, in the context of current regulatory requirements governing access fees and rebates, it is not able to sufficiently compete with other exchanges for order flow in Tape B securities without offering higher rebate incentives. Based on informal discussions with market participants, IEX believes that Members and other market participants may be more willing to send displayed orders in Tape B securities to IEX if the proposed fee structure was adopted.
Accordingly, IEX has designed the proposed access fee and rebate to attract and incentivize displayed orders in Tape B securities as well as order flow seeking to trade with such displayed orders. Moreover, increases in displayed liquidity of Tape B securities would contribute to the public price discovery process which would benefit all market participants and protect investors and the public interest.
As it has stated repeatedly, IEX believes that the existing access fee level of $0.0030 per share set by Rule 610 of Regulation NMS
Accordingly, IEX has designed this proposed rebate to attract and incentivize displayed order flow in Tape B securities as well as order flow seeking to trade with displayed order flow in Tape B securities. Moreover, increases in displayed liquidity of Tape B securities would contribute to the public price discovery process which would benefit all market participants and protect investors and the public interest.
The Exchange believes that the proposed fee structure for providing and removing displayed liquidity in Tape B securities is reasonable and consistent with the Act. Specifically, the Exchange believes that for securities that trade at or above $1.00 per share, it is reasonable to provide an increased rebate of $0.0014 per share for providing displayed liquidity in Tape B securities and to increase the fee for removing displayed liquidity in Tape B securities from $0.0010 per share to $0.0020 per share, which is designed to keep IEX's displayed trading prices for Tape B securities competitive with those of other exchanges.
Further, IEX believes that it is reasonable and consistent with the Act not to modify the fees charged to D-Peg, FM-Peg, M-Peg, and P-Peg orders that remove displayed liquidity (except for M-Peg and FM-Peg orders with a Trade Now instruction that remove displayed liquidity from an incoming Post Only order), even if it is in a Tape B security. As discussed in the Purpose section, these four order types are designed to interact with non-displayed liquidity, but in unexpected circumstances can trade with displayed liquidity. IEX understands that, in general, Members seek fee determinism,
However, if an incoming Post Only
Correspondingly, IEX believes that it is reasonable and consistent with the Act to modify the fees charged to M-Peg and FM-Peg orders with a Trade Now instruction that remove displayed liquidity from an incoming Post Only order in a Tape B security. As discussed in the Purpose section, the Member who included a Trade Now instruction on its M-Peg or FM-Peg order specified its willingness to match with incoming Post Only orders, and thus indicated its willingness to pay the $0.0020 per share fee IEX will charge for taking displayed liquidity in Tape B securities.
The Exchange also believes that it is reasonable and consistent with the Act not to modify its displayed fees for sub-dollar executions to synchronize those fees with the proposed fees for executions at or above $1.00 per share. The Exchange believes that the existing fee structure for such executions continues to be reasonably designed to incentivize displayed order flow (and orders seeking to trade with displayed order flow) in such securities.
Further, IEX believes that it is reasonable and consistent with the Act not to change the fees applicable to the execution of Retail orders that remove liquidity, which will continue to execute for free. In this regard, the Exchange believes that the existing fee structure continues to be reasonably designed to incentivize the entry of Retail orders and Retail Liquidity Provider orders, and notes that the Commission, in approving IEX's Retail Price Improvement Program, acknowledged the value of exchanges' offering incentives to attract both retail investor orders and orders specifically designated to execute only with retail orders.
The Exchange further believes that the proposed fee change is consistent with the Act's requirement that the Exchange provide for an equitable allocation of
First, the fees for adding and removing displayed liquidity in Tape B securities will apply on a per share basis in an equal and nondiscriminatory manner to all Members, without regard to the volume of orders submitted by a Member or other factors.
Second, because the fees would apply on a flat, per share basis—like IEX's existing fees—they will continue to be fully deterministic, in that a Member will be able to determine the Exchange fees for each execution in a Tape B security. IEX believes this aspect of its fee proposal will assist all Members in making decisions about routing of orders without the uncertainties associated with volume tiers or other requirements that cannot be determined at the time of the trade. IEX notes that applying fees in this way is consistent with the purpose of the Commission's proposal to require that exchange fees be set in a manner such that the amount of a fee or rebate related to each trade is determinable at the time of the trade.
Additionally, the Exchange believes that it is reasonable to add footnote 2 to the Fee Codes section of the Fee Schedule to clarify that only Fee Code Combinations that include new Fee Code B are for executions of Tape B securities. Adding this footnote will avoid any potential confusion as to the applicable fees and rebates for each execution.
Finally, to the extent the proposed change is successful in incentivizing the entry and execution of displayed orders on IEX, such greater liquidity will benefit all market participants by increasing price discovery and price formation (on IEX and market-wide) as well as market quality and execution opportunities.
IEX believes that the proposed rule change will not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposed fee change is designed to enhance IEX's competitiveness with other venues, as described in the Statutory Basis section. In this context, the Exchange does not believe that the proposed fees would burden competition on competing venues or their participants. Moreover, as noted in the Statutory Basis section, the Exchange believes that the proposed changes do not raise any new or novel issues not already considered by the Commission.
The Exchange believes that the proposed rule change will not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because, while different fees are assessed in some circumstances, these different fees are not based on the type of Member entering the orders that match or on the volume of orders submitted by a Member but on the type of order entered or if the security at issue is a Tape B security, and all Members can submit any type of order for any type of security and will be subject to the same fee for that type of order and security. IEX believes that applying a flat, per share fee or rebate for each type of order avoids imposing a burden on competition by ensuring that individual Members do not gain a competitive advantage over other Members based solely on their size or volume of orders they are able to submit to the Exchange. Further, the proposed fee changes are designed to encourage market participants to bring increased order flow to the Exchange, which benefits all market participants.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
Pursuant to the provisions of Section 19(b)(1) under the Act,
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend IEX Rule 11.190(g)(2) to incrementally optimize the proprietary mathematical calculation used to make quote instability determinations for certain orders (
The Exchange also proposes to correct two cross-reference errors and one typographical error in the rule text defining the CQI 2.
When CQI 2 generates a quote instability determination (
Relatedly, D-Limit orders priced at or more aggressively than the quote instability determination price level (“CQI Price”) are re-priced when CQI 2 is on.
Once the price of a D-Limit order that has been posted to the Order Book is automatically adjusted by the System to its effective limit price, the order will continue to be ranked and displayed (in the case of a displayed order) at the adjusted price,
The Exchange has made incremental changes to optimize and enhance the effectiveness of CQI 1 in determining whether a crumbling quote exists three times since Exchange launch
IEX introduced CQI 2 into its System on March 31, 2023 (
CQI 2 utilizes real time relative quoting activity of certain Protected Quotations
CQI 2 includes four categories of rules designed to predict whether the Protected NBB or Protected NBO is unstable, as follows:
• Disappearing bids (or offers)—This category includes four rules that focus on whether one or more of the Signal Exchanges is no longer disseminating a bid or offer at the Signal Best Bid
• Recent changes in quote size—This category includes two rules that focus on whether there is an imbalance in the size of bids and offers at the Signal Best Bid or Signal Best Offer;
• Locked or crossed market—This category includes one rule that focuses on situations where the Signal Best Bid and Signal Best Offer are locked or crossed;
• Quotation Changes—This category includes two rules that focus on changes to the Signal Best Bid or Signal Best Offer.
On a security-by-security basis, if the specified conditions of any of the quote instability rules are met, then the rule is deemed to be “True” for that security. Each rule also must be active before it can trigger a quote instability determination. When one or more quote instability rules is deemed to be True and any of such rules are active, the System will treat the quote as unstable.
For CQI 2, the Exchange maintains an activation value (“Activation Value”) for each quote instability rule, which is used to determine if each rule is active. Each rule's Activation Value is computed (on a security-by-security basis for both the Bid side and the Offer side) in real time as a function of the number of times the quote moves to a less aggressive price within the two milliseconds following the time the rule was True and the total number of times the rule was True. Whenever the Activation Value for a given rule exceeds a fixed predetermined activation threshold specific to that rule (“Activation Threshold”),
The Activation Value and Activation Threshold computations are designed to optimize the overall accuracy of the quote instability determinations by providing a mechanism to turn off a particular rule when market conditions are such that it is relatively less accurate in predicting a crumbling quote. IEX believes that utilizing Activation Thresholds is a useful innovation because it enables the use of rules that can be highly predictive in certain market conditions but not in others. The Activation Thresholds are tailored for each rule based on the rule's expected general accuracy in predicting a crumbling quote, based on IEX's market data analysis, so that a rule that has a higher potential to be less accurate has a higher activation threshold burden to meet. The Activation Thresholds are designed to enable increased coverage for CQI 2 by enabling more frequent triggers with accuracy control safeguards.
The Exchange utilizes an initial activation value of 0.50 for all rules at the start of the Regular Market Session,
Whenever a rule is True, the System evaluates if its Activation Value exceeds its Activation Threshold, regardless of whether the rule is active. If a rule is True and its Activation Value exceeds its Activation Threshold, the rule is active and will trigger the System to treat the relevant quote as unstable. If a rule is True but its Activation Value does not exceed its Activation Threshold, the rule is inactive, and it will not trigger the System to treat the relevant quote as unstable. If one or more rules are True, and if any one of such rules has an Activation Value that exceeds the rule's Activation Threshold, the System will treat the relevant quote as unstable. The System continues to update the Activation Value for rules that are inactive, and if the Activation Value subsequently exceeds the rule's Activation Threshold, the System will reactivate the rule.
IEX believes that these Activation Thresholds provide a dynamic performance evaluation methodology that is designed to optimize the frequency and accuracy of the quote instability calculation, by enabling IEX to utilize a broader array of rules that may be predictive of a crumbling quote in certain market conditions but not others.
IEX Rule 11.190(g)(3) provides that IEX reserves the right to modify the quote instability calculations as appropriate, subject to a filing of a proposed rule change with the SEC. Pursuant to this provision, IEX identified a modification to CQI 2 that it believes will enhance its effectiveness, as described below.
IEX conducted an analysis of the efficacy of CQI 2 in predicting whether a crumbling quote would occur, by reviewing randomly selected market data from the second half of 2023 and the first quarter of 2024. These results were then validated by testing different randomly selected dates from the same time period. Based upon this analysis, IEX proposes to make an incremental change to the CQI 2 Activation Value calculation process, which is designed to enhance CQI 2's accuracy by better reflecting market conditions. Specifically, the Exchange is proposing to extend the amount of time the System waits after a quote instability rule is True to assess if the quote moved to a less aggressive price. Currently, the System waits two milliseconds following the time a quote instability rule was True to assess whether the quote instability rule accurately predicted that the next price change would be to a less aggressive price. IEX proposes to modify IEX Rule 11.190(g)(2)(D)(ii), so that the System would wait up to one second after a quote instability rule is True to assess if the next price change is to a less aggressive price (hereafter the “CQI 2 Update”). If the next price change occurs within one second after a quote instability rule is True and is to a less aggressive price, the System would add .06 to that rule's previous Activation Value. However, if one second passes from the time that a quote instability rule's conditions are met with no price change, or if the next price change was to a more aggressive price, then the System will not update that quote instability rule's Activation Value.
In deciding to propose increasing the interval for the Activation Value calculation process to assess if the next price change was to a less aggressive price (from two milliseconds to one second), the Exchange considered that a predicted price change may take more than two milliseconds to occur for several reasons. For example, large reserve orders might take more than two milliseconds to fully exhaust the reserve volume allowing a price change to occur. Additionally, periods of relatively higher market volume (or bursts of market data) can impact the time it takes for price changes to materialize because of increased time for markets to process incoming orders and executions. During periods of market volatility, trading functions such as order processing, order matching, and the publishing of market data may be delayed due to higher message rates (which are correlated with the Exchange making quote instability determinations). Significantly, during these time periods of increased market activity and volatility, latency arbitrage strategies have an opportunity to be more prevalent because there are more opportunities to react to market volatility to take advantage of resting orders.
In light of the foregoing, IEX believes a modest increase of the time used in the Activation Value calculation process is a narrowly tailored approach to enhance the efficacy of CQI 2 in predicting an imminent quote change to a price adverse to a resting order.
IEX's market data analysis
Thus, IEX believes that the CQI 2 Update will incrementally enhance the existing protection provided by D-Limit orders by providing greater coverage (
Similarly, IEX believes that the CQI 2 Update will incrementally enhance the existing protection CQI 2 offers pegged orders by providing greater coverage (
IEX believes that this proposed minor change in methodology for the calculation of Activation Values would increase CQI 2's efficacy by better reflecting the market activity in a particular security, as described above. Specifically, IEX believes that it is appropriate to provide slightly more time to determine if the next price change is adverse (
Accordingly, based on this analysis, the Exchange believes that extending the time period used to calculate Activation Value changes to one second is a narrowly tailored approach that would incrementally increase the effectiveness of CQI 2 in predicting whether a crumbling quote will occur.
IEX also proposes to correct two internal cross-reference errors in IEX Rule 11.190(g)(2). Specifically, IEX proposes to modify the cross reference in IEX Rule 11.190(g)(2)(B) to refer to IEX Rule 11.190(g)(2)(C), instead of IEX Rule 11.190(g)(1)(C), and to modify the cross reference in IEX Rule 11.190(g)(2)(D)(i) to refer to IEX Rule 11.190(g)(2)(A), instead of IEX Rule 11.190(g)(1)(A). While these two cross-references cite to the rule provisions for CQI 1 instead of CQI 2, IEX notes that the context of the rule text mitigates any possible confusion since each is within the rule provisions describing CQI 2. Moreover, the third paragraph of IEX Rule 11.190(g), which provides a summary description of CQI 2, accurately describes the functionality that is described in the two rule provisions containing cross-reference errors.
Finally, IEX proposes to make a typographical correction to IEX Rule 11.190(g)(2)(B)(vii) by adding a missing period to the end of the text.
The Exchange will announce the implementation date of the proposed rule change by Trading Alert at least ten business days in advance of such implementation date and within 90 days of effectiveness of this proposed rule change.
IEX believes that the proposed rule change is consistent with Section 6(b)
Additionally, the Exchange believes that the proposed rule change may result in more and larger sized displayed and non-displayed D-Limit orders and CQI 2 enhanced pegged orders being entered on IEX as a result of the improved coverage and continued accuracy of CQI 2. To the extent more orders are entered, the increased liquidity would benefit all IEX members and their customers. And to the extent that more displayed D-Limit orders are entered, price discovery and price formation will be enhanced on IEX and in the market generally to the benefit of all IEX Members and market participants. Furthermore, the Exchange notes that all Members and their customers are eligible to use D-Limit orders and CQI 2 enhanced pegged orders, and therefore all Members and their customers are eligible to benefit from the proposed enhanced protections against adverse selection in the CQI 2 Update. Thus, the Exchange believes that application of the rule change is equitable and not unfairly discriminatory.
Additionally, the Exchange notes that the existing CQI 2 is a narrowly tailored fixed formula specified transparently in IEX rules, that was previously approved by the SEC.
Also, IEX Rule 11.190(g)(3) specifically contemplates that the Exchange will periodically modify the quote instability calculations as appropriate, and the proposed rule change is consistent with this provision.
Furthermore, the Exchange believes that the proposed corrections of the two internal cross-reference errors in IEX Rule 11.190(g)(2)(B) and IEX Rule 11.190(g)(2)(D)(i) would remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed changes are designed to update internal rule references. As noted in the Purpose section, the overall context of CQI 2's rule text mitigates any possible confusion attributable to the erroneous cross-references. Nevertheless, the Exchange believes that Users would benefit from the increased clarity of correct cross-reference citations, thereby reducing potential confusion and ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the Exchange's rules.
Additionally, IEX believes that the proposed addition of a period at the end of IEX Rule 11.190(g)(2)(B)(vii) is consistent with Section 6(b)(5) of the Act because it will eliminate any confusion regarding IEX rules by correcting an inadvertent typographical error without changing the substance of such rule.
IEX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, as discussed in the Statutory Basis section, the proposal is designed to enhance competition by incentivizing additional liquidity.
With regard to intra-market competition, the proposed change to CQI 2 would apply equally to all Members on a fair, impartial and nondiscriminatory basis without imposing any new burdens on the Members because D-Limit is an optional order type, and CQI 2 is one of two choices of CQI that Members may apply to their eligible pegged orders. The Commission has already approved CQI 2.
With regard to inter-market competition, other exchanges are free to adopt similar quote instability calculations subject to the SEC rule filing process. In this regard, the Exchange notes that NYSE American LLC until recently had a “discretionary pegged order type”, see former NYSE American LLC Rule 7.31E(h)(3)(D), which copied an earlier iteration of the Exchange's quote instability calculation.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not:
(i) significantly affect the protection of investors or the public interest;
(ii) impose any significant burden on competition; and
(iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 2, 2024, the Financial Industry Regulatory Authority, Inc. (“FINRA”) 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”)
The proposed rule change was published for public comment in the
The Commission is publishing this order pursuant to Section 19(b)(2)(B) of the Exchange Act
FINRA Rule 3240 generally prohibits, with exceptions, registered persons from borrowing money from, or lending money to, their customers. The rule has five tailored exceptions,
The proposed rule change would amend the title of FINRA Rule 3240 from “Borrowing From or Lending to Customers” to “Prohibition on Borrowing From or Lending to Customers,” and change the title of Rule
The proposed rule change would also make the following substantive changes to the general prohibition.
The proposed rule change would amend Rule 3240(a) to clarify that the rule's general requirements concerning borrowing and lending arrangements—including the general prohibition—apply to arrangements that pre-exist a new broker-customer relationship.
The proposed rule change would extend the rule's limitations to borrowing or lending arrangements entered into within six months after a broker-customer relationship terminates.
The proposed rule change would extend the rule's requirements to borrowing or lending arrangements that involve similar conflicts as ones presented by arrangements directly between registered persons and their customers.
The proposed rule change would add Rule 3240.03 (Owner-Financing Arrangements) to state that, for purposes of Rule 3240, “borrowing or lending arrangements include owner-financing arrangements.”
Currently, one exception to Rule 3240's general prohibition is for borrowing or lending arrangements with a customer who is a member of the registered person's immediate family.
The proposed rule change would modernize the “immediate family” definition.
Currently, Rule 3240 provides an exception to the rule's general prohibition for arrangements based on a “personal relationship with the customer, such that the loan would not have been solicited, offered, or given had the customer and the registered person not maintained a relationship outside of the broker-customer relationship” (the “personal relationship exception”).
In addition to narrowing the personal relationship and business relationship exceptions, the proposed rule change would add new Rule 3240.04 (Close Personal Relationships; Business Relationships), which would provide factors for evaluating whether a borrowing or lending arrangement is based on a close personal relationship or a business relationship. The proposed factors would include, but would not be limited to, “when the relationship began, its duration and nature, and any facts suggesting that the relationship is not bona fide or was formed with the purpose of circumventing the purpose of Rule 3240.”
Currently, Rule 3240(b) contains notification and approval requirements for borrowing or lending arrangements within the five exceptions, which vary depending on which exception applies.
Current Rule 3240(b)(1)(A) provides that a registered person shall notify the member of borrowing or lending arrangements made under the personal relationship exception,
Further, the proposed rule change would amend Rule 3240(b)(1) to clarify that it also would apply to pre-existing arrangements. Specifically, proposed Rule 3240(b)(1)(B) would require registered persons, prior to the initiation of a broker-customer relationship at the member with a person with whom the registered person has an existing borrowing or lending arrangement, to notify the member in writing of existing arrangements within the registered persons, personal relationship and business relationship exceptions and obtain the member's approval in writing of the broker-customer relationship.
Current Rule 3240(b)(2) provides, in pertinent part, that a member's written procedures may indicate that registered persons are not required to notify the member or receive member approval of arrangements within the immediate family exception.
Current Rule 3240(b)(3) provides, in pertinent part, that a member's written procedures may indicate that registered persons are not required to notify the member or receive member approval of arrangements within the financial institution exception,
Currently, Rule 3240 does not specify that notice must be given in writing, and the record-retention provision in Rule 3240.01 requires members only to preserve written approvals.
The proposed rule change also would add new Rule 3240.06 (Obligations of Member Receiving Notice). Proposed Rule 3240.06 would provide that upon receiving written notice under Rule 3240, the member “shall perform a reasonable assessment of the risks created by the borrowing or lending arrangement with a customer, modification to the borrowing or lending arrangement with a customer, or existing borrowing or lending arrangement with a person who seeks to be a customer of the registered person.”
(1) any potential conflicts of interest in the registered person being in a borrowing or lending arrangement with a customer;
(2) the length and type of relationship between the customer and registered person;
(3) the material terms of the borrowing or lending arrangement;
(4) the customer's or the registered person's ability to repay the loan;
(5) the customer's age;
(6) whether the registered person has been a party to other borrowing or lending arrangements with customers;
(7) whether, based on the facts and circumstances observed in the member's business relationship with the customer, the customer has a mental or physical impairment that renders the customer unable to protect his or her own interests;
(8) any disciplinary history or indicia of improper activity or conduct with respect to the customer or the customer's account (
(9) any indicia of customer vulnerability or undue influence of the registered person over the customer.
FINRA also stated that it would expect a member to try to discuss the arrangement with the customer, as part of the member's reasonable assessment of the risks.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Exchange Act to determine whether the proposed rule change should be approved or disapproved.
Pursuant to Section 19(b)(2)(B) of the Exchange Act, the Commission is providing notice of the grounds for disapproval under consideration.
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposed rule change. In particular, the Commission invites the written views of interested persons concerning whether the proposed rule change is consistent with the Exchange Act and the rules thereunder.
Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change should be approved or disapproved by May 15, 2024. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by May 29, 2024.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Public notice.
Proposal to extend the
Allison Davis Lehmann, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: (771) 204-4765;
Pursuant to the authority vested in the Assistant Secretary of State for Educational and Cultural Affairs, and pursuant to 19 U.S.C. 2602(f)(1), an extension of the
A copy of the
Public notice.
Proposal to extend the
Virginia Herrmann, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: (202) 728-0533;
Pursuant to the authority vested in the Assistant Secretary of State for Educational and Cultural Affairs, and pursuant to 19 U.S.C. 2602(f)(1), an extension of the
A copy of the
The Department of State announces the location, dates, times, and agenda for the next meeting of the Cultural Property Advisory Committee (“the Committee”).
The Committee will meet virtually from June 4-6, 2024, from 9 a.m. to 5 p.m. (EDT).
Allison Davis, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: (771) 204-4765; (
The Assistant Secretary of State for Educational and Cultural Affairs calls a meeting of the Cultural Property Advisory Committee (“the Committee”) in accordance with the Convention on Cultural Property Implementation Act (19 U.S.C. 2601-2613) (“the Act”). A portion of this meeting will be closed to the public pursuant to 5 U.S.C. 552b(c)(9)(B) and 19 U.S.C. 2605(h).
☐
☐
☐
Public notice.
Notice of receipt of request from Ukraine for cultural property protection.
Chelsea Freeland, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: (771) 204-6344;
The Government of Ukraine made a request to the Government of the United States on March 5, 2024, under Article 9 of the 1970 UNESCO
Tennessee Valley Authority (TVA).
Renewal of Federal Advisory Committee.
Pursuant to the Federal Advisory Committee Act (FACA), the TVA Board of Directors has renewed the Regional Resource Stewardship Council (RRSC) charter for an additional fifteen-month period.
Bekim Haliti,
Pursuant to FACA and its implementing regulations, and following consultation with the Committee Management Secretariat, General Services Administration (GSA) in accordance with 41 CFR 102-3.60(a), notice is hereby given that the RRSC has been renewed for a fifteen-month period. The RRSC will provide advice to TVA on its issues affecting natural resources and stewardship activities. The RRSC was originally established in 2000 to advise TVA on its natural resources and stewardship activities and the priority to be placed among competing objectives and values. It has been determined that the RRSC continues to be needed to provide an additional mechanism for public input regarding natural resources and stewardship issues. The charter can be found at
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by May 24, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Sandra L. Ray by email at:
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
Notice.
The FHWA is announcing that a Notice of Funding Opportunity (NOFO) for the Active Transportation Infrastructure Investment Program (ATIIP) is now available.
Applications must be received by Monday, June 17, 2024.
All application materials should be submitted electronically through grants.gov. Refer to Catalog of Federal Domestic Assistance Number: 20.205.
Hector Santamaria, Agreement Officer,
An electronic copy of this document may be downloaded from the Office of the Federal Register's home page at:
Section 11529 of the Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure Investment and Jobs Act (Pub. L. 117-58, Nov. 15, 2021), established ATIIP. The purpose of ATIIP is to provide discretionary grants to eligible entities to plan, design, and construct eligible projects that provide safe and connected active transportation infrastructure in an active transportation network or active transportation spine (BIL sec. 11529(a)).
The ATIIP projects will help improve the safety, efficiency, and reliability of active transportation networks and communities; improve connectivity between active transportation modes and public transportation; enhance the resiliency of on- and off-road active transportation infrastructure and help protect the environment; and improve quality of life in disadvantaged communities through the delivery of connected active transportation networks and expanded mobility opportunities.
The ATIIP grants will allow communities to identify, prioritize, and implement improvements to the largest barriers to safe, accessible, and equitable pedestrian and bicycle network connectivity through the development of infrastructure that will provide substantial additional opportunities for walking and bicycling.
The FHWA is publishing this notice pursuant to section 11529 of BIL to notify stakeholders of the availability of the NOFO located on
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, this notice announces that FRA is forwarding the Information Collection Request (ICR) summarized below to the Office of Management and Budget (OMB) for review and comment. The ICR describes the information collection and its expected burden. On February 21, 2024, FRA published a notice providing a 60-day period for public comment on the ICR. FRA received no comments in response to the notice.
Interested persons are invited to submit comments on or before May 24, 2024.
Written comments and recommendations for the proposed ICR should be sent within 30 days of publication of this notice to
Ms. Arlette Mussington, Information Collection Clearance Officer, at email:
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages.
Before OMB decides whether to approve this proposed collection of information, it must provide 30 days' notice for public comment. Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published. 44 U.S.C. 3507(b)-(c); 5 CFR 1320.12(d);
Comments are invited on the following ICR regarding: (1) whether the information collection activities are necessary for FRA to properly execute its functions, including whether the information will have practical utility; (2) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (3) ways for
The summary below describes the ICR that FRA will submit for OMB clearance as the PRA requires:
The information collected under this rule is used by FRA to ensure railroads operating camp cars comply with all the requirements mandated in this regulation to protect the health and safety of camp car occupants.
FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information that does not display a currently valid OMB control number.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides the public with notice that, on April 5, 2024, Alaska Railroad (ARR) submitted a request for amendment (RFA) to its FRA-approved Positive Train Control Safety Plan (PTCSP). As this RFA involves a request for FRA's approval of proposed material modifications to an FRA-certified positive train control (PTC) system, FRA is publishing this notice and inviting public comment on the railroad's RFA to its PTCSP.
FRA will consider comments received by May 14, 2024. FRA may consider comments received after that date to the extent practicable and without delaying implementation of valuable or necessary modifications to a PTC system.
Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, telephone: 816-516-7168, email:
In general, title 49 United States Code (U.S.C.) section 20157(h) requires FRA to certify that a host railroad's PTC system complies with title 49 Code of Federal Regulations (CFR) part 236, subpart I, before the technology may be operated in revenue service. Before making certain changes to an FRA-certified PTC system or the associated FRA-approved PTCSP, a host railroad must submit, and obtain FRA's approval of, an RFA to its PTCSP under 49 CFR 236.1021.
Under 49 CFR 236.1021(e), FRA's regulations provide that FRA will publish a notice in the
Interested parties are invited to comment on ARR's RFA to its PTCSP by submitting written comments or data. During FRA's review of this railroad's RFA, FRA will consider any comments or data submitted within the timeline specified in this notice and to the extent practicable, without delaying implementation of valuable or necessary modifications to a PTC system.
In accordance with 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Pipeline and Hazardous Materials Safety Administration (PHMSA); U.S. Department of Transportation (DOT).
Notice.
PHMSA is publishing this notice to solicit public comments on a request for special permit received from the Southern Natural Gas Company, LLC (SNG). The special permit request is seeking relief from compliance with certain requirements in the Federal pipeline safety regulations. At the conclusion of the 30-day comment period, PHMSA will review the comments received from this notice as part of its evaluation to grant or deny the special permit request.
Submit any comments regarding this special permit request by May 24, 2024.
Comments should reference the docket number for this special permit request and may be submitted in the following ways:
•
•
•
•
There is a privacy statement published on
PHMSA received a special permit request from SNG, a subsidiary of Kinder Morgan, on December 27, 2023, seeking a waiver from the Federal pipeline safety regulations in 49 CFR 192.611(a), (d), and 192.619(a), where a gas transmission pipeline segment have undergone changes from a Class 1 to Class 3 location.
The Cypress Line Pipeline segment is a 24-inch diameter natural gas transmission pipeline, 0.176 miles in length, located in Chatham County, Georgia. The maximum allowable operating pressure for the Cypress Line Pipeline segment is 1,250 pounds per square inch gauge. This special permit is being requested to allow SNG to operate the Cypress Line Pipeline Segment 727 in a Class 3 location at its current operating pressure by implementing enhanced integrity management procedures in lieu of replacing pipe or lowering the operating pressure, as required by part 192.
The special permit request, proposed special permit with conditions, and draft environmental assessment (DEA) for the above listed SNG pipeline segment are available for review and public comment in Docket Number PHMSA 2023-0136. PHMSA invites interested persons to review and submit comments on the special permit request, proposed special permit with conditions, and DEA in the docket. Please submit comments on any potential safety, environmental, and other relevant considerations implicated by the special permit request. Comments may include relevant data.
Before issuing a decision on the special permit request, PHMSA will evaluate all comments received on or before the comments closing date. Comments received after the closing date will be evaluated if it is possible to do so without incurring additional expense or delay. PHMSA will consider each relevant comment it receives in making its decision to grant or deny this special permit request.
Pipeline and Hazardous Materials Safety Administration
Notice of 2024 public meetings.
This notice announces that PHMSA's Office of Hazardous Materials Safety will host three public meetings during 2024 in advance of certain international meetings. The first meeting will be held in preparation of the 64th session of the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods (UNSCOE TDG) scheduled for June 24-July 3, 2024, in Geneva, Switzerland. The second meeting will be held in preparation of the International Civil Aviation Organization's (ICAO) Dangerous Goods Panel (DGP) Working Group 24 (WG/24) tentatively scheduled for October 2024 in Montreal, Canada. The third meeting will be held in preparation of the 65th session of the UNSCOE TDG scheduled for November 25-December 3, 2024, in Geneva, Switzerland. For each of these meetings, PHMSA will solicit public input on current proposals.
Steven Webb or Aaron Wiener, PHMSA, U.S. Department of Transportation, by phone at 202-366-8553.
This notice is published under the authority of Federal Hazardous Materials Transportation Law (49 U.S.C. 5101
The purpose of PHMSA's public meetings held in advance of certain international meetings is to allow the public to give input on the current proposals being considered by the international standards setting bodies.
The 64th and 65th sessions of the UNSCOE TDG will represent the third and fourth meetings scheduled for the 2023-2024 biennium. The UNSCOE TDG will consider proposals for the 24th Revised Edition of the
The ICAO DGP-WG/24 meeting will represent the first meeting of the 2024-2025 biennium. The ICAO DGP will consider proposals for the 2027-2028 edition of the
Signed in Washington, DC.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons and vessels that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons and these vessels are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Bradley T. Smith, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
A. On February 23, 2024, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons subject to U.S. jurisdiction are blocked under the relevant sanctions authorities listed below.
B. On February 23, 2024, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following vessels subject to U.S. jurisdiction are blocked under the relevant sanctions authority listed below.
C. On April 18, 2024, OFAC updated the entry on the SDN List for the following persons, whose property and interests in property subject to U.S. jurisdiction continue to be blocked under the relevant sanctions authority listed below.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of two entities and thirteen vessels that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons and this vessel are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See Supplementary Information section for effective date(s).
OFAC: Bradley Smith, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or Assistant Director for Compliance, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On April 4, 2024, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons and vessel subject are blocked under the relevant sanctions authority listed below.
1. ANTHEA (D6A3314) Crude Oil Tanker Comoros flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9281683; MMSI 620999315 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
2. BOREAS (D6A3315) Crude Oil Tanker Comoros flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9248497; MMSI 620999316 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
3. HECATE (D6A3379) Crude Oil Tanker Comoros flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9233753; MMSI 620999379 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
4. BAXTER (V3TF5) Oil Products Tanker Belize flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9282522; MMSI 312513000 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
5. CALYPSO GAS (V2YC2) LPG Tanker Antigua and Barbuda flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9131101; MMSI 304563000 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
6. CAPE GAS (D6A2739) LPG Tanker Comoros flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9002491; MMSI 620739000 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
7. DEMETER (HPGV) Oil Products Tanker Panama flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9258674; MMSI 370921000 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
8. ELSA (V3RZ8) Crude Oil Tanker Belize flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9256468; MMSI 312038000 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
9. GLAUCUS (D6A3421) Crude Oil Tanker Comoros flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9337389; MMSI 620999422 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
10. HEBE (D6A3378) Crude Oil Tanker Comoros flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9259185; MMSI 620999378 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
11. MERAKI (V2YB7) Crude Oil Tanker Antigua and Barbuda flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
12. OCEANUS GAS (D6A3372) LPG Tanker Comoros flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9397080; MMSI 620999373 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
13. OUREA (E5U5002) LPG Tanker Cook Islands flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9350422; MMSI 518999021 (vessel) [SDGT] (Linked To: OCEANLINK MARITIME DMCC).
Identified as property in which OCEANLINK MARITIME DMCC, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
On April 4, 2024, OFAC updated the entry on the SDN List for the following vessel, which continues to be blocked under the relevant sanctions authorities listed below.
1. YOUNG YONG Oil Products Tanker Djibouti flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9194127; MMSI 621819067 (vessel) [SDGT] (Linked To: TECHNOLOGY BRIGHT INTERNATIONAL LIMITED).
SAINT LIGHT (a.k.a. STELLAR ORACLE; a.k.a. YOUNG YONG) (8RAR1) Oil Products Tanker Guyana flag; Secondary sanctions risk: section 1(b) of Executive Order 13224, as amended by Executive Order 13886; Vessel Registration Identification IMO 9194127; MMSI 750514000 (vessel) [SDGT] (Linked To: TECHNOLOGY BRIGHT INTERNATIONAL LIMITED).
Identified as property in which TECHNOLOGY BRIGHT INTERNATIONAL LIMITED, a person whose property and interests in property are blocked pursuant to E.O. 13224, as amended, has an interest.
Civil Rights Division, Department of Justice.
Final rule.
The Department of Justice (“Department”) issues its final rule revising the regulation implementing title II of the Americans with Disabilities Act (“ADA”) to establish specific requirements, including the adoption of specific technical standards, for making accessible the services, programs, and activities offered by State and local government entities to the public through the web and mobile applications (“apps”).
Rebecca B. Bond, Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY). This is not a toll-free number. Information may also be obtained from the Department's toll-free ADA Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY). You may obtain copies of this rule in an alternative format by calling the ADA Information Line at (800) 514-0301 (voice) or 1-833-610-1264 (TTY). This rule is also available on
Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity.
Public entities are increasingly providing the public access to government services through their web content and mobile apps. For example, government websites and mobile apps often allow the public to obtain information or correspond with local officials without having to wait in line or be placed on hold. Members of the public can also pay fines, apply for State benefits, renew State-issued identification, register to vote, file taxes, obtain up-to-date health and safety resources, request copies of vital records, access mass transit schedules, and complete numerous other tasks via government websites. Individuals can perform many of these same functions on mobile apps. Often, however, State and local government entities' web- and mobile app-based services are not designed or built accessibly and as a result are not equally available to individuals with disabilities. Just as stairs can exclude people who use wheelchairs from accessing government buildings, inaccessible web content and mobile apps can exclude people with a range of disabilities from accessing government services.
It is critical to ensure that individuals with disabilities can access important web content and mobile apps quickly, easily, independently, privately, and equally. Accessible web content and mobile apps help to make this possible. By allowing individuals with disabilities to engage more fully with their governments, accessible web content and mobile apps also promote the equal enjoyment of fundamental constitutional rights, such as rights with respect to speech, assembly, association, petitioning, voting, and due process of law.
Accordingly, the Department is establishing technical requirements to provide concrete standards to public entities on how to fulfill their obligations under title II to provide equal access to all of their services, programs, and activities that are provided via the web and mobile apps. The Department believes, and public comments have reinforced, that the requirements described in this rule are necessary to assure “equality of opportunity, full participation, independent living, and economic self-sufficiency” for individuals with disabilities, as set forth in the ADA.
On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability.
The Department is the only Federal agency with authority to issue regulations under title II, part A, of the ADA regarding the accessibility of State and local government entities' web content and mobile apps. In addition, under Executive Order 12250, the Department is responsible for ensuring consistency and effectiveness in the implementation of section 504 across the Federal Government (aside from provisions relating to equal
Appendix D to 28 CFR part 35 provides a section-by-section analysis of the Department's changes to the title II regulation and the reasoning behind those changes, in addition to responses to public comments received on the notice of proposed rulemaking (“NPRM”).
In this final rule, the Department adds a new subpart H to the title II ADA regulation, 28 CFR part 35, that sets forth technical requirements for ensuring that web content that State and local government entities provide or make available, directly or through contractual, licensing, or other arrangements, is readily accessible to and usable by individuals with disabilities. Web content is defined by § 35.104 to mean the information and sensory experience to be communicated to the user by means of a user agent (
The Department adopts an internationally recognized accessibility standard for web access, the Web Content Accessibility Guidelines (“WCAG”) 2.1
In recognition of the challenges that small public entities may face with respect to resources for implementing the new requirements, the Department has staggered the compliance dates for public entities according to their total population.
In addition, the Department has set forth exceptions from compliance with the technical standard required under § 35.200 for certain types of content, which are described in detail below in the section-by-section analysis. If the content falls under an exception, that means that the public entity generally does not need to make the content conform to WCAG 2.1 Level AA.
As will be explained more fully, the Department has set forth five specific exceptions from compliance with the technical standard required under § 35.200: (1) archived web content; (2)
The final rule contains a series of other mechanisms that are designed to make it feasible for public entities to comply with the rule. The final rule makes clear in § 35.202 the limited circumstances in which “conforming alternate versions” of web content, as defined in WCAG 2.1, can be used as a means of achieving accessibility. As WCAG 2.1 defines it, a conforming alternate version is a separate version of web content that is accessible, up to date, contains the same information and functionality as the inaccessible web content, and can be reached in particular ways, such as through a conforming page or an accessibility-supported mechanism. However, the Department is concerned that WCAG 2.1 could be interpreted to permit a segregated approach and a worse experience for individuals with disabilities. The Department also understands that, in practice, it can be difficult to maintain conforming alternate versions because it is often challenging to keep two different versions of web content up to date. For these reasons, as discussed in the section-by-section analysis of § 35.202, conforming alternate versions are permissible only when it is not possible to make web content directly accessible due to technical or legal limitations. Also, under § 35.203, the final rule allows a public entity flexibility to show that its use of other designs, methods, or techniques as alternatives to WCAG 2.1 Level AA provides substantially equivalent or greater accessibility and usability of the web content or mobile app. Nothing in this final rule prohibits an entity from going above and beyond the minimum accessibility standards this rule sets out.
Additionally, the final rule in §§ 35.200(b)(1) and (2) and 35.204 explains that conformance to WCAG 2.1 Level AA is not required under title II of the ADA to the extent that such conformance would result in a fundamental alteration in the nature of a service, program, or activity of the public entity or in undue financial and administrative burdens.
The final rule also explains in § 35.205 the limited circumstances in which a public entity that is not in full compliance with the technical standard will be deemed to have met the requirements of § 35.200. As discussed further in the section-by-section analysis of § 35.205, a public entity will be deemed to have satisfied its obligations under § 35.200 in the limited circumstance in which the public entity can demonstrate that its nonconformance to the technical standard has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the public entity's web content or mobile app to access the same information, engage in the same interactions, conduct the same transactions, and otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities, in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use.
More information about these provisions is provided in the section-by-section analysis.
To estimate the costs and benefits associated with this rule, the Department conducted a FRIA. This analysis is required for significant regulatory actions under Executive Order 12866, as amended.
Comparing annualized costs and benefits of this rule, monetized benefits to society outweigh the costs. Net annualized benefits over the first 10 years following publication of this rule total $1.9 billion per year using a 3 percent discount rate and $1.5 billion per year using a 7 percent discount rate (Table 2). Additionally, beyond this 10-year period, benefits are likely to continue to accrue at a greater rate than costs because many of the costs are upfront costs and the benefits tend to have a delay before beginning to accrue.
To consider the relative magnitude of the estimated costs of this regulation, the Department compares the costs to revenues for public entities. Because calculating this ratio for every public entity would be impractical, the Department used the estimated average annualized cost compared to the average annual revenue by each public entity type. The costs for each public entity type and size are generally estimated to be below 1 percent of revenues (the one exception is small independent community colleges, for which the cost-to-revenue ratio is 1.05 percent and 1.10 percent using a 3 percent and 7 percent
The ADA and the Department's implementing regulation state that except as otherwise provided, the ADA shall not be construed to apply a lesser standard than title V of the Rehabilitation Act (29 U.S.C. 791) or its accompanying regulations.
The Department recognizes that entities subject to title II of the ADA may also be subject to other statutes that prohibit discrimination on the basis of disability. Compliance with the Department's title II regulation does not necessarily ensure compliance with other statutes and their implementing regulations. Title II entities are also obligated to fulfill the ADA's title I requirements in their capacity as employers,
Education is another context in which entities have obligations to comply with other laws imposing affirmative obligations regarding individuals with disabilities. The Department of Education's regulations implementing the Individuals with Disabilities Education Act (“IDEA”) and section 504 of the Rehabilitation Act include longstanding, affirmative obligations for covered schools to identify children with disabilities, and both require covered schools to provide a free appropriate public education.
The ADA broadly protects the rights of individuals with disabilities in important areas of everyday life, such as in employment (title I), State and local government entities' services, programs, and activities (title II, part A), transportation (title II, part B), and places of public accommodation (title III). The ADA requires newly designed and constructed or altered State and local government entities' facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities.
On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III),
The Department first articulated its interpretation that the ADA applies to websites of covered entities in 1996.
As with many other statutes, the ADA's requirements are broad and its implementing regulations do not include specific standards for every obligation under the statute. This has been the case in the context of web accessibility under the ADA. Because the Department had not previously adopted specific technical requirements for web content and mobile apps through rulemaking, public entities have not had specific direction on how to comply with the ADA's general requirements of nondiscrimination and effective communication. However, public entities still must comply with these ADA obligations with respect to their web content and mobile apps, including before this rule's effective date.
The Department has consistently heard from members of the public—including public entities and individuals with disabilities—that there is a need for additional information on how to specifically comply with the ADA in this context. In June 2003, the Department published a document entitled “Accessibility of State and Local Government websites to People with Disabilities,” which provides tips for State and local government entities on ways they can make their websites accessible so that they can better ensure that individuals with disabilities have equal access to the services, programs, and activities that are provided through those websites.
In March 2022, the Department released additional guidance addressing web accessibility for individuals with disabilities.
The Department's 2003 guidance on State and local government entities' websites noted that “an agency with an inaccessible website may also meet its legal obligations by providing an alternative accessible way for citizens to use the programs or services, such as a staffed telephone information line,” while also acknowledging that this is unlikely to provide an equal degree of access.
For example, State and local government entities' websites may allow members of the public to quickly review large quantities of information, like information about how to register for government services, information on pending government ordinances, or instructions about how to apply for a government benefit. Members of the public can then use government websites to promptly act on that information by, for example, registering for programs or activities, submitting comments on pending government ordinances, or filling out an application for a government benefit. A member of the public could not realistically accomplish these tasks efficiently over the phone.
Additionally, a person with a disability who cannot use an inaccessible online tax form might have to call to request assistance with filling out either online or mailed forms, which could involve significant delay, added costs, and could require providing private information such as banking details or Social Security numbers over the phone without the benefit of certain security features available for online transactions. A staffed telephone line also may not be accessible to someone who is deafblind, or who may have combinations of other disabilities, such as a coordination issue impacting typing and an audio processing disability impacting comprehension over the phone. Finally, calling a staffed telephone line lacks the privacy of looking up information on a website. A caller needing public safety resources, for example, might be unable to access a private location to ask for help on the phone, whereas an accessible website would allow users to privately locate resources. For these reasons, the Department does not now believe that a staffed telephone line—even if it is offered 24/7—provides equal opportunity in the way that an accessible website can.
The Department has previously pursued rulemaking efforts regarding web accessibility under title II. On July 26, 2010, the Department's advance notice of proposed rulemaking (“ANPRM”) entitled “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations” was published in the
On May 9, 2016, the Department followed up on its 2010 ANPRM with a detailed Supplemental ANPRM that was published in the
On December 26, 2017, the Department published a document in the
The Department is now reengaging in efforts to promulgate regulations establishing technical standards for web accessibility as well as mobile app accessibility for public entities. On August 4, 2023, the Department published an NPRM in the
As public comments have reinforced, public entities regularly use the web to offer services, programs, or activities to the public.
Many public entities use online resources to promote access to public benefits. People can use websites of public entities to file for unemployment or other benefits and find and apply for job openings. Applications for many Federal benefits, such as unemployment benefits and food stamps, are also available through State websites. Through the websites of State and local government entities, business owners can register their businesses, apply for occupational and professional licenses, bid on contracts to provide products and services to public entities, and obtain information about laws and regulations with which they must comply. The websites of many State and local government entities also allow members of the public to research and verify business licenses online and report unsavory business practices.
People also rely on public entities' websites to engage in civic participation. People can frequently watch local public hearings, find schedules for community meetings, or take part in live chats with government officials on the websites of State and local government entities. Many public entities allow voters to begin the voter registration process and obtain candidate information on their websites. Individuals interested in running for local public offices can often find pertinent information concerning candidate qualifications and filing requirements on these websites as well. The websites of public entities also include information about a range of issues of concern to the community and about how people can get involved in community efforts to improve the administration of government services.
Public entities are also using websites as an integral part of public education.
As public comments on the NPRM have reinforced, access to the web has become increasingly important as a result of the COVID-19 pandemic, which shut down workplaces, schools, and in-person services, and forced millions of Americans to stay home for extended periods.
While important for everyone during the pandemic, access to web-based services took on heightened importance for people with disabilities, many of whom face a greater risk of COVID-19 exposure, serious illness, and death.
As discussed at greater length below, many public entities' web content is not fully accessible, which often means that individuals with disabilities are denied equal access to important services, programs, or activities.
This rule also covers mobile apps because public entities often use mobile apps to offer their services, programs, or activities to the public. Mobile apps are software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets.
Millions of individuals in the United States have disabilities that can affect their use of the web and mobile apps.
Individuals who are blind or have low vision often confront significant barriers to accessing websites and mobile apps. For example, a study from the University of Washington analyzed approximately 10,000 mobile apps and found that many are highly inaccessible to individuals with disabilities.
Furthermore, many websites and mobile apps provide information visually, without features that allow screen readers or other assistive technology to retrieve the information so it can be presented in an accessible manner. A common barrier to accessibility is an image or photograph without corresponding text (“alternative text” or “alt text”) describing the image. Generally, a screen reader or similar assistive technology cannot “read” an image, leaving individuals who are blind with no way of independently knowing what information the image conveys (
In many instances, removing certain web content and mobile app accessibility barriers is neither difficult nor especially costly. For example, the addition of invisible attributes known as alt text or alt tags to an image helps orient an individual using a screen reader and allows them to gain access to the information on the website.
Public comments on the NPRM described the lack of independence, and the resulting lack of privacy, that can stem from accessibility barriers. These commenters noted that without full and equal access to digital spaces, individuals with disabilities must constantly rely on support from others to perform tasks they could complete themselves if the online infrastructure enabled accessibility. Commenters noted that when using public entities' inaccessible web content or mobile apps for interactions that involve confidential information, individuals with disabilities must forfeit privacy and independence to seek assistance. Commenters pointed out that constantly needing assistance from others not only impacts self-confidence and perceptions of self-worth, but also imposes a costly and burdensome “time tax” because it means that individuals with disabilities must spend more time and effort to gain access than individuals without disabilities.
Commenters also pointed out that accessible digital spaces benefit everyone. Just as the existence of curb cuts benefits people in many different scenarios—such as those using wheelchairs, pushing strollers, and using a trolley to deliver goods—accessible web content and mobile apps are generally more user friendly. For example, captioning is often used by individuals viewing videos in quiet public spaces and sufficient color contrast makes it generally easier to read text.
The web has changed significantly, and its use has become far more prevalent, since Congress enacted the ADA in 1990 and since the Department subsequently promulgated its first ADA regulations. Neither the ADA nor the Department's regulations specifically addressed public entities' use of web content and mobile apps to provide their services, programs, or activities. Congress contemplated, however, that the Department would apply title II, part A of the statute in a manner that would adjust over time with changing circumstances and Congress delegated authority to the Attorney General to promulgate regulations to carry out the ADA's mandate under title II, part A.
Since 1996, the Department has consistently taken the position that the ADA applies to the web content of State and local government entities. This interpretation comes from title II's application to “all services, programs, and activities provided or made available by public entities.”
Many organizations, however, have indicated that voluntary compliance with these accessibility guidelines has not resulted in equal access for individuals with disabilities; accordingly, they have urged the Department to take regulatory action to ensure web content and mobile app accessibility.
In light of the long regulatory history and the ADA's current general requirement to make all services, programs, and activities accessible, the Department expects that public entities have made strides to make their web content and mobile apps accessible since the 2010 ANPRM was published. Such strides have been supported by the availability of voluntary web content and mobile app accessibility standards, as well as by the Department's clearly stated position—supported by judicial decisions
The Department has brought enforcement actions to address web content and mobile app access, resulting in a significant number of settlement agreements with State and local government entities.
The Department believes, and public comments on the NPRM have reinforced, that adopting technical standards for web content and mobile app accessibility provides clarity to public entities regarding how to make accessible the services, programs, and activities that they offer via the web and mobile apps. Commenters have specifically indicated that unambiguous, consistent, and comprehensive standards will help resolve existing confusion around the technical requirements for accessibility on public entities' web content and mobile apps. Adopting specific technical standards for web content and mobile app accessibility also helps to provide individuals with disabilities with consistent and predictable access to the web content and mobile apps of public entities.
The Department has examined the likely economic and other effects of this final rule addressing the accessibility of web content and mobile apps, as required under applicable Executive Orders,
As discussed previously, the purpose of this rule is to revise the regulation implementing title II of the ADA in order to ensure that the services, programs, and activities offered by State and local government entities to the public via web content and mobile apps are accessible to individuals with disabilities. The Department is adopting specific technical standards related to the accessibility of the web content and mobile apps of State and local government entities and is specifying
The Department has carefully crafted this final rule to better ensure the protections of title II of the ADA, while at the same time doing so in an economically efficient manner. After reviewing the Department's assessment of the likely costs of this regulation, the Office of Management and Budget (“OMB”) has determined that it is a significant regulatory action within the meaning of Executive Order 12866, as amended. As such, the Department has undertaken a FRIA pursuant to Executive Order 12866. The Department has also undertaken a FRFA as specified in section 604(a) of the Regulatory Flexibility Act. The results of both of these analyses are summarized below. Lastly, the Department does not believe that this regulation will have any significant impact relevant to the Paperwork Reduction Act, the Unfunded Mandates Reform Act, or the federalism principles outlined in Executive Order 13132.
The Department has prepared a FRIA for this rulemaking. This rulemaking also contains a FRFA. The Department contracted with Eastern Research Group Inc. (“ERG”) to prepare this economic assessment. This summary provides an overview of the Department's economic analysis and key findings in the FRIA. The full FRIA will be made available at
Requiring State and local government entity web content and mobile apps to conform to WCAG 2.1 Level AA will result in costs for State and local government entities to remediate and maintain their web content and mobile apps to meet this standard. The Department estimates that 109,893 State and local government entity websites and 8,805 State and local government mobile apps will be affected by the rule. These websites and mobile apps provide services on behalf of and are managed by 91,489 State and local government entities that will incur these costs. These costs include one-time costs for familiarization with the requirements of the rule; testing, remediation, and operating and maintenance (“O&M”) costs for websites; testing, remediation, and O&M costs for mobile apps; and school course remediation costs. The remediation costs include both time and software components.
Initial familiarization, testing, and remediation costs of the rule are expected to occur over the first two or three years until compliance is required and are presented in Table 3 (two years for large governments and three years for small governments). Annualized recurring costs after implementation are shown in Table 4. These initial and recurring costs are then combined to show total costs over the 10-year time horizon (Table 5 and Table 6) and annualized costs over the 10-year time horizon (Table 7 and Table 8). Annualized costs over this 10-year period are estimated at $3.3 billion assuming a 3 percent discount rate and $3.5 billion assuming a 7 percent discount rate. This includes $16.9 billion in implementation costs accruing during the first three years (the implementation period), undiscounted, and $2.0 billion in annual O&M costs during the next seven years. All values are presented in 2022 dollars as 2023 data were not yet available.
Benefits will generally accrue to all individuals who access State and local government entity websites and mobile apps, and additional benefits will accrue to individuals with certain types of disabilities. The WCAG 2.1 Level AA standards for web content and mobile app accessibility primarily benefit individuals with vision, hearing, cognitive, and manual dexterity disabilities because accessibility standards are intended to address barriers that often impede access for people with these disability types. Using the U.S. Census Bureau's Survey of Income and Program Participation (“SIPP”) 2022 data, the Department estimates that 5.5 percent of adults in the United States have a vision disability, 7.6 percent have a hearing disability, 11.3 percent have a cognitive disability, and 5.8 percent have a manual dexterity disability.
The Department monetized benefits for both people with these disabilities and people without disabilities.
Annual and annualized monetized benefits of this rule are presented in Table 9, Table 10, and Table 11. Annual benefits, beginning once the rule is fully implemented, total $5.3 billion. Because individuals generally prefer benefits received sooner, future benefits need to be discounted to reflect the lower value due to the wait to receive them. OMB guidance states that annualized benefits and costs should be presented using real discount rates of 3 percent and 7 percent.
Comparing annualized costs and benefits, monetized benefits to society outweigh the costs. Net annualized benefits over the first 10 years post publication of this rule total $1.9 billion per year using a 3 percent discount rate and $1.5 billion per year using a 7 percent discount rate (Table 12). Additionally, beyond this 10-year period, benefits are likely to continue to accrue at a greater rate than costs because many of the costs are upfront costs and the benefits tend to have a delay before beginning to accrue.
To consider the relative magnitude of the estimated costs of this regulation, the Department compares the costs to revenues for public entities. Because
The Department received some comments on the proposed rule's estimated costs and benefits. These comments are discussed throughout the FRIA. One methodological change was made from the analysis performed for the NPRM on the timing of compliance for making password-protected course content accessible by public educational entities, which is discussed further in the FRIA. However, the numbers in the FRIA also differ from the proposed rule because data have been updated to reflect the most recently available data and because monetary values are now reported in 2022 dollars (whereas the analysis performed for the NPRM presented values in 2021 dollars).
The Department has prepared a FRFA to comply with its obligations under the Regulatory Flexibility Act and related laws and Executive Orders requiring executive branch agencies to consider the effects of regulations on small entities.
The Department calculated both costs and benefits to small government entities as part of its FRFA. The Department also compared costs to revenues for small government entities to evaluate the economic impact to these small government entities. The costs for each small government entity type and size are generally estimated to be below 1 percent of revenues (the one exception is small independent community colleges, for which the cost-to-revenue ratio is 1.05 percent and 1.10 percent using a 3 percent and 7 percent discount rate, respectively),
Costs to small entities are displayed in Table 13 and Table 14; Table 15 contains the costs and revenues per government type and cost-to-revenue
Though not included in the Department's primary benefits analysis due to methodological limitations, the Department estimated time savings for State and local government entities from reduced contacts (
The Department explains in greater detail its efforts to minimize the economic impact on small entities, as well as estimates of regulatory alternatives that the Department considered to reduce those impacts in
Executive Order 13132 requires executive branch agencies to consider whether a proposed rule will have federalism implications.
Title II of the ADA covers State and local government entity services, programs, and activities, and, therefore, has federalism implications. State and local government entities have been subject to the ADA since 1991, and the many State and local government entities that receive Federal financial assistance have also been required to comply with the requirements of section 504 of the Rehabilitation Act. Hence, the ADA and the title II regulation are not novel for State and local government entities.
In crafting this regulation, the Department has been mindful of its obligation to meet the objectives of the ADA while also minimizing conflicts between State law and Federal interests. Since the Department began efforts to issue a web accessibility regulation more than 13 years ago, the Department has received substantial feedback from State and local government entities about the potential impacts of rulemaking on this topic. In the NPRM, the Department solicited comments from State and local officials and their representative national organizations on the rule's effects on State and local government entities, and on whether the rule may have direct effects on the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. The Department also attended three listening sessions on the NPRM hosted by the SBA's Office of Advocacy, the Association on Higher Education and Disability, and the Great Lakes ADA Center at the University of Illinois at Chicago, in conjunction with the ADA National Network. These sessions were cumulatively attended by more than 500 members of the public, including representatives from public entities, and the Department received feedback during these sessions about the potential impacts of the rule on public entities.
In response to the NPRM, the Department received written comments from members of the public about the relationship between this rule and State and local laws addressing public entities' web content and mobile apps. Some commenters asked questions and made comments about how this rule would interact with State laws providing greater or less protection for the rights of individuals with disabilities. The Department wishes to clarify that, consistent with 42 U.S.C. 12201, this final rule will preempt State laws affecting entities subject to the ADA only to the extent that those laws provide less protection for the rights of individuals with disabilities. This rule does not invalidate or limit the remedies, rights, and procedures of any State laws that provide greater or equal protection for the rights of individuals with disabilities. Moreover, the Department's provision on equivalent facilitation at § 35.203 provides that nothing prevents a public entity from using designs, methods, or techniques as alternatives to those prescribed in this rule, provided that such alternatives result in substantially equivalent or greater accessibility and usability. Accordingly, for example, if a State law requires public entities in that State to conform to WCAG 2.2, nothing in this rule would prevent a public entity from complying with that standard.
The Department also received comments asking how this rule will interact with State or local laws requiring public entities to post certain content online. The Department notes that this rule does not change public entities' obligations under State and local laws governing the types of content that public entities must provide or make available online. Instead, this rule simply requires that when public entities provide or make available web content or mobile apps, they must ensure that that content and those apps comply with the requirements set forth in this rule. This is consistent with the remainder of the title II regulatory framework, under which public entities have been required to ensure that their services, programs, and activities comply with specific accessibility requirements since 1991, even for services, programs, or activities that are otherwise governed by State and local laws.
The National Technology Transfer and Advancement Act of 1995 (“NTTAA”) directs that, as a general matter, all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, which are private—generally nonprofit—organizations that develop technical standards or specifications using well-defined procedures that require openness, balanced participation among affected interests and groups, fairness and due process, and an opportunity for appeal, as a means to carry out policy objectives or activities.
The Department is adopting WCAG 2.1 Level AA as the accessibility standard to apply to web content and mobile apps of title II entities. WCAG 2.1 Level AA was developed by W3C, which has been the principal international organization involved in developing protocols and guidelines for the web. W3C develops a variety of technical standards and guidelines, including ones relating to privacy, internationalization of technology, and accessibility. Thus, the Department is complying with the NTTAA in selecting WCAG 2.1 Level AA as the applicable accessibility standard.
The Department makes every effort to promote clarity and transparency in its rulemaking. In any regulation, there is a tension between drafting language that is simple and straightforward and
Under the Paperwork Reduction Act of 1995 (“PRA”), no person is required to respond to a “collection of information” unless the agency has obtained a control number from OMB.
Section 4(2) of the Unfunded Mandates Reform Act of 1995
As discussed above, through this rule, the Department is adopting the internationally recognized accessibility standard for web access, WCAG 2.1 Level AA, published in June 2018, as the technical standard for web and mobile app accessibility under title II of the ADA. WCAG 2.1 Level AA, published by W3C WAI, specifies success criteria and requirements that make web content more accessible to all users, including individuals with disabilities. The Department incorporates WCAG 2.1 Level AA by reference into this rule, instead of restating all of its requirements verbatim. To the extent there are distinctions between WCAG 2.1 Level AA and the standards articulated in this rule, the standards articulated in this rule prevail.
The Department notes that when W3C publishes new versions of WCAG, those versions will not be automatically incorporated into this rule. Federal agencies do not incorporate by reference into published regulations future versions of standards developed by bodies like W3C. Federal agencies are required to identify the particular version of a standard incorporated by reference in a regulation.
WCAG 2.1 Level AA is reasonably available to interested parties. Free copies of WCAG 2.1 Level AA are available online on W3C's website at
In accordance with the Congressional Review Act, the Department has determined that this rule is a major rule as defined by 5 U.S.C. 804(2). The Department will submit this final rule and other appropriate reports to Congress and the Government Accountability Office for review.
Administrative practice and procedure, Civil rights, Communications, Incorporation by reference, Individuals with disabilities, State and local requirements.
By the authority vested in me as Attorney General by law, including 5 U.S.C. 301; 28 U.S.C. 509, 510; sections 201 and 204 of the of the Americans with Disabilities Act, Public Law 101-336, as amended, and section 506 of the ADA Amendments Act of 2008, Public Law 110-325, and for the reasons set forth in appendix D to 28 CFR part 35, chapter I of title 28 of the Code of Federal Regulations is amended as follows—
5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a.
(1) Was created before the date the public entity is required to comply with subpart H of this part, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H;
(2) Is retained exclusively for reference, research, or recordkeeping;
(3) Is not altered or updated after the date of archiving; and
(4) Is organized and stored in a dedicated area or areas clearly identified as being archived.
(1) If a public entity has a population calculated by the United States Census Bureau in the most recent decennial Census, the population estimate for that public entity as calculated by the United States Census Bureau in the most recent decennial Census; or
(2) If a public entity is an independent school district, or an instrumentality of an independent school district, the population estimate for the independent school district as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates; or
(3) If a public entity, other than a special district government or an independent school district, does not have a population estimate calculated by the United States Census Bureau in the most recent decennial Census, but is an instrumentality or a commuter authority of one or more State or local governments that do have such a population estimate, the combined decennial Census population estimates for any State or local governments of which the public entity is an instrumentality or commuter authority; or
(4) For the National Railroad Passenger Corporation, the population estimate for the United States as calculated by the United States Census Bureau in the most recent decennial Census.
(a)
(1) Web content that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements; and
(2) Mobile apps that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements.
(b)
(2) Beginning April 26, 2027, a public entity with a total population of less than 50,000 or any public entity that is a special district government shall ensure that the web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.
(3) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the
The requirements of § 35.200 do not apply to the following:
(a)
(b)
(c)
(d)
(1) About a specific individual, their property, or their account; and
(2) Password-protected or otherwise secured.
(e)
(a) A public entity may use conforming alternate versions of web content, as defined by WCAG 2.1, to comply with § 35.200 only where it is not possible to make web content directly accessible due to technical or legal limitations.
(b) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the
Nothing in this subpart prevents the use of designs, methods, or techniques as alternatives to those prescribed, provided that the alternative designs, methods, or techniques result in substantially equivalent or greater accessibility and usability of the web content or mobile app.
Where a public entity can demonstrate that compliance with the requirements of § 35.200 would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens, compliance with § 35.200 is required to the extent that it does not result in a fundamental alteration or undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.200 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or their designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity to the maximum extent possible.
A public entity that is not in full compliance with the requirements of § 35.200(b) will be deemed to have met the requirements of § 35.200 in the limited circumstance in which the public entity can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the public entity's web content or mobile app to do any of the following in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use:
(a) Access the same information as individuals without disabilities;
(b) Engage in the same interactions as individuals without disabilities;
(c) Conduct the same transactions as individuals without disabilities; and
(d) Otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities.
This appendix contains guidance providing a section-by-section analysis of the revisions to this part published on April 24, 2024.
This appendix provides a detailed description of the Department's changes to this part (the title II regulation), the reasoning behind those changes, and responses to public comments received in connection with the rulemaking. The Department made changes to subpart A of this part and added subpart H to this part. The section-by-section analysis addresses the changes in the order they appear in the title II regulation.
The Department is including in § 35.104 a definition for “archived web content.” “Archived web content” is defined as web content that was created before the date the public entity is required to comply with subpart H of this part, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H. Second, the web content is retained exclusively for reference, research, or recordkeeping. Third, the web content is not altered or updated after the date of archiving. Fourth, the web content is organized and stored in a dedicated area or areas clearly identified as being archived. The definition is meant to capture historic web content that, while outdated or superfluous, is maintained unaltered in a dedicated archived area for reference, research, or recordkeeping. The term is used in the exception set forth in § 35.201(a). The Department provides a more detailed explanation of the application of the exception in the section-by-section analysis of § 35.201(a).
The Department made several revisions to the definition of “archived web content” from the notice of proposed rulemaking (“NPRM”). The Department added a new part to the definition to help clarify the scope of content covered by the definition and associated exception. The new part of the definition, the first part, specifies that archived web content is limited to three types of historic content: web content that was created before the date the public entity is required to comply with subpart H of this part; web content that reproduces paper documents created before the date the public entity is required to comply with subpart H; and web content that reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H.
Web content that was created before the date a public entity is required to comply with subpart H of this part satisfies the first part of the definition. In determining the date web content was created, the Department does not intend to prohibit public entities from making minor adjustments to web content that was initially created before the relevant compliance dates specified in § 35.200(b), such as by redacting personally identifying information from web content as necessary before it is posted to an archive, even if the adjustments are made after the compliance date. In contrast, if a public entity makes substantial changes to web content after the date the public entity is required to comply with subpart H, such as by adding, updating, or rearranging content before it is posted to an archive, the content would likely no longer meet the first part of the definition. If the public entity later alters or updates the content after it is posted in an archive, the content would not meet the third part of the definition of “archived web content” and it would generally need to conform to WCAG 2.1 Level AA.
Web content that reproduces paper documents or that reproduces the contents of other physical media would also satisfy the first part of the definition if the paper documents or the contents of the other physical media were created before the date the public entity is required to comply with subpart H of this part. Paper documents include various records that may have been printed, typed, handwritten, drawn, painted, or otherwise marked on paper. Videotapes, audiotapes, film negatives, CD-ROMs, and DVDs are examples of physical media. The Department anticipates that public entities may identify or discover historic paper documents or historic content contained on physical media that they wish to post in an online archive following the time they are required to comply with subpart H. For example, a State agricultural agency might move to a new building after the date it is required to comply with subpart H and discover a box in storage that contains
The Department added the first part to the definition of “archived web content” after considering all the comments it received. In the NPRM, the Department sought feedback about the archived web content exception, including whether there are alternatives to the exception that the Department should consider or additional limitations that should be placed on the exception.
After reviewing the comments, the Department believes the first part of the definition sets an appropriate time-based limitation on the scope of content covered by the definition and exception that is consistent with the Department's stated intent in the NPRM. In the NPRM, the Department explained that the definition of “archived web content” and the associated exception were intended to cover historic content that is outdated or superfluous.
The Department declines to establish time-based limitations for when content may be posted to an archive or to otherwise set an expiration date for the exception. As discussed elsewhere in this appendix, the Department recognizes that many public entities will need to carefully consider the design and structure of their web content before dedicating a certain area or areas for archived content, and that, thereafter, it will take time for public entities to identify all content that meets the definition of “archived web content” and post it in the newly created archived area or areas. The archived web content exception thus provides public entities flexibility as to when they will archive web content, so long as the web content was created before the date the public entity was required to comply with subpart H of this part or the web content reproduces paper documents or the contents of other physical media created before the date the public entity was required to comply with subpart H. In addition, the Department does not believe it is necessary to establish a waiting period before newly created web created content can be posted in an archive. New content created after the date a public entity is required to comply with subpart H will generally not meet the first part of the definition of “archived web content.” In the limited circumstances in which newly created web content could meet the first part of the definition because it reproduces paper documents or the contents of other physical media created before the date the public entity is required to comply with subpart H, the Department believes the scope of content covered by the exception is sufficiently limited by the second part of the definition: whether the content is retained exclusively for reference, research, or recordkeeping.
In addition to adding a new first part to the definition of “archived web content,” the Department made one further change to the definition from the NPRM. In the NPRM, what is now the second part of the definition pertained to web content that is “maintained” exclusively for reference, research, or recordkeeping. The word “maintained” is now replaced with “retained.” The revised language is not intended to change or limit the coverage of the definition. Rather, the Department recognizes that the word “maintain” can have multiple relevant meanings. In some circumstances, “maintain” may mean “to continue in possession” of property, whereas in other circumstances it might mean “to engage in general repair and upkeep” of property.
Commenters raised concerns about several aspects of the definition of “archived web content.” With respect to the second part of the definition, commenters stated that the definition does not clearly articulate when content is retained exclusively for reference, research, or recordkeeping. Commenters stated that the definition could be interpreted inconsistently, and it could be understood to cover important information that should be accessible. For example, commenters were concerned that web content containing public entities' past meeting minutes where key decisions were made would qualify as archived content, as well as web content containing laws, regulations, court decisions, or prior legal interpretations that are still relevant. Therefore, commenters suggested that the definition should not cover recordkeeping documents, agendas, meeting minutes, and other related documents at all. One commenter recommended adding to the definition to clarify that it does not apply to content a public entity uses to offer a current service, program, or activity, and another commenter suggested that content should be archived depending on how frequently members of the public seek to access the content. One commenter also stated that the Department is left with the responsibility to determine whether web content is appropriately designated as archived when enforcing subpart H of this part in the future, and the commenter believed that this enforcement may be insufficient to avoid public entities evading their responsibilities under subpart H. Another commenter recommended that the Department should conduct random audits to determine if public entities are properly designating archived web content.
The Department's revised definition of “archived web content,” and specifically the new first part of the definition, make clear that the definition only pertains to content created before the date the public entity is
Commenters also raised concerns about the fourth part of the definition of “archived web content,” which requires archived web content to be stored in a dedicated area or areas clearly identified as being archived. Some commenters did not believe public entities should be required to place archived web content in a dedicated area or areas clearly identified as being archived in order to be covered by the exception at § 35.201(a). Commenters stated that public entities should retain flexibility in organizing and storing files according to how their web content is designed and structured, and it might not be clear to members of the public to look for content in an archive depending on the overall makeup of the web content. Commenters also stated that it would be burdensome to create an archive area, identify web content for the archive, and move the content into the archive. One commenter stated that public entities might remove content rather than move it to a dedicated archive. Commenters instead suggested that the web content itself could be individually marked as archived regardless of where it is posted. One commenter also requested the Department clarify that the term “area” includes “websites” and “repositories” where archived web content is stored.
After carefully weighing these comments, the Department has decided not to change the fourth part of the definition for “archived web content.” The Department believes storing archived web content in a dedicated area or areas clearly identified as being archived will result in the greatest predictability for individuals with disabilities about which web content they can expect to conform to WCAG 2.1 Level AA. However, the Department notes that it did not identify specific requirements about the structure of an archived area, or how to clearly identify an area as being archived, in order to provide public entities greater flexibility when complying with subpart H of this part. For example, in some circumstances a public entity may wish to create separate web pages or websites to store archived web content. In other circumstances, a public entity may wish to clearly identify that a specific section on a specific web page contains archived web content, even if the web page also contains non-archived content in other separate sections. However public entities ultimately decide to store archived web content, the Department reiterates that predictability for individuals with disabilities is paramount. To this end, the label or other identification for a dedicated archived area or areas must be clear so that individuals with disabilities are able to detect when there is content they may not be able to access. Whether a particular dedicated area is clearly identified as being archived will, of course, depend on the facts of the particular situation. The Department also emphasizes that the existence of a dedicated area or areas for archived content must not interfere with the accessibility of other web content that is not archived.
Some commenters also recommended an alternative definition of “archived web content” that does not include the second or fourth parts of the definition. Commenters proposed that archived web content should be defined as web content that (1) was provided or made available prior to the effective date of the final rule and (2) is not altered or updated after the effective date of the final rule. While the Department agrees that a time-based distinction is appropriate and has therefore added the first part to the definition, the Department does not believe the commenters' approach suggested here is advisable because it has the potential to cause a significant accessibility gap for individuals with disabilities if public entities rely on web content that is not regularly updated or changed. Under the commenters' proposed definition, the exception for archived web content might cover important web content used for reasons other than reference, research, or recordkeeping if the content has not been updated or altered. As discussed in more detail in the section-by-section analysis of § 35.201(a), the purpose of the exception for archived web content is to help public entities focus their resources on making accessible the most important materials that people use most widely and consistently, rather than historic or outdated web content that is only used for reference, research, or recordkeeping. Furthermore, as discussed in the preceding paragraph, the Department believes the fourth part of the definition is necessary to ensure the greatest predictability for individuals with disabilities about which web content they can expect to conform to WCAG 2.1 Level AA.
Commenters made other suggestions related to the definition of and exception for “archived web content.” The Department has addressed these comments in the discussion of the § 35.201(a) archived web content exception in the section-by-section analysis.
The Department is including in § 35.104 a definition for “conventional electronic documents.” “Conventional electronic documents” are defined as web content or content in mobile apps that is in the following electronic file formats: portable document formats, word processor file formats, presentation file formats, and spreadsheet file formats. The definition thus provides an exhaustive list of electronic file formats that constitute conventional electronic documents. Examples of conventional electronic documents include: Adobe PDF files (
In the NPRM, the Department asked whether it should craft a more flexible definition of “conventional electronic documents” instead of a definition based on an exhaustive list of file formats.
Other commenters preferred the Department's approach of identifying an exhaustive list of file formats. Some commenters noted that an exhaustive list provides greater clarity and predictability, which assists public entities in identifying their obligations under subpart H of this part. Some commenters suggested that the Department could provide greater clarity by identifying specific file types in the regulatory text rather than listing file formats (
After considering all the comments, the Department declines to change its approach to defining conventional electronic documents. The Department expects that a more flexible definition would result in less predictability for both public entities and individuals with disabilities, especially because the Department does not currently have sufficient information about how technology will develop in the future. The Department seeks to avoid such uncertainty because the definition of “conventional electronic documents” sets the scope of two exceptions, § 35.201(b) and (d). The Department carefully balanced benefits for individuals with disabilities with the challenges public entities face in making their web content and mobile apps accessible in compliance with subpart H of this part when crafting these exceptions, and the Department does not want to inadvertently expand or narrow the exceptions with a less predictable definition of “conventional electronic documents.”
Unlike in the NPRM, the definition of “conventional electronic documents” does not include database file formats. In the NPRM, the Department solicited comments about whether it should add any file formats to, or remove any file formats from, the definition of “conventional electronic documents.” While some commenters supported keeping the list of file formats in the proposed definition as is, the Department also heard a range of views from other commenters. Some commenters, including public entities and trade groups representing public accommodations, urged the Department to add additional file formats to the definition of “conventional electronic documents.” For example, commenters recommended adding image files, video files, audio files, and electronic books such as EPUB (electronic publications) or DAISY (Digital Accessible Information System) files. Commenters noted that files in such other formats are commonly made available by public entities and they can be burdensome to remediate. Commenters questioned whether there is a basis for distinguishing between the file formats included in the definition and other file formats not included in the definition.
Other commenters believed the list of file formats included in the proposed definition of “conventional electronic documents” was too broad. A number of disability advocacy groups stated that certain document formats included in the definition are generally easily made accessible. Therefore, commenters did not believe such documents should generally fall within the associated exceptions under § 35.201(b) and (d). Some commenters also stated that there could be confusion about accessibility requirements for database files because database files and some spreadsheet files may include data that are not primarily intended to be human-readable. The commenters stated that in many cases such content is instead intended to be opened and analyzed with other special software tools. The commenters pointed out that data that is not primarily intended to be human-readable is equally accessible for individuals with disabilities and individuals without disabilities, and they recommended clarifying that the accessibility requirements do not apply to such data.
Some commenters suggested that certain file formats not included in the definition of “conventional electronic documents,” such as images or videos, may warrant different treatment altogether. For example, one public entity stated that it would be better to place images and multimedia in a separate and distinct category with a separate definition and relevant technical standards where needed to improve clarity. In addition, a disability advocacy organization stated that images do not need to be included in the definition and covered by the associated exceptions because public entities can already uniquely exempt this content in some circumstances by marking it as decorative, and it is straightforward for public entities to add meaningful alternative text to important images and photos that are not decorative.
After considering all the comments, the Department agrees that database file formats should not be included in the definition of “conventional electronic documents.” The Department now understands that database files may be less commonly available through public entities' web content and mobile apps than other types of documents. To the extent such files are provided or made available by public entities, the Department understands that they would not be readable by either individuals with disabilities or individuals without disabilities if they only contain data that are not primarily intended to be human-readable. Therefore, there would be limited accessibility concerns, if any, that fall within the scope of subpart H of this part associated with documents that contain data that are not primarily intended to be human-readable. Accordingly, the Department believes it could be confusing to include database file formats in the definition. However, the Department notes that while there may be limited accessibility concerns, if any, related to database files containing data that are not primarily intended to be human-readable, public entities may utilize these data to create outputs for web content or mobile apps, such as tables, charts, or graphs posted on a web page, and those outputs would be covered by subpart H unless they fall into another exception.
The Department declines to make additional changes to the list of file formats included in the definition of “conventional electronic documents.” After reviewing the range of different views expressed by commenters, the Department believes the current list strikes the appropriate balance between ensuring access for individuals with disabilities and feasibility for public entities so that they can comply with subpart H of this part. The list included in the definition is also aligned with the Department's intention to cover documents that public entities commonly make available in either an electronic form or that would have been traditionally available as physical printed output. If public entities provide and make available files in formats not included in the definition, the Department notes that those other files may qualify for the exception in § 35.201(a) if they meet the definition for “archived web content,” or the exception in § 35.201(e) for certain preexisting social media posts if they are covered by that exception's description. To the extent those other files are not covered by one of the exceptions in § 35.201, the Department also notes that public entities would not be required to make changes to those files that would result in a fundamental alteration in the nature of a service, program, or activity, or impose undue financial and administrative burdens, as discussed in the section-by-section analysis of § 35.204.
With respect to the comment suggesting that it would be better to place images and multimedia in a separate and distinct category with a separate definition and relevant technical standards where needed to improve clarity, the Department notes that the WCAG standards were designed to be “technology neutral.”
The Department also recognizes that, as some commenters pointed out, this part treats conventional electronic documents differently than WCAG 2.1, in that conventional electronic documents are included in the definition of “web content” in § 35.104, while WCAG 2.1 does not include those documents in its definition of “web content.” The Department addresses these comments in its analysis of the definition of “web content.”
As discussed in the preceding paragraphs, the scope of the associated exception for preexisting conventional electronic documents, at § 35.201(b), is based on the definition of “conventional electronic documents.” The definition applies to conventional electronic documents that are part of a public entity's web content or mobile apps. The exception also applies to “conventional electronic documents” that are part of a public entity's web content or mobile apps, but only if the documents were provided or made available before the date
Section 35.104 defines “mobile apps” as software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets. For purposes of this part, mobile apps include, for example, native apps built for a particular platform (
The Department received very few comments on this definition. One commenter noted that the Department does not appear to consider other technologies that may use mobile apps such as wearable technology. The Department notes that the definition's examples of devices that use mobile apps (
The Department has added a definition for “special district government.” The term “special district government” is used in § 35.200(b) and is defined in § 35.104 to mean a public entity—other than a county, municipality, township, or independent school district—authorized by State law to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and whose population is not calculated by the United States Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates. Because special district governments do not have populations calculated by the United States Census Bureau and are not necessarily affiliated with public entities that do have such populations, their population sizes are unknown. A special district government may include, for example, a mosquito abatement district, utility district, transit authority, water and sewer board, zoning district, or other similar governmental entity that may operate with administrative and fiscal independence. This definition is drawn in part from the U.S. Census Bureau definition
Section 35.200 provides the dates by which public entities must begin complying with the technical standard. The compliance dates are generally based on a public entity's total population, as defined in this part. The Department has added a definition for “total population” in § 35.104. If a public entity has a population calculated by the United States Census Bureau in the most recent decennial Census, the public entity's total population as defined in this part is the population estimate for that public entity as calculated by the United States Census Bureau in the most recent decennial Census. If a public entity is an independent school district, or an instrumentality of an independent school district, the entity's total population as defined in this part is the population estimate for the independent school district as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates. If a public entity, other than a special district government or an independent school district, does not have a population estimate calculated by the United States Census Bureau in the most recent decennial Census, but is an instrumentality or a commuter authority of one or more State or local governments that do have such a population estimate, the entity's total population as defined in this part is the combined decennial Census population estimates for any State or local governments of which the public entity is an instrumentality or commuter authority. The total population for the National Railroad Passenger Corporation as defined in this part is the population estimate for the United States as calculated by the United States Census Bureau in the most recent decennial Census. The terminology used in the definition of “total population” draws from the terminology used in the definition of “public entity” in title II of the ADA
The regulatory text of this definition has been revised from the NPRM for clarity. The regulatory text of this definition previously provided that “total population” generally meant the population estimate for a public entity as calculated by the United States Census Bureau in the most recent decennial Census. Because the decennial Census does not include population estimates for public entities that are independent school districts, the regulatory text in the NPRM made clear that for independent school districts, “total population” would be calculated by reference to the population estimates as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates. In recognition of the fact that some public entities do not have population estimates calculated by the United States Census Bureau, the preamble to the NPRM stated that if a public entity does not have a specific Census-defined population, but belongs to another jurisdiction that does, the population of the entity is determined by the population of the jurisdiction to which the entity belongs.
The revised regulatory text of this definition retains the language from the definition in the NPRM with respect to public entities that have populations calculated in the decennial Census and independent school districts that have populations calculated in the Small Area Income and Poverty Estimates. However, the revised regulatory text of this definition incorporates the approach described in the preamble of the NPRM with respect to how public entities that do not have populations calculated by the United States Census Bureau in the most recent decennial Census can determine their total populations as defined in this part. As the revised definition states, if a public entity, other than a special district government or independent school district, does not have a population estimate calculated by the United States Census Bureau in the most recent decennial Census, but is an instrumentality or a commuter authority of one or more State or local governments that do have such a population estimate, the total population for the public entity is determined by reference to the combined decennial Census population estimates for any State or local governments of which the public entity is an instrumentality or commuter authority. For example, the total population of a county library is the population of the county of which the library is an instrumentality. The revised definition also makes clear that if a public entity is an instrumentality of an independent school district, the instrumentality's population is determined
The Department has added a definition for “user agent.” The definition exactly matches the definition of “user agent” in WCAG 2.1.
The Department added this definition to this part to ensure clarity of the term “user agent,” now that the term appears in the definition of “web content.” As the Department explains further in discussing the definition of “web content” in this section-by-section analysis, the Department has more closely aligned the definition of “web content” in this part with the definition in WCAG 2.1. Because this change introduced the term “user agent” into the title II regulation, and the Department does not believe this is a commonly understood term, the Department has added the definition of “user agent” provided in WCAG 2.1 to this part. One commenter suggested that the Department add this definition in this part, and the Department also believes that adding this definition in this part is consistent with the suggestions of many commenters who proposed aligning the definition of “web content” with the definition in WCAG 2.1, as explained further in the following section.
The Department is including a definition of “WCAG 2.1.” The term “WCAG 2.1” refers to the 2018 version of the voluntary guidelines for web accessibility, known as the Web Content Accessibility Guidelines 2.1 (“WCAG 2.1”). W3C, the principal international organization involved in developing standards for the web, published WCAG 2.1 in June 2018, and it is available at
Section 35.104 defines “web content” as the information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content's structure, presentation, and interactions. Examples of web content include text, images, sounds, videos, controls, animations, and conventional electronic documents. The first sentence of the Department's definition of “web content” is aligned with the definition of “web content” in WCAG 2.1.
The Department slightly revised its definition from the proposed definition in the NPRM, which was based on the WCAG 2.1 definition but was slightly less technical and intended to be more easily understood by the public generally. The Department's proposed rule defined “web content” as information or sensory experience—including the encoding that defines the content's structure, presentation, and interactions—that is communicated to the user by a web browser or other software. Examples of web content include text, images, sounds, videos, controls, animations, and conventional electronic documents.
The Department decided to more closely align the definition of “web content” in this part with the definition in WCAG 2.1 to avoid confusion, to ensure consistency in the application of WCAG 2.1, and to assist technical experts in implementing subpart H of this part. Consistent with the suggestion of several commenters, the Department believes this approach minimizes possible inadvertent conflicts between the type of content covered by the Department's regulatory text and the content covered by WCAG 2.1. Further, the Department believes it is prudent to more closely align these definitions because the task of identifying relevant content to be made accessible will often fall on technical experts. The Department believes technical experts will be familiar with the definition of “web content” in WCAG 2.1, and creating a modified definition will unnecessarily increase effort by requiring technical experts to familiarize themselves with a modified definition. The Department also understands that there are likely publicly available accessibility guidance documents and toolkits on the WCAG 2.1 definition that could be useful to public entities, and using a different definition of “web content” could call into question public entities' ability to rely on those tools, which would create unnecessary work for public entities. To incorporate this change, the Department removed language from the proposed rule addressing the encoding that defines the web content's structure, presentation, and interactions, because the Department believed the more prudent approach was to more closely align this definition with the definition in WCAG 2.1. However, the Department maintained in its final definition an additional sentence providing examples of web content to aid in the public's understanding of this definition. This may be particularly useful for members of the public without a technical background.
The Department received many comments supporting the Department's proposed definition of “web content” from public entities, disability advocates, individuals, and technical and other organizations. Many of these commenters indicated that the Department's definition was sufficiently generic and familiar to the public. The Department believes that the definition in this part aligns with these comments, since it is intended to mirror the definition in WCAG 2.1 and cover the same types of content.
Some commenters raised concerns that the scope of the definition should be broader, arguing that the definition should be extended to include “closed” systems such as kiosks, printers, and point-of-sale devices. Another organization mistakenly believed that the examples listed in the definition of “web content” were meant to be exhaustive. The Department wishes to clarify that this list is not intended to be exhaustive. The Department declines to broaden the definition of “web content” beyond the definition in this part because the Department seeks in its rulemaking to be responsive to calls from the public for the Department to provide certainty by adopting a technical standard State and local government entities must adhere to for their web content and mobile apps. The Department thus is limiting its rulemaking
Some commenters also suggested that the Department narrow the definition of “web content.” A few of these comments came from trade groups representing public accommodations, and they argued that the scope of the proposed definition would extend to content the public entity cannot control or is unable to make accessible due to other challenges. These commenters also argued that the costs of making content accessible would be extremely high for the range of content covered by the definition of “web content.” The Department believes the framework in this part appropriately balances the considerations implicated by this definition. Public entities can avail themselves of several exceptions that are intended to reduce the costs of making content accessible in some cases (such as the preexisting social media posts exception in § 35.201(e)), and to address instances where public entities truly do not have control over content (such as the third-party-posted content exception in § 35.201(c)). Further, public entities will be able to rely on the fundamental alteration and undue burdens limitations set out in § 35.204 where they can satisfy the requirements of those limitations, and public entities may also be able to use conforming alternate versions under § 35.202 where it is not possible to make web content directly accessible due to technical or legal limitations. The Department believes this approach appropriately balances the costs of compliance with the significant benefits to individuals with disabilities of being able to access the services, programs, and activities of their State and local government entities.
Some disability advocacy groups suggested that the Department modify the definition slightly, such as by providing for “information, sensory or otherwise” in lieu of “information and sensory experience.” The Department believes the prudent approach is to closely mirror the definition of “web content” in WCAG 2.1 to avoid confusion that could ensue from other differences between the two definitions. While the Department appreciates that there may be questions about the application of the definition to specific factual contexts, the Department believes the definition in WCAG 2.1 is sufficiently clear. The Department can provide further guidance on the application of this definition as needed.
Some commenters argued that the non-exhaustive list of examples of web content in this part would include web content that would not be considered web content under WCAG 2.1. In particular, some commenters noted that conventional electronic documents are not web content under WCAG 2.1 because they are not opened or presented through a user agent. Those commenters said that the Department's definition of “web content” should not include files such as word processor documents, presentation documents, and spreadsheets, even if they are downloaded from the web. The commenters further suggested that this part should split consideration of electronic document files from web content, similar to the approach they stated is used in the section 508 standards.
The Department has considered commenters' views and determined that conventional electronic documents should still be considered web content for purposes of this part. The Department has found that public entities frequently provide their services, programs, or activities using conventional electronic documents, and the Department believes this approach will enhance those documents' accessibility, improving access for individuals with disabilities. The Department understands commenters' concerns to mean that, in applying WCAG 2.1 to conventional electronic documents, not all success criteria may be applicable directly as written. Although the Department understands that some WCAG 2.1 Level AA success criteria may not apply as written to conventional electronic documents,
Finally, several commenters asked whether this definition would cover internal, non-public applications, such as web content used solely by employees. The Department reiterates that subpart H of this part includes requirements for the web content and mobile apps provided or made available by public entities within the scope of title II. While subpart H is not promulgated under title I of the ADA, it is important to note that compliance with subpart H will not relieve title II entities of their distinct employment-related obligations under title I of the ADA, which could include, for example, accommodations for a web developer with a disability working for a public entity.
The Department is creating a new subpart in its title II regulation. Subpart H of this part addresses the accessibility of public entities' web content and mobile apps.
Section 35.200 sets forth specific requirements for the accessibility of web content and mobile apps of public entities. Section 35.200(a) requires a public entity to ensure that the following are readily accessible to and usable by individuals with disabilities: (1) web content that a public entity provides or makes available, directly
Section 35.200(a) identifies the scope of content covered by subpart H of this part. Section 35.200(a)(1) and (2) applies to web content and mobile apps that a public entity provides or makes available. The Department intends the scope of § 35.200 to be consistent with the “Application” section of the existing title II regulation at § 35.102, which states that this part applies to all services, programs, and activities provided or made available by public entities. The Department therefore made minor changes to the language of § 35.200(a)(1) and (2) to make the section more consistent with § 35.102. In the NPRM, § 35.200(a)(1) and (2) applied to web content and mobile apps that a public entity makes available to members of the public or uses to offer services, programs, or activities to members of the public.
The general requirements in subpart H of this part apply to web content or mobile apps that a public entity provides or makes available directly, as well as those the public entity provides or makes available “through contractual, licensing, or other arrangements.” The Department expects that the phrase “directly or through contractual, licensing, or other arrangements” will be familiar to public entities because it comes from existing regulatory language in title II of the ADA. The section on general prohibitions against discrimination in the existing title II regulation says that a public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability engage in various forms of discrimination.
Further, the Department emphasizes that the phrase “provides or makes available” in § 35.200 is not intended to mean that § 35.200 only applies when the public entity creates or owns the web content or mobile app. The plain meaning of “make available” includes situations where a public entity relies on a third party to operate or furnish content. Section 35.200 means that public entities provide or make available web content and mobile apps even where public entities do not design or own the web content or mobile app, if there is a contractual, licensing, or other arrangement through which the public entity uses the web content or mobile app to provide a service, program, or activity. For example, even when a city does not design, create, or own a mobile app allowing the public to pay for public parking, when a contractual, licensing, or other arrangement exists between the city and the mobile app enabling the public to use the mobile app to pay for parking in the city, the mobile app is covered under § 35.200. This is because the public entity has contracted with the mobile app to provide access to the public entity's service, program, or activity (
The Department received many public comments in response to the NPRM expressing confusion about the extent to which content created by third parties on behalf of public entities must be made accessible. Many commenters pointed out that public entities frequently enter into contracts with vendors or other third parties to produce web content and mobile apps, such as for websites and apps used to pay fines and parking fees. Commenters were particularly concerned because the NPRM contained exceptions for third-party content, which they thought could indicate that the Department did not intend to cover any content created by third parties even when it was created on behalf of public entities. Commenters urged the Department to make clear in regulatory text that content created or provided by third-party entities is still covered by this part where those third parties are acting on behalf of a public entity.
The Department agrees with these commenters' concerns, so the Department has modified the language in subpart H of this part to make clear that the general requirements for web content and mobile app accessibility apply when the public entity provides or makes available web content or mobile apps directly or through contractual, licensing, or other arrangements. The Department inserted this language in § 35.200(a)(1) and (2) and (b)(1) and (2). The Department notes that this modification does not change the coverage of § 35.200 from the NPRM. The Department clarified in the NPRM that throughout the proposal, a public entity's “website” is intended to include not only the websites hosted by the public entity, but also websites operated on behalf of a public entity by a third party. For example, public entities sometimes use vendors to create and host their web content. The Department clarified that such content would also be covered by the proposed rule.
Many commenters stated their concern that public entities lack control over third-party content, even where they contract with third parties to provide that content. These commenters, generally from public entities and trade groups representing public accommodations, argued that seeking to obtain accessible third-party content provided on behalf of public entities would be challenging. Some of these commenters said that in theory this type of content could be controlled by procurement, but that this has not been realized in practice. While the Department is sympathetic to these concerns, the Department also received many comments from disability advocates and individuals with disabilities pointing out the crucial nature of services provided by third parties on behalf of public entities. For example, some disability advocates argued that State and local government entities increasingly rely on third parties to provide services such as the mapping of zoning areas and city council districts, fine payment systems, applications for reserving and paying for public parking, websites to search for available public housing, and many other examples. The Department believes individuals with disabilities should not be excluded from these government services because the services are inaccessible and are being provided by third parties on behalf of a public entity, rather than being provided directly by the public entity. Indeed, public entities have a responsibility to comply with their ADA obligations even when their services, programs, or activities are being offered through contractors. Further, while the Department understands the concerns raised by commenters that current market options make it challenging for public entities to procure accessible services, the Department expects that options for accessible third-party services will grow in response to subpart H of this part. The Department believes that more accessible options will be readily available by the time public entities are required to comply with subpart H, which will make it less difficult for public entities to procure accessible
Further, the Department believes that when public entities engage in contractual, licensing, or other arrangements with third parties to provide or make available web content and mobile apps, public entities can choose to work with providers who can ensure accessibility, and public entities can also include contract stipulations that ensure accessibility in third-party services. This is consistent with the existing obligations public entities face in other title II contexts where they choose to contract, license, or otherwise arrange with third parties to provide services, programs, or activities. The Department acknowledges that some commenters argued that they face limited existing options in procurement for accessible third-party services. However, where such circumstances warrant, public entities can rely on the undue burdens provision when they can satisfy its requirements. In addition, the Department expects that options for procuring accessible third-party services will grow in response to its rulemaking.
Since 1994, W3C has been the principal international organization involved in developing protocols and guidelines for the web.
The first version of WCAG, WCAG 1.0, was published in 1999. WCAG 2.0 was published in December 2008, and is available at
WCAG 2.1 contains four principles that provide the foundation for web accessibility: the web content must be perceivable, operable, understandable, and robust.
Section 35.200 requires that public entities' web content and mobile apps conform to WCAG 2.1 Level AA unless compliance would result in a fundamental alteration or undue financial and administrative burdens. As previously mentioned, WCAG 2.1 was published in June 2018 and is available at
In the NPRM, the Department solicited feedback on the appropriate technical standard for accessibility for public entities' web content and mobile apps. The Department received many public comments from a variety of interested parties in response. After consideration of the public comments and after its independent assessment, the Department determined that WCAG 2.1 Level AA is the appropriate technical standard for accessibility to adopt in subpart H of this part. WCAG 2.1 Level AA includes success criteria that are especially helpful for people with disabilities using mobile devices, people with low vision, and people with cognitive or learning disabilities.
The Department expects that adopting WCAG 2.1 Level AA as the technical standard will have benefits that are important to ensuring access for individuals with disabilities to public entities' services, programs, and activities. For example, WCAG 2.1 Level AA requires that text be formatted so that it is easier to read when magnified.
WCAG 2.1 Level AA also includes success criteria addressing the accessibility of mobile apps or web content viewed on a mobile device. For example, WCAG 2.1 Level AA Success Criterion 1.3.4 requires that page orientation (
Such accessibility features are critical for individuals with disabilities to have equal access to their State or local government entity's services, programs, and activities. This is particularly true given that using mobile devices to access government services is commonplace. For example, one source notes that mobile traffic generally accounts for 58.21 percent of all internet usage.
The Department also understands that public entities are likely already familiar with WCAG 2.1 Level AA or will be able to become familiar quickly. This is because WCAG 2.1 Level AA has been available since 2018,
The Department expects, and heard in public comments, that web developers and professionals who work for or with public entities are likely to be familiar with WCAG 2.1 Level AA. And the Department believes that if public entities and associated web developers are not already familiar with WCAG 2.1 Level AA, they are at least likely to be familiar with WCAG 2.0 and will be able to become acquainted quickly with WCAG 2.1's 12 additional Level A and AA success criteria. The Department also believes that resources, like trainings and checklists, exist to help public entities implement or understand how to implement not only WCAG 2.0 Level AA, but also WCAG 2.1 Level AA.
Commenters suggested that the Department adopt WCAG 2.2 as the technical standard. WCAG 2.2 was published as a candidate recommendation—a prefinalization stage—in May 2023, and was published in final form on October 5, 2023, which was after the NPRM associated with the final rule was published and after the comment period closed.
Some commenters suggested that WCAG 2.1 would become outdated once WCAG 2.2 was finalized. And because WCAG 2.2 was adopted more recently than WCAG 2.1, some commenters noted that the adoption of WCAG 2.2 would be more likely to help subpart H of this part keep pace with changes in technology. The Department understands and appreciates the concerns commenters raised.
The Department believes that adopting WCAG 2.1 as the technical standard rather than WCAG 2.2 is the most prudent approach at this time. W3C, while recommending the use of the most recent recommended standard, has made clear that WCAG 2.2 does not “deprecate or supersede” WCAG 2.1 and has stated that WCAG 2.1 is still an existing standard.
Given the benefits of WCAG 2.2 highlighted by commenters, some public entities might choose to implement WCAG 2.2 to provide an even more accessible experience for individuals with disabilities and to increase customer service satisfaction. The Department notes that subpart H of this part provides for equivalent facilitation in § 35.203, meaning public entities could choose to comply with subpart H by conforming their web content to WCAG 2.2 Level AA because WCAG 2.2 Level AA provides substantially equivalent or greater accessibility and usability as compared to WCAG 2.1 Level AA. This would be sufficient to meet the standard for equivalent facilitation in § 35.203, which is discussed in more detail later in the section-by-section analysis.
Alternatively, the Department considered adopting WCAG 2.0. This change was suggested by the Small Business Administration, which argued that public entities should not have to comply with a more rigorous standard for online accessibility than the Federal Government, which is required to conform to WCAG 2.0 under section 508 of the Rehabilitation Act. In 2017, when the Architectural and Transportation Barriers Compliance Board (“Access Board”) adopted WCAG 2.0 as the technical standard for the Federal Government's web content under section 508, WCAG 2.1 had not been finalized.
The Department believes that adopting WCAG 2.1 as the technical standard for subpart H of this part is more appropriate than adopting WCAG 2.0. WCAG 2.1 provides for important accessibility features that are not included in WCAG 2.0, and an increasing number of governmental entities are using WCAG 2.1. A number of countries that have adopted WCAG 2.0 as their standard are now making efforts to move or have moved to WCAG 2.1.
The Department expects that the wide usage of WCAG 2.0 lays a solid foundation for public entities to become familiar with and implement WCAG 2.1's additional Level A and AA criteria. According to the Department's research, dozens of States either use or strive to use WCAG 2.0 or greater—either on their own or by way of implementing the section 508 technical standards—for at least some of their web content. It appears that at least ten States—Alaska, Delaware, Georgia, Louisiana, Massachusetts, Oregon, Pennsylvania, South Dakota, Utah, and Washington—already either use WCAG 2.1 or strive to use WCAG 2.1 for at least some of their web content. Given that WCAG 2.1 is a more recent standard than WCAG 2.0, adds some important criteria for accessibility, and has been in existence for long enough for web developers and public entities to get acquainted with it, the Department views it as more appropriate for adoption in subpart H of this part than WCAG 2.0. In addition, even to the extent public entities are not already acquainted with WCAG 2.1, those entities will have two or three years to come into compliance with subpart H, which should also provide sufficient time to become familiar with and implement WCAG 2.1. The Department also declines to adopt the Access Board's section 508 standards, which are harmonized with WCAG 2.0, for the same reasons it declines to adopt WCAG 2.0.
Some commenters suggested that the Department should require public entities to ensure that they are meeting title II's effective communication standard—which requires that public entities ensure that their communications with individuals with disabilities are as effective as their communications with others
Commenters also suggested that manual testing by individuals with disabilities be required to ensure that content is accessible to them. Although subpart H of this part does not specifically require manual testing by individuals with disabilities because requiring such testing could pose logistical or other hurdles, the Department recommends that public entities seek and incorporate
The Department received some comments recommending that the Department adopt a performance standard instead of a specific technical standard for accessibility of web content and mobile apps. Performance standards establish general expectations or goals for web and mobile app accessibility and allow for compliance via a variety of unspecified methods. As commenters explained, performance standards could provide greater flexibility in ensuring accessibility as web and mobile app technologies change. However, as the Department noted in the NPRM,
Other commenters suggested that the Department take an approach in the final rule whereby public entities would be required to comply with whatever is the most recent version of WCAG at the time. Under that approach, the required technical standard would automatically update as new versions of WCAG are published in the future. These commenters generally argued that such an approach would aid in “future proofing” subpart H of this part to help it keep up with changes in technology. Based on several legal considerations, the Department will not adopt such an approach. First, the Department is incorporating WCAG 2.1 Level AA by reference into subpart H and must abide by the Office of the Federal Register's regulation regarding incorporation by reference.
Relatedly, the Department also received comments suggesting that it institute a process for reviewing and revising its regulation every several years to ensure that subpart H of this part is up to date and effective for current technology. Pursuant to Executive Order 13563, the Department is already required to do a periodic retrospective review of its regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.
Section 35.200 adopts WCAG 2.1 Level AA as the technical standard for mobile apps. This approach will ensure the accessibility standards for mobile apps in subpart H of this part are consistent with the accessibility standards for web content in subpart H. The NPRM asked for feedback on the appropriate technical standard for mobile apps, including whether the Department should adopt WCAG 2.1 Level AA or other standards like the standards for section 508 of the Rehabilitation Act (“Section 508 Standards”), which apply to the Federal Government's web content and mobile apps.
Some commenters had concerns about the costs and burdens associated with applying any technical standard to content on mobile apps, including to content in mobile apps that public entities already provide on the web. One commenter requested that the Department apply WCAG 2.0 to the extent that a public entity's mobile app provides different content than is available online.
However, many commenters expressed strong support for applying the same technical standard for mobile apps and web content and shared that web content and mobile apps generally should not be treated differently. These commenters emphasized the importance of mobile app accessibility, explaining that many individuals rely on mobile apps to get information about State or local government services, programs, or activities, including transportation information, emergency alerts or special news bulletins, and government appointments. Some commenters further clarified that adopting different standards for mobile apps than web content could cause confusion. They also stated that adopting the same standard would ensure a uniform experience and expectations for users with disabilities.
Many commenters, including disability advocacy organizations, individuals, and public entities, supported the use of WCAG 2.1 Level AA as the technical standard for mobile apps, in part because WCAG is internationally recognized, often adopted in practice, and technology neutral (
Some commenters suggested that the Department should adopt WCAG 2.2 as the technical standard for mobile apps. These commenters explained that WCAG 2.2 is more recent and includes newer guidelines based on accessibility issues found in smartphones. Commenters further shared that WCAG 2.2 can better ensure adequate button size and spacing to accommodate users with varying degrees of motor skills in their fingers.
In addition, other commenters recommended that the Department adopt the Section 508 Standards, either independently or together with WCAG 2.1 or WCAG 2.2. Some of these commenters shared their belief that WCAG was developed more for web content than for mobile apps. These commenters stated that while many of WCAG's principles and guidelines can be applied to mobile apps, mobile apps have unique characteristics and interactions that may require additional considerations and depend on the specific requirements and goals of the mobile app in question. For example, commenters indicated that mobile apps may also need to adhere to platform-specific accessibility guidelines for iOS (Apple) and Android (Google). In addition, commenters noted that the Section 508 Standards include additional requirements applicable to mobile apps that are not included in WCAG 2.1 Level AA, such as interoperability requirements to ensure that a mobile app does not disrupt a mobile device's internal assistive technology for individuals with disabilities (
The Department carefully considered all of these comments and agrees with commenters who stated that the same technical standard for accessibility should apply to both web content and mobile apps. The Department believes that applying the same technical standard to both web content and mobile apps will reduce confusion by ensuring consistent requirements and user experiences across web and mobile platforms.
The Department further agrees with the commenters who stated that WCAG 2.1 Level AA is an appropriate technical standard. As discussed previously in this appendix, many developers and organizations are already familiar with WCAG 2.1 Level AA, and they may be less familiar with WCAG 2.2. The Department thus believes that selecting WCAG 2.1 Level AA as the technical standard for mobile apps will reduce the difficulty of complying with subpart H of this part by adopting a well-recognized standard that is already familiar to developers and organizations, while still ensuring increased accessibility and usability for individuals with disabilities. The Department notes that subpart H allows for equivalent facilitation in § 35.203, meaning that public entities could still choose to apply additional standards or techniques related to mobile apps, to the extent that the standard or technique results in substantially equivalent or greater accessibility and usability.
As commenters noted, WCAG 2.1 is designed to be technology neutral, which will help ensure accessibility for mobile apps. Although the Section 508 Standards include some additional requirements like interoperability that are not required by WCAG,
The Department also received comments indicating that certain requirements under WCAG 2.1 Level AA may not be applicable to mobile apps or conventional electronic documents and subpart H of this part should therefore set forth exceptions for those success criteria. The Access Board faced similar concerns when it promulgated its Section 508 Standards.
The Department understands that some WCAG 2.1 Level AA success criteria may not apply to conventional electronic documents and mobile apps directly as written, but the Department declines to set forth exceptions to these success criteria in subpart H of this part. As discussed, the Department believes it is important to apply one consistent standard to web content and mobile apps to ensure clarity and reduce confusion. Public entities generally must ensure that the web content and content in mobile apps they provide or make available conform to the WCAG 2.1 Level AA success criteria, to the extent those criteria can be applied. In determining how to make conventional electronic documents and mobile apps conform to WCAG 2.1 Level AA, public entities may wish to consult W3C's guidance on non-web information and communications technology, which explains how the WCAG success criteria can be applied to conventional electronic documents and mobile apps.
The Department also received a comment suggesting that subpart H of this part reference PDF/UA-1 for standards related to PDF files or W3C's EPUB Accessibility 1.1 standard
In summary, the Department believes that adopting WCAG 2.1 Level AA as the technical standard strikes the appropriate balance of ensuring access for individuals with disabilities and feasibility of implementation because there is a baseline of familiarity with the standard. In addition, for the reasons discussed previously in this appendix, the Department believes that WCAG 2.1 Level AA is an effective standard that sets forth clear, testable success criteria that will provide important benefits to individuals with disabilities.
For web content and mobile apps to conform to WCAG 2.1, they must satisfy the success criteria under one of three levels of conformance: A, AA, or AAA. As previously mentioned, the Department is adopting Level AA as the conformance level under subpart H of this part. In the regulatory text at § 35.200(b)(1) and (2), the Department provides that public entities must comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1. As noted in the NPRM,
By way of background, the three levels of conformance indicate a measure of accessibility and feasibility. Level A, which is the minimum level of accessibility, contains criteria that provide basic web accessibility and are the least difficult to achieve for web developers.
Based on public feedback and independent research, the Department believes that WCAG 2.1 Level AA is the appropriate conformance level because it includes criteria that provide web and mobile app accessibility to individuals with disabilities—including those with visual, auditory, physical, speech, cognitive, and neurological disabilities—and yet is feasible for public entities' web developers to implement. Commenters who spoke to this issue generally seemed supportive of this approach. As discussed in the NPRM,
Some commenters suggested that certain Level AAA criteria or other unique accessibility requirements be added to the technical standard in subpart H of this part. However, the Department believes it would be confusing and difficult to implement certain Level AAA or other unique criteria when such criteria are not required under WCAG 2.1 Level AA. Adopting WCAG 2.1 Level AA as a whole provides greater predictability and reliability. Also, while Level AAA conformance provides a richer user experience, it is the most difficult to achieve for many entities. Again, W3C does not recommend that Level AAA conformance be required as a general policy for entire websites because it is not possible to satisfy all Level AAA criteria for some content.
Therefore, the Department believes that adopting the Level AA conformance level strikes the right balance between accessibility for individuals with disabilities and achievability for public entities.
In addition to setting forth a technical standard with which public entities must comply, § 35.200(b) also establishes dates by which a public entity must comply. The compliance time frames set forth in § 35.200(b) are generally delineated by the total population of the public entity, as defined in § 35.104. Larger public entities—those with populations of 50,000 or more—will have two years before compliance is first required. For the reasons discussed in the section-by-section analysis of § 35.200(b)(2), small public entities—those with total populations under 50,000—and special district governments will have an additional year, totaling three years, before compliance is first required. The 50,000 population threshold was chosen because it corresponds with the definition of “small governmental jurisdictions” as defined in the Regulatory Flexibility Act.
Commenters expressed a wide range of views about how long public entities should be given to bring their web content and mobile apps into compliance with subpart H of this part. Some commenters expressed concern that public entities would need more time to comply, while others expressed concern that a delayed compliance date would prolong the exclusion of individuals with disabilities from public entities' online services, programs, or activities. Suggestions for the appropriate compliance time frame ranged from six months to six years. There were also some commenters who suggested a phased approach where a public entity would need to periodically meet certain compliance milestones over time by prioritizing certain types of content or implementing certain aspects of the technical standard. Refer to the section of the section-by-section analysis entitled “Compliance Time Frame Alternatives” for further discussion of these suggested approaches.
The Department appreciates the various considerations raised by public stakeholders in their comments. After carefully weighing the arguments that the compliance dates should be kept the same, shortened, lengthened, or designed to phase in certain success criteria or focus on certain content, the Department has decided that the compliance dates in subpart H of this part—two years for large public entities and three years for small public entities and special district governments—strike the appropriate balance between the various interests at stake. Shortening the compliance dates would likely result in increased costs and practical difficulties for public entities, especially small public entities. Lengthening the compliance dates would prolong the exclusion of many individuals with disabilities from public entities' web content and mobile apps. The Department believes that the balance struck in the compliance time frame proposed in the NPRM was appropriate, and that there are no overriding reasons to shorten or lengthen these dates given the important and competing considerations involved by stakeholders.
Some commenters said that the Department should not require compliance with technical standards for mobile apps until at least two years after the compliance deadline for web content. These commenters asserted that having different compliance dates for web content and mobile apps would allow entities to learn how to apply accessibility techniques to their web content and then apply that experience to mobile apps. Other commenters argued that the compliance dates for mobile apps should be shortened or kept as proposed.
The Department has considered these comments and subpart H of this part implements the same compliance dates for mobile apps and web content, as proposed in the NPRM. Because users can often access the same information from both web content and mobile apps, it is important that both platforms are subject to the standard at the same times to ensure consistency in accessibility and to reduce confusion. The Department believes these compliance dates strike the appropriate balance between reducing burdens for public entities and ensuring accessibility for individuals with disabilities.
Some commenters stated that it would be helpful to clarify whether subpart H of this part establishes a one-time compliance requirement or instead establishes an ongoing compliance obligation for public entities. The Department wishes to clarify that under subpart H, public entities have an ongoing obligation to ensure that their web content and mobile apps comply with subpart H's requirements, which would include content that is newly added or
Of course, while public entities must begin complying with subpart H of this part on the applicable compliance date, the Department expects that public entities will need to prepare for compliance during the two or three years before the compliance date. In addition, commenters emphasized—and the Department agrees—that public entities still have an obligation to meet all of title II's existing requirements both before and after the date they must initially come into compliance with subpart H. These include the requirements to ensure equal access, ensure effective communication, and make reasonable modifications to avoid discrimination on the basis of disability.
The requirements of § 35.200(b) are generally delineated by the size of the total population of the public entity. If a public entity has a population calculated by the United States Census Bureau in the most recent decennial Census, then the United States Census Bureau's population estimate for that entity in the most recent decennial Census is the entity's total population for purposes of this part. If a public entity is an independent school district, then the district's total population for purposes of this part is determined by reference to the district's population estimate as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates.
The Department recognizes that some public entities, like libraries or public colleges and universities, do not have population data associated with them in the most recent decennial Census conducted by the United States Census Bureau. As noted in the section-by-section analysis of § 35.104, the Department has inserted a clarification that was previously found in the preamble of the NPRM into the regulatory text of the definition of “total population” in this part to make it easier for public entities like these to determine their total population size for purposes of identifying the applicable compliance date. As the definition of “total population” makes clear, if a public entity, other than a special district government or an independent school district, does not have a population calculated by the United States Census Bureau in the most recent decennial Census, but is an instrumentality or a commuter authority of one or more State or local governments that do have such a population estimate, the population of the entity is determined by the combined population of any State or local governments of which the public entity is an instrumentality or commuter authority. For example, a county police department that is an instrumentality of a county with a population of 5,000 would be considered a small public entity (
For purposes of this part, the total population of a public entity is not defined by the population that is eligible for or that takes advantage of the specific services of the public entity. For example, an independent school district with a population of 60,000 adults and children, as calculated in the Small Area Income and Poverty Estimates, is not a small public entity regardless of the number of students enrolled or eligible for services. Similarly, individual county schools are also not considered small public entities if they are instrumentalities of a county that has a population over 50,000. Though a specific county school may create and maintain web content or a mobile app, the Department expects that the specific school may benefit from the resources made available or allocated by the county. This also allows the jurisdiction to assess compliance for its services, programs, and activities holistically. As another example, a public State university located in a town of 20,000 within a State with a population of 5 million would be considered a large public entity for the purposes of this part because it is an instrumentality of the State. However, a county community college in the same State where the county has a population of 35,000 would be considered a small public entity for the purposes of this part, because the community college is an instrumentality of the county.
Some commenters provided feedback on this method of calculating a public entity's size for purposes of determining the applicable compliance time frame. Some public educational entities seemed to mistakenly believe that their populations would be calculated based on the size of their student bodies and suggested that it would be difficult for them to calculate their population size under that approach because they have multiple campuses in different locations. As clarified previously in this appendix, population size for educational entities is determined not by the size of those entities' student bodies, but rather by reference to the Census-calculated total population of the jurisdiction of which the educational entity is an instrumentality.
Other commenters suggested that although public entities without a Census-defined population may be instrumentalities of public entities that do have such a population, those entities do not always reliably receive funding from the public entities of which they are instrumentalities. The Department understands that the financial relationships between these entities may vary, but the Department believes that the method of calculating population it has adopted will generally be the clearest and most effective way for public entities to determine the applicable compliance time frame.
Some commenters associated with educational entities suggested that the Department use the Carnegie classification system for purposes of determining when they must first comply with subpart H of this part. The Carnegie classification system takes into account factors that are not relevant to subpart H, such as the nature of the degrees offered (
Other commenters suggested that factors such as number of employees, budget, number and type of services provided, and web presence be used to determine the appropriate compliance time frame. However, the Department believes that using population as determined by the Census Bureau is the clearest, most predictable, and most reliable factor for determining the compliance time frame. At least one commenter highlighted that population size often relates to the audience of people with disabilities that a public entity serves through its web content and mobile apps. In addition, the Regulatory Flexibility Act uses population size to define what types of governmental jurisdictions qualify as “small.”
The Department also received comments asserting that the threshold for being considered “small” should be changed and that the Department should create varying compliance dates based on additional gradations of public entity size. The Department believes it is most appropriate to rely on the 50,000 threshold—which is
Section 35.200(b)(1) sets forth the web content and mobile app accessibility requirements for public entities with a total population of 50,000 or more. The requirements of § 35.200(b)(1) apply to larger public entities—specifically, to those public entities that do not qualify as “small governmental jurisdictions” as defined in the Regulatory Flexibility Act.
As discussed previously in this appendix, the Department received varied feedback from the public regarding an appropriate time frame for requiring public entities to begin complying with subpart H of this part. Individuals with disabilities and disability advocacy organizations tended to prefer a shorter time frame, often arguing that web accessibility has long been required by the ADA and that extending the deadline for compliance rewards entities that have not made efforts to make their websites accessible. Such commenters also emphasized that a longer compliance time frame would prolong the time that individuals with disabilities would not have access to critical services offered by public entities, which would undermine the purpose of the ADA. Commenters noted that delays in compliance may be particularly problematic in contexts such as voting and education, where delays could be particularly impactful given the time-sensitive nature of these programs. Another commenter who supported shorter time frames pointed out that the Department has entered into settlements with public entities requiring that their websites be made accessible in shorter amounts of time, such as a few months.
State and local government entities have been particularly concerned—now and in the past—about shorter compliance deadlines, often citing budgets and staffing as major limitations. For example, as noted in the NPRM, when WCAG 2.0 was relatively new, many public entities stated that they lacked qualified personnel to implement that standard. They told the Department that in addition to needing time to implement the changes to their websites, they also needed time to train staff or contract with professionals who are proficient in developing accessible websites. Considering all these factors, as well as the fact that over a decade has passed since the Department started receiving such feedback and there is now more available technology to make web content and mobile apps accessible, the Department believes a two-year compliance time frame for public entities with a total population of 50,000 or more is appropriate.
Public entities and the community of web developers have had more than a decade to familiarize themselves with WCAG 2.0, which was published in 2008 and serves as the foundation for WCAG 2.1, and more than five years to familiarize themselves with the additional 12 Level A and AA success criteria of WCAG 2.1.
Section 35.200(b)(2) sets forth the web content and mobile app accessibility requirements for public entities with a total population of less than 50,000 and special district governments. As noted in the preceding section, the 50,000 population threshold was chosen because it corresponds with the definition of “small governmental jurisdictions” in the Regulatory Flexibility Act.
The Department appreciates that small public entities may sometimes face unique challenges in making their web content and mobile apps accessible, given that small entities may have more limited or inflexible budgets than other entities. The Department is very sensitive to the need to craft a workable approach for small entities and has taken the needs of small public entities into account at every stage in the rulemaking process, consistent with the Regulatory Flexibility Act of 1980 and Executive Order 13272.
The Department has reviewed public comments, including a comment from the Small Business Administration Office of Advocacy,
Many commenters emphasized the challenges that small public entities may face in making their web content and mobile apps accessible. For example, some commenters reported that small public entities often have restricted, inflexible budgets, and might need to divert funds away from other government services in order to comply with subpart H of this part. Some commenters also asserted that the Department underestimated the costs that might be associated with bringing small public entities' web content and mobile apps into compliance. Some commenters noted that small public entities may lack technical expertise and dedicated personnel to work on accessibility issues. Commenters asserted that some small entities' web-based operations are decentralized, and that these entities would therefore need to train a large number of individuals on accessibility to ensure compliance. Commenters also contended that many small public entities may be dependent on third-party vendors to make their content accessible, and that there may be shortages in the number of web developers available to assist with remediation. Some commenters expressed concern that small entities would simply remove their web content rather than make it accessible. Commenters also expressed concern that public entities would need to devote scarce resources to defending against web accessibility lawsuits that might arise as a result of subpart H, which might further exacerbate these entities' budgetary challenges. The Department notes that public entities would not be required to undertake changes that would result in a fundamental alteration in the nature of a service, program, or activity, or impose undue financial and administrative burdens.
As a result of these concerns, some commenters suggested that the Department should create different or more flexible standards for small entities. For example, some commenters suggested that the Department should require small entities to conform to WCAG 2.0 instead of WCAG 2.1, to match the standards that are applicable to the Federal Government under section 508. One commenter suggested that the Department should require small public entities to comply only with WCAG 2.0 Level A, not Level AA. Other commenters advocating for small public entities suggested that those entities should have more time than larger public entities to comply with subpart H of this part, with suggested compliance time frames ranging from three to six years. Some commenters suggested the Department should adopt extended compliance dates for certain requirements of subpart H that may be more onerous. Commenters noted that having additional time to comply would help public entities allocate financial and personnel resources to bring their websites into compliance. A commenter stated that additional compliance time would also allow more web developers to become familiar with accessibility issues and more digital accessibility consultants to emerge, thereby lowering the cost of testing and consulting services. A commenter noted that some rural public entities may need extra time to bring their content into compliance but asserted that the Department should avoid adopting a compliance date so distant that it does not provide sufficient urgency to motivate those entities to address the issue.
Although many commenters expressed concerns about the impact of subpart H of this part on small public entities, many other commenters expressed opposition to creating different standards or compliance time frames for small entities. Commenters emphasized that people in rural areas might need to travel long distances to access in-person services and that such areas may lack public transportation or rideshare services. Given those considerations, commenters suggested that people with disabilities in small jurisdictions need access to web-based local government services just as much as, and sometimes more than, their counterparts in larger jurisdictions. Some commenters noted that people with disabilities may disproportionately reside in small towns or rural areas, and that it is therefore especially critical for those small and rural governments to have accessible web content and mobile apps. One commenter indicated that rural residents are 14.7 percent more likely than their urban counterparts to have a disability.
Commenters also noted that there are many factors that may make it easier for small public entities to comply. For example, some commenters suggested that small entities may have smaller or less complex websites than larger entities. Commenters noted that public entities may be able to make use of free, publicly available resources for checking accessibility and to save money by incorporating accessibility early in the process of content creation, instead of as an afterthought. Commenters also noted that public entities can avoid taking actions that are unduly burdensome by claiming the fundamental alteration or undue burdens limitations where appropriate.
One commenter argued that, because there are a limited number of third-party vendors that provide web content for public entities, a few major third-party vendors shifting towards accessibility as a result of increased demand stemming from subpart H of this part could have a cascading effect. This could make the content of many entities that use those vendors or their templates accessible by default. Commenters also noted that setting different technical standards for small public entities would create confusion for those attempting to implement needed accessibility changes. One commenter also contended that it may benefit small public entities to use a more recent version of WCAG because doing so may provide a better experience for all members of the public.
Some commenters pointed out that the challenges small public entities may face are not necessarily unique, and that many public entities, regardless of size, face budgetary constraints, staffing issues, and a need for training. In addition, some commenters noted that the size of a public entity may not
Having carefully considered these comments, the Department believes that subpart H of this part strikes the appropriate balance by requiring small public entities to comply with the same technical standard as larger public entities while giving small public entities additional time to do so. The Department believes this longer compliance time frame is prudent in recognition of the additional challenges that small public entities may face in complying, such as limited budgets, lack of technical expertise, and lack of personnel. The Department believes that providing an extra year for small public entities to comply will give those entities sufficient time to properly allocate their personnel and financial resources to make their web content and mobile apps conform to WCAG 2.1 Level AA, without providing so much additional time that individuals with disabilities have a reduced level of access to their State and local government entities' resources for an extended period.
The Department believes that having provided an additional year for small public entities to comply with subpart H of this part, it is appropriate to require those entities to comply with the same technical standard and conformance level as all other public entities. This approach ensures consistent levels of accessibility for public entities of all sizes in the long term, which will promote predictability and reduce confusion about which standard applies. It will allow for individuals with disabilities to know what they can expect when navigating a public entity's web content; for example, it will be helpful for individuals with disabilities to know that they can expect to be able to navigate any public entity's web content independently using their assistive technology. It also helps to ensure that individuals with disabilities who reside in rural areas have comparable access to their counterparts in urban areas, which is critical given the transportation and other barriers that people in rural areas may face.
Some commenters suggested that the Department should provide additional exceptions or flexibilities to small public entities. For example, the Small Business Administration suggested that the Department explore developing a wholesale exception to subpart H of this part for certain small public entities. The Department does not believe that setting forth a wholesale exception for small public entities would be appropriate for the same reasons that it would not be appropriate to adopt a different technical standard for those entities. Such an exception would mean that an individual with a disability who lives in a small, rural area, might not have the same level of access to their local government's web-based services, programs, and activities as an individual with a disability in a larger, urban area. This would significantly undermine consistency and predictability in web accessibility. It would also be particularly problematic given the interconnected nature of many different websites. Furthermore, an exception for small public entities would reduce the benefits of subpart H of this part for those entities. The Department has heard from public entities seeking clarity about how to comply with their nondiscrimination obligations under title II of the ADA when offering services via the web. Promulgating an exception for small public entities from the technical standard described in subpart H would not only hinder access for individuals with disabilities but would also leave those entities with no clear standard for how to satisfy their existing obligations under the ADA and the title II regulation.
Other commenters made alternative suggestions, such as making WCAG 2.1 Level AA compliance recommended but not required. The Department does not believe this suggestion is workable or appropriate. As discussed in the section entitled, “Inadequacy of Voluntary Compliance with Technical Standards,” and as the last few decades have shown, the absence of a mandatory technical standard for web content and mobile apps has not resulted in widespread equal access for people with disabilities. For subpart H of this part to have a meaningful effect, the Department believes it must set forth specific requirements so that both individuals with disabilities and public entities have clarity and predictability in terms of what the law requires. The Department believes that creating a recommended, non-mandatory technical standard would not provide this clarity or predictability and would instead largely maintain the status quo.
Some commenters suggested that the Department should allow small public entities to avoid making their web content and mobile apps accessible by instead offering services to individuals with disabilities via the phone, providing an accessibility disclaimer or statement, or offering services to individuals with disabilities through other alternative methods that are not web-based. As discussed in the section entitled “History of the Department's Title II Web-Related Interpretation and Guidance” and in the NPRM,
Many commenters also asked the Department to provide additional resources and guidance to help small entities comply. The Small Business Administration Office of Advocacy also highlighted the need for the Department to produce a small entity compliance guide.
Many commenters also expressed concern about the potential for an increase in litigation for small public entities as a result of subpart H of this part. Some commenters asked the Department to create a safe harbor or other flexibilities to protect small public entities from frivolous litigation. In part to address these concerns, subpart H includes a new section, at § 35.205, which states that a public entity that is not in full compliance with the requirements of § 35.200(b) will be deemed to have met the requirements of § 35.200 in the limited circumstance in which the public entity can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the public entity's web content or mobile app in a substantially equivalent manner as individuals without disabilities. As discussed at more length in the section-by-section analysis of § 35.205, the Department
One commenter asked the Department to state that public entities, including small ones, that are working towards conformance to WCAG 2.1 Level AA before the compliance dates are in compliance with the ADA and not engaging in unlawful discrimination. The Department notes that while the requirement to comply with the technical standard set forth in subpart H of this part is new, the underlying obligation to ensure that all services, programs, and activities, including those provided via the web and mobile apps, are accessible is not.
Some commenters asked the Department to provide additional flexibility for small public entities with respect to captioning requirements. A discussion of the approach to captioning in subpart H of this part can be found in the section entitled “Captions for Live-Audio and Prerecorded Content.” Some commenters also expressed that it would be helpful for small entities if the Department could provide additional guidance on how the undue burdens limitation operates in practice. Additional information on this issue can be found in the section-by-section analysis of § 35.204, entitled “Duties.” Some commenters asked the Department to add a notice-and-cure provision to subpart H to help protect small entities from liability. For the reasons discussed in the section-by-section analysis of § 35.205, entitled “Effect of noncompliance that has a minimal impact on access,” the Department does not believe this approach is appropriate.
In addition to small public entities, § 35.200(b)(2) also covers public entities that are special district governments. As previously noted, special district governments are governments that are authorized to provide a single function or a limited number of functions, such as a zoning or transit authority. As discussed elsewhere in this appendix, § 35.200 proposes different compliance dates according to the size of the Census-defined population of the public entity, or, for public entities without Census-defined populations, the Census-defined population of any State or local governments of which the public entity is an instrumentality or commuter authority. The Department believes applying to special district governments the same compliance date as small public entities (
The Department notes that some commenters opposed giving special district governments three years to comply with subpart H of this part. One commenter asserted that most special district governments are aware of the size of the regions they serve and would be able to determine whether they fall within the threshold for small entities. One commenter noted that some special district governments may serve larger populations and should therefore be treated like large public entities. Another commenter argued that a public entity that has sufficient administrative and fiscal autonomy to qualify as a separate government should have the means to comply with subpart H in a timely manner. However, as noted in the preceding paragraph, the Department is concerned that, because these special district governments do not have a population calculated by the Census Bureau and may not be instrumentalities of a public entity that does have a Census-calculated population, it is not clear that there is a straightforward way for these governments to calculate their precise population. The Department also understands that these governments have limited functions and may have particularly limited or constrained budgets in some cases. The Department therefore continues to believe it is appropriate to give these governments three years to comply.
In addition to asking that the compliance time frames be lengthened or shortened, commenters also suggested a variety of other alternatives and models regarding how § 35.200's compliance time frames could be structured. Commenters proposed that existing content be treated differently than new content by, for example, requiring that new content be made accessible first and setting delayed or deferred compliance time frames for existing content. Other commenters suggested that the Department use a “runway” or “phase in” model. Under this model, commenters suggested, the Department could require conformance to some WCAG success criteria sooner than others. Commenters also suggested a phase-in model where public entities would be required to prioritize certain types of content, such as making all frequently used content conform to WCAG 2.1 Level AA first.
Because § 35.200 gives public entities two or three years to come into compliance depending on entity size, public entities have the flexibility to structure their compliance efforts in the manner that works best for them. This means that if public entities want to prioritize certain success criteria or content during the two or three years before the compliance date—while still complying with their existing obligations under title II—they have the flexibility to do so. The Department believes that this flexibility appropriately acknowledges that different public entities might have unique needs based on the type of content they provide, users that they serve, and resources that they have or procure. The Department, therefore, is not specifying certain criteria or types of content that should be prioritized. Public entities have the flexibility to determine how to make sure they comply with § 35.200 in the two- or three-year period before which compliance with § 35.200 is first required. After the compliance date, ongoing compliance is required.
In addition, the Department believes that requiring only new content to be accessible or using another method for prioritization could lead to a significant accessibility gap for individuals with disabilities if public entities rely on content that is not regularly updated or changed. The Department notes that unless otherwise covered by an exception, subpart H of this part requires that new and existing content be made accessible within the meaning of § 35.200 after the date initial compliance is required. Because some exceptions in § 35.201 only apply to preexisting content, the Department believes it is likely that public entities' own newly created or added content will largely need to comply with § 35.200 because such content may not qualify for exceptions. For more information about how the exceptions under
Commenters also suggested that public entities be required to create transition plans like those discussed in the existing title II regulation at §§ 35.105 and 35.150(d). The Department does not believe it is appropriate to require transition plans as part of subpart H of this part for several reasons. Public entities are already required to ensure that their services, programs, and activities, including those provided via the web or mobile apps, meet the requirements of the ADA. The Department expects that many entities already engage in accessibility planning and self-evaluation to ensure compliance with title II. By not being prescriptive about the type of planning required, the Department will allow public entities flexibility to build on existing systems and processes or develop new ones in ways that work for each entity. Moreover, the Department has not adopted new self-evaluation and transition plan requirements in other sections in this part in which it adopted additional technical requirements, such as in the 2010 ADA Standards for Accessible Design.
As discussed at greater length in the section-by-section analysis of § 35.204, subpart H of this part provides that where a public entity can demonstrate that compliance with the requirements of § 35.200 would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens, compliance with § 35.200 is only required to the extent that it does not result in a fundamental alteration or undue financial and administrative burdens. For example, where it would impose undue financial and administrative burdens to conform to WCAG 2.1 Level AA (or part of WCAG 2.1 Level AA), public entities would not be required to remove their web content and mobile apps, forfeit their web presence, or otherwise undertake changes that would be unduly financially and administratively burdensome. These limitations on a public entity's duty to comply with the regulatory provisions in subpart H of this part mirror the fundamental alteration or undue burdens limitations currently provided in the title II regulation in §§ 35.150(a)(3) (existing facilities) and 35.164 (effective communication) and the fundamental alteration limitation currently provided in the title II regulation in § 35.130(b)(7) (reasonable modifications in policies, practices, or procedures).
If a public entity believes that a proposed action would fundamentally alter a service, program, or activity or would result in undue financial and administrative burdens, the public entity has the burden of proving that compliance would result in such an alteration or such burdens. The decision that compliance would result in such an alteration or such burdens must be made by the head of the public entity or their designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. As set forth in § 35.200(b)(1) and (2), if an action required to comply with the accessibility standard in subpart H of this part would result in such an alteration or such burdens, a public entity must take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the public entity. Section 35.204, entitled “Duties,” lays out the circumstances in which an alteration or such burdens can be claimed. For more information, see the discussion regarding limitations on obligations in the section-by-section analysis of § 35.204.
In the NPRM, the Department asked questions about the standards that should apply to two particular types of content: social media platforms and captions for live-audio content.
Public entities are increasingly using social media platforms to provide information and communicate with the public about their services, programs, or activities in lieu of or in addition to engaging the public on the public entities' own websites. Consistent with the NPRM, the Department is using the term “social media platforms” to refer to websites or mobile apps of third parties whose primary purpose is to enable users to create and share content in order to participate in social networking (
Subpart H of this part requires that web content and mobile apps that public entities provide or make available, directly or through contractual, licensing, or other arrangements, be made accessible within the meaning of § 35.200. This requirement applies regardless of whether that content is located on the public entity's own website or mobile app or elsewhere on the web or in mobile apps. The requirement therefore covers web content or content in a mobile app that a public entity makes available via a social media platform. With respect to social media posts that are posted before the compliance date, however, the Department has decided to add an exception, which is explained more in the section-by-section analysis of § 35.201(e), “Preexisting Social Media Posts”.
Many social media platforms that are widely used by members of the public are available to members of the public separate and apart from any arrangements with public entities to provide a service, program, or activity. As a result, subpart H of this part does not require public entities to ensure that such platforms themselves conform to WCAG 2.1 Level AA. However, because the posts that public entities disseminate through those platforms are provided or made available by the public entities, the posts generally must conform to WCAG 2.1 Level AA. The Department understands that social media platforms often make available certain accessibility features like the ability to add captions or alt text. It is the public entity's responsibility to use these features when it makes web content available on social media platforms.
The Department received many comments explaining the importance of social media to accessing public entities' services, programs, or activities. Both public entities and disability advocates shared many examples of public entities using social media to transmit time-sensitive and emergency information, among other information, to the public. The vast majority of these commenters supported covering social media posts in subpart H of this part. Commenters specifically pointed to examples of communications designed to help the public understand what actions to take during and after public emergencies, and commenters noted that these types of communications need to be accessible to individuals with disabilities. Commenters from public entities and trade groups representing public accommodations opposed the coverage of social media posts in subpart H, arguing that social media is more like advertising. These commenters also said it is difficult to make social media content accessible because the platforms sometimes do not enable accessibility features.
The Department agrees with the many commenters who opined that social media posts should be covered by subpart H of this part. The Department believes public entities should not be relieved from their duty under subpart H to provide accessible content to the public simply because that content is being provided through a social media platform. The Department was particularly persuaded by the many examples that commenters shared of emergency and time-sensitive communications that public entities share
The Department received several comments explaining that social media platforms sometimes have limited accessibility features, which can be out of public entities' control. Some of these commenters suggested that the Department should prohibit or otherwise limit a public entity's use of inaccessible social media platforms when the public entity cannot ensure accessibility of the platform. Other commenters shared that even where there are accessibility features available, public entities frequently do not use them. The most common example of this issue was public entities failing to use alt text, and some commenters also shared that public entities frequently use inaccessible links. Several commenters also suggested that the Department should provide that where the same information is available on a public entity's own accessible website, public entities should be considered in compliance with this part even if their content on social media platforms cannot be made entirely accessible.
The Department declines to modify subpart H of this part in response to these commenters, because the Department believes the framework in subpart H balances the appropriate considerations to ensure equal access to public entities' postings to social media. Public entities must use available accessibility features on social media platforms to ensure that their social media posts comply with subpart H. However, where public entities do not provide social media platforms as part of their services, programs, or activities, they do not need to ensure the accessibility of the platform as a whole. Finally, the Department is declining to adopt the alternative suggested by some commenters that where the same information is available on a public entity's own accessible website, the public entity should be considered in compliance with subpart H. The Department heard concerns from many commenters about allowing alternative accessible versions when the original content itself can be made accessible. Disability advocates and individuals with disabilities shared that this approach has historically resulted in inconsistent and dated information on the accessible version and that this approach also creates unnecessary segregation between the content available for individuals with disabilities and the original content. The Department agrees with these concerns and therefore declines to adopt this approach. Social media posts enable effective outreach from public entities to the public, and in some cases social media posts may reach many more people than a public entity's own website. The Department sees no acceptable reason why individuals with disabilities should be excluded from this outreach.
The Department received a few other comments related to social media, suggesting for example that the Department adopt guidance on making social media accessible instead of covering social media in subpart H of this part, and suggesting that the Department require inclusion of a disclaimer with contact information on social media platforms so that the public can notify a public entity about inaccessible content. The Department believes that these proposals would be difficult to implement in a way that would ensure content is proactively made accessible, rather than reactively corrected after it is discovered to be inaccessible, and thus the Department declines to adopt these proposals.
WCAG 2.1 Level AA Success Criterion 1.2.4 requires captions for live-audio content in synchronized media.
As proposed in the NPRM,
The Department solicited comments to inform this approach, seeking input on the proposed compliance timeline, the type of live-audio content that entities make available through the web or mobile apps, and the cost of providing captioning for live-audio content for entities of all sizes.
A smaller number of commenters urged the Department to adopt a longer compliance time frame in order to allow live-captioning technology to develop further. Some of these commenters supported a longer time frame for smaller entities in particular, which may have fewer resources or budgetary flexibility to comply. Others supported a longer time frame for larger entities because they are likely to have more content to caption. Commenters also noted the difficulty that public entities sometimes encounter in the availability of quality professional live captioners and the lead time necessary to reserve those services, but at the same time noted that public entities do not necessarily want to rely on automatically generated captioning in all scenarios because it may be insufficient for an individual's needs.
Commenters shared that public entities make many types of live-audio content available, including town hall meetings, board meetings, and other public engagement meetings; emergency-related and public-service announcements or information; special events like graduations, conferences, or symposia; online courses; and press conferences. Commenters also posed questions about whether Success Criterion
Success Criterion 1.2.4 is crucial for individuals with disabilities to access State and local government entities' live services, programs, or activities. The Department believes that setting a different compliance date would only delay this essential access and leave people who are deaf or have hearing disabilities at a particular disadvantage in accessing these critical services. It also would hinder access for people with a variety of other disabilities, including cognitive disabilities.
The Department believes that the compliance dates set forth in subpart H of this part will give public entities sufficient time to locate captioning resources and implement or enhance processes to ensure they can get captioning services when needed. Captioning services are also likely to continue to expand. Given the quick acceleration in the availability of captioning technology during the COVID-19 pandemic, the Department believes that public entities' capacity as well as the technology and personnel on which they rely will be able to continue to develop quickly.
The Department declines to establish a different compliance time frame for Success Criterion 1.2.4 for other reasons as well. This success criterion in WCAG 2.1 was also part of WCAG 2.0, which was finalized in 2008. As a result, the Department expects that public entities and associated web developers will be able to become familiar with it quickly, if they are not already familiar. Additionally, setting a separate compliance date for one success criterion could result in confusion and additional difficulty, as covered entities would need to separately keep track of when they need to meet the live-audio captioning success criterion and bifurcate their compliance planning. The Department also does not see a sufficient reason to distinguish this success criterion from others as meriting a separate timeline, particularly when this criterion has existed since 2008 and is so essential for individuals who are deaf or have hearing disabilities. For these reasons, and because of the need for individuals with disabilities to access State and local government entities' live programs, services, and activities, subpart H of this part establishes a uniform compliance date for all success criteria in subpart H.
Commenters also expressed a range of opinions about whether using automatically generated captions instead of professional live-captioning services would be sufficient to comply with Success Criterion 1.2.4. These commenters noted that automatic captions are a widely available option that is low cost for public entities and will likely continue to improve, perhaps eventually surpassing the quality of professional live-captioning services. However, commenters also pointed out that automatic captions may not be sufficient in many contexts such as virtual classrooms or courtrooms, where mistakes in identifying a speaker, word, or punctuation can significantly change the meaning and the participant with a disability needs to be able to respond in real time. Commenters also argued, though, that requiring human captioners in all circumstances may lead to public entities making fewer meetings, hearings, courses, and other live-audio content available online due to cost and availability of captioners, which could have a detrimental effect on overall access to these services for people with mobility and other disabilities. Public entities noted that automatic captioning as part of services like Zoom does not cost them anything beyond the Zoom license, but public entities and the Small Business Administration reported that costs can be much higher for human-generated captions for different types of content over the course of a year.
To balance these competing concerns, commenters supported requiring captions in general, but proposed a variety of tiered approaches such as: a default of human-generated captions with automatic captions as a last resort; automatic captions as a default with human-generated captions when an individual with a disability requests them; or human-generated captions as a default for events with a wide audience like graduations, but automatic captions as a default for private meetings and courses, unless human-generated captions are requested. An accessible technology industry member urged the Department to just require captions that provide “equivalent access” to live-audio content, rather than mandate a particular type of captioning.
After consideration of commenters' concerns and its independent assessment, the Department does not believe it is prudent to prescribe captioning requirements beyond the WCAG 2.1 Level AA requirements, whether by specifying a numerical accuracy standard, a method of captioning that public entities must use to satisfy this success criterion, or other measures. The Department recognizes commenters' concerns that automatic captions are currently not sufficiently accurate in many contexts, including contexts involving technical or complex issues. The Department also notes that informal guidance from W3C provides that automatic captions are not sufficient on their own unless they are confirmed to be fully accurate, and that they generally require editing to reach the requisite level of accuracy.
Rather than specify a particular accuracy level or method of satisfying Success Criterion 1.2.4 at this time, subpart H of this part provides public entities with the flexibility to determine the best way to comply with this success criterion based on current technology. The Department further encourages public entities to make use of W3C's and others' guidance documents available on captioning, including the informal guidance mentioned in the preceding paragraph.
Some commenters expressed similar concerns related to captioning requirements for prerecorded (
The same reasoning discussed regarding Success Criterion 1.2.4 also applies to
Section 35.200 requires public entities to make their web content and mobile apps accessible by complying with a technical standard for accessibility—WCAG 2.1 Level AA. However, some types of content do not have to comply with the technical standard in certain situations. The Department's aim in setting forth exceptions was to make sure that individuals with disabilities have ready access to public entities' web content and mobile apps, especially those that are current, commonly used, or otherwise widely needed, while also ensuring that practical compliance with subpart H of this part is feasible and sustainable for public entities. The exceptions help to ensure that compliance with subpart H is feasible by enabling public entities to focus their resources on making frequently used or high impact content WCAG 2.1 Level AA compliant first.
Under § 35.201, the following types of content generally do not need to comply with the technical standard for accessibility—WCAG 2.1 Level AA: (1) archived web content; (2) preexisting conventional electronic documents, unless they are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities; (3) content posted by a third party; (4) individualized, password-protected or otherwise secured conventional electronic documents; and (5) preexisting social media posts. The Department notes that if web content or content in mobile apps is covered by one exception, the content does not need to conform to WCAG 2.1 Level AA to comply with subpart H of this part, even if the content fails to qualify for another exception.
However, as discussed in more detail later in this section-by-section analysis, there may be situations in which the content otherwise covered by an exception must still be made accessible to meet the needs of an individual with a disability under existing title II requirements.
The previously listed exceptions are those included in § 35.201. They differ in some respects from those exceptions proposed in the NPRM. The Department made changes to the proposed exceptions identified in the NPRM after consideration of the public comments and its own independent assessment. Notably, § 35.201 does not include exceptions for password-protected course content in elementary, secondary, and postsecondary schools, which had been proposed in the NPRM.
The Department heard a range of views from public commenters on the exceptions proposed in the NPRM. The Department heard from some commenters that exceptions are necessary to avoid substantial burdens on public entities and would help public entities determine how to allocate their limited resources in terms of which content to make accessible more quickly, especially when initially determining how best to ensure they can start complying with § 35.200 by the compliance date. The Department heard that public entities often have large volumes of content that are archived, or documents or social media posts that existed before subpart H of this part was promulgated. The Department also heard that although making this content available online is important for transparency and ease of access, this content is typically not frequently used and is likely to be of interest only to a discrete population. Such commenters also emphasized that making such content, like old PDFs, accessible by the compliance date would be quite difficult and time consuming. Some commenters also expressed that the exceptions may help public entities avoid uncertainty about whether they need to ensure accessibility in situations where it might be extremely difficult—such as for large quantities of archived materials retained only for research purposes or where they have little control over content posted to their website by unaffiliated third parties. Another commenter noted that public entities may have individualized documents that apply only to individual members of the public and that in most cases do not need to be accessed by a person with a disability.
On the other hand, the Department has also heard from commenters who objected to the inclusion of exceptions. Many commenters who objected to the inclusion of exceptions cited the need for all of public entities' web content and mobile apps to be accessible to better ensure predictability and access for individuals with disabilities to critical government services. Some commenters who opposed including exceptions also asserted that a title II regulation need not include any exceptions to its specific requirements because the compliance limitation for undue financial and administrative burdens would suffice to protect public entities from any overly burdensome requirements. Some commenters argued that the exceptions would create loopholes that would result in public entities not providing sufficient access for individuals with disabilities, which could undermine the purpose of subpart H of this part.
Commenters also contended that the proposed exceptions create confusion about what is covered and needs to conform to WCAG 2.1, which creates difficulties with compliance for public entities and barriers for individuals with disabilities seeking to access public entities' web content or mobile apps. Some commenters also noted that there are already tools that can help public entities make web content and mobile apps accessible, such that setting forth exceptions for certain content is not necessary to help public entities comply.
After consideration of the various public comments and after its independent assessment, the Department is including, with some refinements, five exceptions in § 35.201. As noted in the preceding paragraphs and as will be discussed in greater detail, the Department is not including in the final regulations three of the exceptions that were proposed in the NPRM, but the Department is also adding an exception for preexisting social media posts that it previewed in the NPRM. The five particular exceptions included in § 35.201 were crafted with careful consideration of which discrete types of content would promote as much clarity and certainty as possible for individuals with disabilities as well as for public entities when determining which content must conform to WCAG 2.1 Level AA, while also still promoting accessibility of web content and mobile apps overall. The limitations for actions that would require fundamental alterations or result in undue burdens would not provide, on their own, the same level of clarity and certainty. The rationales with respect to each individual exception are discussed in more detail in the section-by-section analysis of each exception. The Department believes that including these five exceptions, and clarifying situations in which content covered by an exception might still need to be made accessible, strikes the appropriate balance between ensuring access for individuals with disabilities and feasibility for public entities so that they can comply with § 35.200, which will ensure greater accessibility moving forward.
The Department was mindful of the pragmatic concern that, should subpart H of this part require actions that are likely to result in fundamental alterations or undue burdens for large numbers of public entities or large swaths of their content, subpart H could in practice lead to fewer impactful improvements for accessibility across the board as public entities encountered these limitations. The Department believes that such a rule could result in public entities' prioritizing accessibility of content that is “easy” to make accessible, rather than content that is essential, despite the spirit and letter of the rule. The Department agrees with commenters that clarifying that public
The Department understands and appreciates that including exceptions for certain types of content reduces the content that would be accessible at the outset to individuals with disabilities. The Department aimed to craft the exceptions with an eye towards providing exceptions for content that would be less commonly used by members of the public and would be particularly difficult for public entities to make accessible quickly. And the Department reiterates that subpart H of this part is adding specificity into the existing title II regulatory framework when it comes to web content and mobile apps. The Department emphasizes that, even if certain content does not have to conform to the technical standard, public entities still need to ensure that their services, programs, and activities offered using web content and mobile apps are accessible to individuals with disabilities on a case-by-case basis in accordance with their existing obligations under title II of the ADA. These obligations include making reasonable modifications to avoid discrimination on the basis of disability, ensuring that communications with people with disabilities are as effective as communications with people without disabilities, and providing people with disabilities an equal opportunity to participate in or benefit from the entity's services, programs, and activities.
The following discussion provides information on each of the exceptions, including a discussion of public comments.
Public entities may retain a significant amount of archived content, which may contain information that is outdated, superfluous, or replicated elsewhere. The Department's understanding is that, generally, this historic information is of interest to only a small segment of the general population. The Department is aware and concerned, however, that based on current technologies, public entities would need to expend considerable resources to retroactively make accessible the large quantity of historic or otherwise outdated information that public entities created in the past and that they may need or want to make available on their websites. Thus, § 35.201(a) provides an exception from the requirements of § 35.200 for web content that meets the definition of “archived web content” in § 35.104.
The Department anticipates that public entities may retain various types of web content consistent with the exception for archived web content. For example, a town might create a web page for its annual parade. In addition to providing current information about the time and place of the parade, the web page might contain a separate archived section with several photos or videos from the parade in past years. The images and videos would likely be covered by the exception if they were created before the date the public entity is required to comply with subpart H of this part, are reproductions of paper documents created before the date the public entity is required to comply with subpart H, or are reproductions of the contents of other physical media created before the date the public entity is required to comply with subpart H; they are only used for reference, research, or recordkeeping; they are not altered or updated after they are posted in the archived section of the web page; and the archived section of the web page is clearly identified. Similarly, a municipal court may have a web page that includes links to download PDF documents that contain a photo and short biography of past judges who are retired. If the PDF documents were created before the date the public entity is required to comply with subpart H, are reproductions of paper documents created before the date the public entity is required to comply with subpart H, or are reproductions of the contents of other physical media created before the date the public entity is required to comply with subpart H; they are only used for reference, research, or recordkeeping; they are not altered or updated after they are posted; and the web page with the links to download the documents is clearly identified as being an archive, the documents would likely be covered by the exception. The Department reiterates that these examples are meant to be illustrative and that the analysis of whether a given piece of web content meets the definition of “archived web content” depends on the specific circumstances.
The Department recognizes, and commenters emphasized, that archived information may be of interest to some members of the public, including some individuals with disabilities, who are conducting research or are otherwise interested in these historic documents. Furthermore, some commenters expressed concerns that public entities would begin (or already are in some circumstances) improperly moving content into an archive. The Department emphasizes that under this exception, public entities may not circumvent their accessibility obligations by merely labeling their web content as “archived” or by refusing to make accessible any content that is old. The exception focuses narrowly on content that satisfies all four of the criteria necessary to qualify as “archived web content,” namely web content that was created before the date the public entity is required to comply with subpart H of this part, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H; is retained exclusively for reference, research, or recordkeeping; is not altered or updated after the date of archiving; and is organized and stored in a dedicated area or areas clearly identified as being archived. If any one of those criteria is not met, the content does not qualify as “archived web content.” For example, if an entity maintains content for any purpose other than reference, research, or recordkeeping, then that content would not fall within the exception regardless of the date it was created, even if an entity labeled it as “archived” or stored it in an area clearly identified as being archived. Similarly, an entity would not be able to circumvent its accessibility obligations by moving web content containing meeting minutes or agendas related to meetings that take place after the date the public entity is required to comply with subpart H from a non-archived section of its website to an archived section, because such newly created content would likely not satisfy the first part of the definition based on the date it was created. Instead, such
The Department received comments both supporting and opposing the exception. In support of the exception, commenters highlighted various benefits. For example, commenters noted that remediating archived web content can be very burdensome, and the exception allows public entities to retain content they might otherwise remove if they had to make the content conform to WCAG 2.1 Level AA. Some commenters also agreed that public entities should prioritize making current and future web content accessible.
In opposition to the exception, commenters highlighted various concerns. For example, some commenters stated that the exception perpetuates unequal access to information for individuals with disabilities, and it continues to inappropriately place the burden on individuals with disabilities to identify themselves to public entities, request access to content covered by the exception, and wait for the request to be processed. Some commenters also noted that the exception is not necessary because the compliance limitations for fundamental alteration and undue financial and administrative burdens would protect public entities from any unrealistic requirements under subpart H of this part.
The Department has decided to keep the exception in § 35.201. After reviewing the range of different views expressed by commenters, the Department continues to believe that the exception appropriately encourages public entities to utilize their resources to make accessible the critical up-to-date materials that are most consistently used to access public entities' services, programs, or activities. The Department believes the exception provides a measure of clarity and certainty for public entities about what is required of archived web content. Therefore, resources that might otherwise be spent making accessible large quantities of historic or otherwise outdated information available on some public entities' websites are freed up to focus on important current and future web content that is widely and frequently used by members of the public. However, the Department emphasizes that the exception is not without bounds. As discussed in the preceding paragraphs, archived web content must meet all four parts of the archived web content definition in order to qualify for the exception. Content must meet the time-based criteria specified in the first part of the definition. The Department believes the addition of the first part of the definition will lead to greater predictability about the application of the exception for individuals with disabilities and public entities. In addition, web content that is used for something other than reference, research, or recordkeeping is not covered by the exception.
The Department understands the concerns raised by commenters about the burdens that individuals with disabilities may face because archived web content is not required to conform to WCAG 2.1 Level AA. The Department emphasizes that even if certain content does not have to conform to the technical standard, public entities still need to ensure that their services, programs, and activities offered using web content are accessible to individuals with disabilities on a case-by-case basis in accordance with their existing obligations under title II. These obligations include making reasonable modifications to avoid discrimination on the basis of disability, ensuring that communications with people with disabilities are as effective as communications with people without disabilities, and providing people with disabilities an equal opportunity to participate in or benefit from the entity's services, programs, or activities.
Some commenters suggested that the Department should require public entities to adopt procedures and timelines for how individuals with disabilities could request access to inaccessible archived web content covered by the exception. The Department declines to make specific changes to the exception in response to these comments. The Department reiterates that, even if content is covered by this exception, public entities still need to ensure that their services, programs, and activities offered using web content are accessible to individuals with disabilities on a case-by-case basis in accordance with their existing obligations under title II.
Some commenters suggested that this part should require a way for users to search through archived web content, or information about the contents of the archive should otherwise be provided, so individuals with disabilities can identify what content is contained in an archive. Some other commenters noted that searching through an archive is inherently imprecise and involves sifting through many documents, but the exception places the burden on individuals with disabilities to know exactly which archived documents to request in accessible formats. After carefully considering these comments, the Department decided not to change the text of this part. The Department emphasizes that web content that is not archived, but instead notifies users about the existence of archived web content and provides users access to archived web content, generally must still conform to WCAG 2.1 Level AA. Therefore, the Department anticipates that members of the public will have information about what content is contained in an archive. For example, a public entity's archive may include a list of links to download archived documents. Under WCAG 2.1 Success Criterion 2.4.4, a public entity would generally have to provide sufficient information in the text of the link alone, or
Some commenters suggested that public entities should ensure that the systems they use to retain and store archived web content do not convert the content into an inaccessible format. The Department does not believe it is necessary to make updates to this part in response to these comments. Content that does not meet the definition of “archived web content” must generally conform to WCAG 2.1 Level AA, unless it qualifies for another exception, so public entities would not be in compliance with subpart H of this part if they stored such content using a system that converts accessible web content into an inaccessible format. The Department anticipates that public entities will still move certain newly created web content into an archive alongside historic content after the date they are required to comply with subpart H, even though the newly created content will generally not meet the definition of “archived web content.” For example, after the time a city is required to comply with subpart H, the city might post a PDF flyer on its website identifying changes to the dates its sanitation department will pick up recycling around a holiday. After the date of the holiday passes, the city might move the flyer to an archive along with other similar historic flyers. Because the newly created flyer would not meet the first part of the definition of “archived web content,” it would generally need to conform to WCAG 2.1 Level AA even after it is moved into an archive. Therefore, the city would need to ensure its system for retaining and storing archived web content does not convert the flyer into an inaccessible format.
Some commenters also suggested that the exception should not apply to public entities whose primary function is to provide or make available what commenters perceived as archived web content, such as some libraries, museums, scientific research organizations, or state or local government agencies that provide birth or death records. Commenters expressed concern that the exception could be interpreted to cover the entirety of such entities' web content. The Department reiterates that whether archived web content is retained exclusively for reference, research, or recordkeeping depends on the particular circumstances. For example, a city's research library may have both archived and non-archived web content related to a city park. If the library's collection included a current map of the park that was created by the city, that map would likely not be retained exclusively for reference, research, or recordkeeping, as it is a current part of the city's program of providing and maintaining a park. Furthermore, if the map was newly created after the date the public entity was required to comply with subpart H of this part, and it does not reproduce paper documents or the contents of other physical media created before the date the public entity was required to comply with subpart H, the map would likely not meet the first part of the definition of “archived web content.” In addition, the library may decide to curate and host an exhibition on its website about the history of the park, which refers to and analyzes historic web content pertaining to the park that otherwise meets the definition of “archived web content.” All content used to deliver the online exhibition likely would not be used exclusively for reference, research, or recordkeeping, as the library is using the materials to create and provide a new educational program for the members of the public. The Department believes the exception, including the definition of “archived web content,” provides a workable framework for determining whether all types of public entities properly designate web content as archived.
In the NPRM, the Department asked commenters about the relationship between the content covered by the archived web content exception and the exception for preexisting conventional electronic documents set forth in § 35.201(b).
The Department recognizes that there may be some overlap between the content covered by the archived web content exception and the exception for preexisting conventional electronic documents set forth in § 35.201(b). The Department notes that if web content is covered by the archived web content exception, it does not need to conform to WCAG 2.1 Level AA to comply with subpart H of this part, even if the content fails to qualify for another exception, such as the preexisting conventional electronic document exception. For example, after the date a public university is required to comply with subpart H, its athletics website may still include PDF documents containing the schedules for sports teams from academic year 2017-2018 that were posted in non-archived areas of the website in the summer of 2017. Those PDFs may be covered by the preexisting conventional electronic documents exception because they were available on the university's athletics website prior to the date it was required to comply with subpart H, unless they are currently used to apply for, gain access to, or participate in a public entity's services, programs, or activities, in which case, as discussed in more detail in the section-by-section analysis of § 35.201(b), they would generally need to conform to WCAG 2.1 Level AA. However, if the university moved the PDFs to an archived area of its athletics site and the PDFs satisfied all parts of the definition of “archived web content,” the documents would not need to conform to WCAG 2.1 Level AA, regardless of how the preexisting conventional electronic document exception might otherwise have applied, because the content would fall within the archived web content exception.
Some commenters also made suggestions about public entities' practices and procedures related to archived web content, but these suggestions fall outside the scope of this part. For example, some commenters stated that public entities' websites should not contain archived materials, or that all individuals should have to submit request forms to access archived materials. The Department did not make any changes to this part in response to these comments because this part is not intended to control whether public entities can choose to retain archived material in the first instance, or whether members of the public must follow certain steps to access archived web content.
Section 35.201(b) provides that conventional electronic documents that are available as part of a public entity's web content or mobile apps before the date the public entity is required to comply with subpart H of this part do not have to comply with the accessibility requirements of § 35.200, unless such documents are currently used to apply for, gain access to, or participate in a public entity's services, programs, or activities. As discussed in the section-by-section analysis of § 35.104, the term “conventional electronic documents” is defined in § 35.104 to mean web content or content in mobile apps that is in the following electronic file formats: portable document formats, word processor file formats, presentation file formats, and spreadsheet file formats. This list of
Because of the substantial number of conventional electronic documents that public entities make available through their web content and mobile apps, and because of the personnel and financial resources that would be required for public entities to remediate all preexisting conventional electronic documents to make them accessible after the fact, the Department believes public entities should generally focus their personnel and financial resources on developing new conventional electronic documents that are accessible and remediating existing conventional electronic documents that are currently used to access the public entity's services, programs, or activities. For example, if before the date a public entity is required to comply with subpart H of this part the entity's website contains a series of out-of-date PDF reports on local COVID-19 statistics, those reports generally need not conform to WCAG 2.1 Level AA. Similarly, if a public entity maintains decades' worth of water quality reports in conventional electronic documents on the same web page as its current water quality report, the old reports that were posted before the date the entity was required to comply with subpart H generally do not need to conform to WCAG 2.1 Level AA. As the public entity posts new reports going forward, however, those reports generally must conform to WCAG 2.1 Level AA.
The Department modified the language of this exception from the NPRM. In the NPRM, the Department specified that the exception applied to conventional electronic documents “created by or for a public entity” that are available “on a public entity's website or mobile app.” The Department believes the language “created by or for a public entity” is no longer necessary in the regulatory text of the exception itself because the Department updated the language of § 35.200 to clarify the overall scope of content generally covered by subpart H of this part. In particular, the text of § 35.200(a)(1) and (2) now states that subpart H applies to all web content and mobile apps that a public entity provides or makes available either directly or through contractual, licensing, or other arrangements. Section 35.201(b), which is an exception to the requirements of § 35.200, is therefore limited by the new language added to the general section. In addition, the Department changed the language “that are available on a public entity's website or mobile app” to “that are available as part of a public entity's web content or mobile apps” to ensure consistency with other parts of the regulatory text by referring to “web content” rather than “websites.” Finally, the Department removed the phrase “members of the public” from the language of the exception in the proposed rule for consistency with the edits to § 35.200 aligning the scope of subpart H with the scope of title II of the ADA, as described in the explanation of § 35.200 in the section-by-section analysis.
Some commenters sought clarification about how to determine whether a conventional electronic document is “preexisting.” They pointed out that the date a public entity posted or last modified a document may not necessarily reflect the actual date the document was first made available to members of the public. For example, a commenter noted that a public entity may copy its existing documents unchanged into a new content management system after the date the public entity is required to comply with subpart H of this part, in which case the date stamp of the documents will reflect the date they were copied rather than the date they were first made available to the public. Another commenter recommended that the exception should refer to the date a document was “originally” posted to account for circumstances in which there is an interruption to the time the document is provided or made available to members of the public, such as when a document is temporarily not available due to technical glitches or server problems.
The Department believes the exception is sufficiently clear. Conventional electronic documents are preexisting if a public entity provides them or makes them available prior to the date the public entity is required to comply with subpart H of this part. While one commenter recommended that the exception should not apply to documents provided or made available during the two- or three-year compliance timelines specified in § 35.200(b), the Department believes the timelines specified in that section are the appropriate time frames for assessing whether a document is preexisting and requiring compliance with subpart H. If a public entity changes or revises a preexisting document following the date it is required to comply with subpart H, the document would no longer be “preexisting” for the purposes of the exception. Whether documents would still be preexisting if a public entity generally modifies or updates the entirety of its web content or mobile apps after the date it is required to comply with subpart H would depend on the particular facts and circumstances. For example, if a public entity moved all of its web content, including preexisting conventional electronic documents, to a new content management system, but did not change or revise any of the preexisting documents when doing so, the documents would likely still be covered by the exception. In contrast, if the public entity decided to edit the content of certain preexisting documents in the process of moving them to the new content management system, such as by updating the header of a benefits application form to reflect the public entity's new mailing address, the updated documents would no longer be preexisting for the purposes of the exception. The Department emphasizes that the purpose of the exception is to free up public entities' resources that would otherwise be spent focusing directly on preexisting documents covered by the exception.
Because the exception only applies to preexisting conventional electronic documents, it would not cover documents that are open for editing if they are changed or revised after the date a public entity is required to comply with subpart H of this part. For example, a town may maintain an editable word processing file, such as a Google Docs file, that lists the dates on which the town held town hall meetings. The town may post a link to the document on its website so members of the public can view the document online in a web browser, and it may update the contents of the document over time after additional meetings take place. If the document was posted to the town's website prior to the date it was required to comply with subpart H, it would be a preexisting conventional electronic document unless the town added new dates to the document after the date it was required to comply with subpart H. If the town made such additions to the document, the document would no longer be preexisting. Nevertheless, there are some circumstances where conventional electronic documents may be covered by the exception even if copies of the documents can be edited after the date the public entity is required to comply with subpart H. For example, a public entity may post a Microsoft Word version of a flyer on its website prior to the date it is required to comply with subpart H. A member of the public could technically download and edit that Word document after the date the public entity is required to comply with subpart H, but their edits would not impact the “official” posted version. Therefore, the official version would still qualify as preexisting under the exception. Similarly, PDF files that include fillable form fields (
This exception is not without bounds: it does not apply to any preexisting documents that are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities. In referencing “documents that are currently used,” the Department intends to cover documents that are used at any given point in the future, not just at the moment in time when the final rule is published. For example, a public entity generally must make a preexisting PDF application for a business license conform to WCAG 2.1 Level AA if the document is still currently used. The Department notes that preexisting documents are also not covered by the exception if they provide instructions or guidance related to other documents that are directly used to apply for, gain access to, or participate in the public entity's services, programs, or activities. Therefore, in addition to making the aforementioned preexisting PDF application for a business license conform to WCAG 2.1 Level AA, public entities generally must also make other preexisting documents conform to WCAG 2.1 Level AA if they may be needed to obtain the license, complete the application, understand the process, or otherwise take part in the program, such as business license application instructions, manuals, sample knowledge tests, and guides, such as “Questions and Answers” documents.
Various commenters sought additional clarification about what it means for conventional electronic documents to be “used” in accordance with the limited scope of the exception. In particular, commenters questioned whether informational documents are used by members of the public to apply for, gain access to, or participate in a public entity's services, programs, or activities. Some commenters expressed concern that the scope of the exception would be interpreted inconsistently, including with respect to documents posted by public entities in accordance with other laws. Some commenters also urged the Department to add additional language to the exception, such as specifying that documents would not be covered by the exception if they are used by members of the public to “enable or assist” them to apply for, gain access to, or participate in a public entity's services, programs, or activities, or the documents “provide information about or describe” a public entity's services, programs, or activities.
Whether a document is currently used to apply for, gain access to, or participate in a public entity's services, programs, or activities is a fact-specific analysis. For example, one commenter questioned whether a document containing a city's description of a public park and its accessibility provisions would be covered by the exception if the document did not otherwise discuss a particular event or program. The Department anticipates that the exception would likely not cover such a document. One of the city's services, programs, or activities is providing and maintaining a public park and its accessibility features. An individual with a disability who accesses the document before visiting the park to understand the park's accessibility features would be currently using the document to gain access to the park.
One commenter suggested that if a public entity cannot change preexisting conventional electronic documents due to legal limitations or other similar restrictions, then the public entity should not have to make those documents accessible under subpart H of this part, even if they are currently used by members of the public to apply for, gain access to, or participate in a public entity's services, programs, or activities. The Department did not make changes to the exception because subpart H already includes a provision that addresses such circumstances in § 35.202. Namely, public entities are permitted to use conforming alternate versions of web content where it is not possible to make web content directly accessible due to technical or legal limitations. Therefore, a public entity could provide an individual with a disability a conforming alternate version of a preexisting conventional electronic document currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities if the document could not be made accessible for the individual due to legal limitations.
One commenter expressed concern that public entities might convert large volumes of web content to formats covered by the exception ahead of the compliance dates in subpart H of this part. In contrast, a public entity stated that there is limited incentive to rush to post inaccessible documents prior to the compliance dates because documents are frequently updated, and it would be easier for the public entity to create accessible documents in the first place than to try to remediate inaccessible documents in the future. The Department emphasizes that a public entity may not rely on the exception to circumvent its accessibility obligations under subpart H by, for example, converting all of its web content to conventional electronic document formats and posting those documents before the date the entity must comply with subpart H. Even if a public entity did convert various web content to preexisting conventional electronic documents before the date it was required to comply with subpart H, the date the documents were posted is only one part of the analysis under the exception. If any of the converted documents are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities, they would not be covered by the exception and would generally need to conform to WCAG 2.1 Level AA, even if those documents were posted before the date the entity was required to comply with subpart H. And if a public entity revises a conventional electronic document after the date the entity must comply with subpart H, that document would no longer qualify as “preexisting” and would thus need to be made accessible as defined in § 35.200.
The Department received comments both supporting and opposing the exception. In support of the exception, commenters highlighted various benefits. For example, commenters noted that the exception would help public entities preserve resources because remediating preexisting documents is time consuming and expensive. Commenters also noted that the exception would focus public entities' resources on current and future content rather than preexisting documents that may be old, rarely accessed, or of little benefit. Commenters stated that in the absence of this exception public entities might remove preexisting documents from their websites.
In opposition to the exception, commenters highlighted various concerns. For example, commenters argued that the exception is inconsistent with the ADA's goal of equal access for individuals with disabilities because it perpetuates unequal access to information available through public entities' web content and mobile apps, and it is unnecessary because the compliance limitations for fundamental alteration and undue financial and administrative burdens would protect public entities from any unrealistic requirements under subpart H of this part. Commenters also asserted that the exception excludes relevant and important content from becoming accessible, and it inappropriately continues to place the burden on individuals with disabilities to identify themselves to public entities, request access to the content covered by the exception, and wait for the request to be processed. In addition, commenters argued that the exception covers file formats that do not need to be covered by an exception because they can generally be remediated easily; it is not timebound; it does not account for technology that exists, or might develop in the future, that may allow for easy and reliable wide-scale remediation of conventional electronic documents; and it might deter development of technology to reliably remediate conventional electronic documents. Commenters also stated that the exception is confusing because, as described elsewhere in this appendix, it may not be clear when documents are “preexisting” or “used” to apply for, gain access to, or participate in a public entity's services, programs, or activities, and confusion or a lack of predictability would make advocacy efforts more difficult.
After reviewing the comments, the Department has decided to keep the exception in § 35.201. The Department continues to believe that the exception provides an important measure of clarity and certainty for public entities as they initially consider how to address all the various conventional electronic documents provided and made available through their web content and mobile apps. The exception will allow public entities to primarily focus their resources on developing new conventional electronic documents that are accessible as defined under subpart H of this part and remediating preexisting conventional electronic documents that are currently used to apply for, gain access to, or participate in their services, programs, or activities. In contrast, public entities will not have to expend their resources on identifying, cataloguing, and remediating preexisting
The Department understands the concerns raised by commenters about the potential burdens that individuals with disabilities may face because some conventional electronic documents covered by the exception are not accessible. The Department emphasizes that even if certain content does not have to conform to the technical standard, public entities still need to ensure that their services, programs, and activities offered using web content and mobile apps are accessible to individuals with disabilities on a case-by-case basis in accordance with their existing obligations under title II of the ADA. These obligations include making reasonable modifications to avoid discrimination on the basis of disability, ensuring that communications with people with disabilities are as effective as communications with people without disabilities, and providing people with disabilities an equal opportunity to participate in or benefit from the entity's services, programs, or activities.
Some commenters suggested that the Department should require public entities to adopt procedures and timelines for how individuals with disabilities could request access to inaccessible conventional electronic documents covered by the exception. One commenter also suggested that subpart H of this part should require the ongoing provision of accessible materials to an individual with a disability if a public entity is on notice that the individual needs access to preexisting conventional electronic documents covered by the exception in accessible formats. The Department declines to make specific changes to the exception in response to these comments and reiterates that public entities must determine on a case-by-case basis how best to meet the needs of those individuals who cannot access the content contained in documents that are covered by the exception. It is helpful to provide individuals with disabilities with information about how to obtain the modifications or auxiliary aids and services they may need. Public entities can help to facilitate effective communication by providing notice to the public on how an individual who cannot access preexisting conventional electronic documents covered by the exception because of a disability can request other means of effective communication or reasonable modifications in order to access the public entity's services, programs, or activities with respect to the documents. Public entities can also facilitate effective communication by providing an accessibility statement that tells the public how to bring web content or mobile app accessibility problems to the public entities' attention and developing and implementing a procedure for reviewing and addressing any such issues raised. For example, a public entity could facilitate effective communication by providing an email address, accessible link, accessible web page, or other accessible means of contacting the public entity to provide information about issues that individuals with disabilities may encounter accessing web content or mobile apps or to request assistance. Providing this information will help public entities to ensure that they are satisfying their obligations to provide equal access, effective communication, and reasonable modifications.
Commenters also suggested other possible revisions to the exception. Commenters recommended various changes that would cause conventional electronic documents covered by the exception to become accessible over time. For example, commenters suggested that if a public entity makes a copy of a preexisting conventional electronic document covered by the exception conform to WCAG 2.1 Level AA in response to a request from an individual with a disability, the public entity should replace the inaccessible version posted on its web content or mobile app with the updated accessible version that was sent to the individual; the exception should ultimately expire after a certain amount of time; public entities should be required to remediate preexisting documents over time, initially prioritizing documents that are most important and frequently accessed; or public entities should be required to convert certain documents to HTML format according to the same schedule that other HTML content is made accessible.
The Department already expects the impact of the exception will diminish over time for various reasons. For example, public entities may update the documents covered by the exception, in which case they are no longer “preexisting.” In addition, the Department notes that there is nothing in subpart H of this part that would prevent public entities from taking steps, such as those identified by commenters, to make preexisting conventional electronic documents conform to WCAG 2.1 Level AA. In fact, public entities might find it beneficial to do so.
One commenter recommended that the exception should apply to all preexisting conventional electronic documents regardless of how they are used by members of the public. The Department does not believe this approach is advisable because it has the potential to cause a significant accessibility gap for individuals with disabilities if public entities rely on conventional electronic documents that are not regularly updated or changed. This could result in inconsistent access to web content and mobile apps and therefore less predictability for people with disabilities in terms of what to expect when accessing public entities' web content and mobile apps.
One public entity recommended that the exception should also apply to preexisting documents posted on a public entity's web content or mobile apps after the date the public entity is required to comply with subpart H of this part if the documents are of historical value and were only minimally altered before posting. One goal of the exception is to assist public entities in focusing their personnel and financial resources on developing new web content and mobile apps that are accessible as defined under subpart H. Therefore, the exception neither applies to content that is newly added to a public entity's web content or mobile app after the date the public entity is required to comply with subpart H nor to preexisting content that is updated after that date. The Department notes that if a public entity wishes to post archival documents, such as the types of documents described by the commenter, after the date the public entity is required to comply with subpart H, the public entity should assess whether the documents can be archived under § 35.201(a), depending on the facts. In particular, the definition of “archived web content” in § 35.104 includes web content posted to an archive after the date a public entity is required to comply with subpart H only if the web content was created before the date the public entity is required to comply with subpart H, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H.
Several commenters also requested clarification about how the exception applies to preexisting conventional electronic documents that are created by a third party on behalf of a public entity or hosted on a third party's web content or mobile apps on behalf of a public entity. As previously discussed, the Department made general changes to § 35.200 that address public entities' contractual, licensing, or other arrangements with third parties. The Department clarified that the general requirements for web content and mobile app accessibility apply when a public entity provides or makes available web content or mobile apps, directly or through contractual, licensing, or other arrangements. The same is also true for the application of this exception. Therefore, preexisting conventional electronic documents that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements, would be subject to subpart H of this part, and the documents would be covered by this exception unless they are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities.
Public entities' web content or mobile apps can include or link to many different types of content created by someone other than the public entity, some of which is posted by or on behalf of public entities and some of which is not. For example, many public entities' websites contain content created by third parties, like scheduling tools, reservations systems, or payment systems. Web content or content in mobile apps created by third parties may also be posted by members of the public on a public entity's online message board or other sections of the public entity's content that allow public comment. In addition to content created by third parties that is posted on the public
Subpart H of this part requires web content and mobile apps created by third parties to comply with § 35.200 if the web content and mobile apps are provided or made available due to contractual, licensing, or other arrangements with the public entity. In other words, web content and mobile apps that are created or posted on behalf of a public entity fall within the scope of § 35.200. Where a public entity links to third-party content but the third-party content is truly unaffiliated with the public entity and not provided on behalf of the public entity due to contractual, licensing, or other arrangements, the linked content falls outside the scope of § 35.200. Additionally, due to the exception in § 35.201(c), content posted by a third party on an entity's web content or mobile app falls outside the scope of § 35.200, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity.
The Department has heard a variety of views regarding whether public entities should be responsible for ensuring that third-party content on their websites and linked third-party content are accessible as defined by § 35.200. Some maintain that public entities cannot be held accountable for third-party content on their websites, and without such an exception, public entities may have to remove the content altogether. Others have suggested that public entities should not be responsible for third-party content and linked content unless that content is necessary for individuals to access public entities' services, programs, or activities. The Department has also heard the view, however, that public entities should be responsible for third-party content because a public entity's reliance on inaccessible third-party content can prevent people with disabilities from having equal access to the public entity's own services, programs, or activities. Furthermore, boundaries between web content generated by a public entity and by a third party are often difficult to discern.
In anticipation of these concerns, the Department originally proposed two limited exceptions related to third-party content in the NPRM. After review of the public's comments to those exceptions and the comments related to third-party content generally, the Department is proceeding with one of those exceptions in subpart H of this part, as described in the following paragraph. As further explained elsewhere in this appendix, the Department notes that it eliminates redundancy to omit the previously proposed exception for third-party content linked from a public entity's website, but it does not change the scope of content that is required to be made accessible under subpart H.
Section 35.201(c) provides an exception to the web and mobile app accessibility requirements of § 35.200 for content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity. Section 35.201 includes this exception in recognition of the fact that individuals other than a public entity's agents sometimes post content on a public entity's web content and mobile apps. For example, members of the public may sometimes post on a public entity's online message boards, wikis, social media, or other web forums, many of which are unmonitored, interactive spaces designed to promote the sharing of information and ideas. Members of the public may post frequently, at all hours of the day or night, and a public entity may have little or no control over the content posted. In some cases, a public entity's website may include posts from third parties dating back many years, which are likely of limited, if any, relevance today. Because public entities often lack control over this third-party content, it may be challenging (or impossible) for them to make it accessible. Moreover, because this third-party content may be outdated or less frequently accessed than other content, there may be only limited benefit to requiring public entities to make this content accessible. Accordingly, the Department believes an exception for this content is appropriate. However, while this exception applies to web content or content in mobile apps posted by third parties, it does not apply to the tools or platforms the public uses to post third-party content on a public entity's web content or content in mobile apps, such as message boards—these tools and platforms generally must conform to the technical standard in subpart H of this part.
This exception applies to, among other third-party content, documents filed by independent third parties in administrative, judicial, and other legal proceedings that are available on a public entity's web content or mobile apps. This example helps to illustrate why the Department believes this exception is necessary. Many public entities have either implemented or are developing an automated process for electronic filing of documents in administrative, judicial, or legal proceedings in order to improve efficiency in the collection and management of these documents. Courts and other public entities receive high volumes of filings in these sorts of proceedings each year. Documents are often submitted by third parties—such as a private attorney in a legal case or other members of the public—and those documents often include appendices, exhibits, or other similar supplementary materials that may be difficult to make accessible.
However, the Department notes that public entities have existing obligations under title II of the ADA to ensure the accessibility of their services, programs, or activities.
Sometimes a public entity itself chooses to post content created by a third party on its website. The exception in § 35.201(c) does not apply to content posted by the public entity itself, or posted on behalf of the public entity due to contractual, licensing, or other arrangements, even if the content was originally created by a third party. For example, many public entities post third-party content on their websites, such as calendars, scheduling tools, maps, reservations systems, and payment systems that were developed by an outside technology company. Sometimes a third party might even build a public entity's website template on the public entity's behalf. To the extent a public entity chooses to rely on third-party content on its website in these ways, it must select third-party content that meets the requirements of § 35.200. This is because a public entity may not delegate away its obligations under the ADA.
The Department has added language to the third-party posted exception in § 35.201(c) to make clear that the exception does not apply where a third party is posting on behalf of the public entity. The language in § 35.201(c) provides that the exception does not apply if the third party is posting due to contractual, licensing, or other arrangements with the public entity. The Department received many comments expressing concern with how this exception as originally proposed could have applied in the context of third-party vendors and other entities acting on behalf of the public entity. The Department added language to make clear that the exception only applies where the third-party posted content is independent from the actions of the public entity—that is, where there is no arrangement under which the third party is acting on behalf of the public entity. If such an arrangement exists, the third-party content is not covered by the exception and must be made accessible in accordance with subpart H of this part. This point is also made clear in language the Department added to the general requirements of § 35.200, which provides that public entities shall ensure web
On another point, some commenters expressed confusion about when authoring tools and other embedded content that enables third-party postings would need to be made accessible. The Department wishes to clarify that while the exception for third-party posted content applies to that content which is posted by an independent third party, the exception does not apply to the authoring tools and embedded content provided by the public entity, directly or through contractual, licensing, or other arrangements. Because of this, authoring tools, embedded content, and other similar functions provided by the public entity that facilitate third-party postings are not covered by this exception and must be made accessible in accordance with subpart H of this part. Further, public entities should consider the ways in which they can facilitate accessible output of third-party content through authoring tools and guidance. Some commenters suggested that the Department should add regulatory text requiring public entities to use authoring tools that generate compliant third-party posted content. The Department declines to adopt this approach at this time because the technical standard adopted by subpart H is WCAG 2.1 Level AA, and the Department believes the commenters' proposed approach would go beyond that standard. The Department believes going beyond the requirements of WCAG 2.1 Level AA in this way would undermine the purpose of relying on an existing technical standard that web developers are already familiar with, and for which guidance is readily available, which could prove confusing for public entities.
The Department received many comments either supporting or opposing the exception for content posted by a third party. Public entities and trade groups representing public accommodations generally supported the exception, and disability advocates generally opposed the exception. Commenters supporting the exception argued that the content covered by this exception would not be possible for public entities to remediate since they lack control over unaffiliated third-party content. Commenters in support of the exception also shared that requiring public entities to remediate this content would stifle engagement between public entities and members of the public, because requiring review and updating of third-party postings would take time. Further, public entities shared that requiring unaffiliated third-party web content to be made accessible would in many cases either be impossible or require the public entity to make changes to the third party's content in a way that could be problematic.
Commenters opposing the exception argued that unaffiliated third-party content should be accessible so that individuals with disabilities can engage with their State or local government entities, and commenters shared examples of legal proceedings, development plans posted by third parties for public feedback, and discussions of community grievances or planning. Some of the commenters writing in opposition to the exception expressed concern that content provided by vendors and posted by third parties on behalf of the public entity would also be covered by this exception. The Department emphasizes in response to these commenters that this exception does not apply where a third party such as a vendor is acting on behalf of a public entity, through contractual, licensing, or other arrangements. The Department added language to ensure this point is clear in regulatory text, as explained previously.
After reviewing the comments, the Department emphasizes at the outset the narrowness of this exception—any third-party content that is posted due to contractual, licensing, or other arrangements with the public entity would not be covered by this exception. The Department sometimes refers to the content covered by this exception as “independent” or “unaffiliated” content to emphasize that this exception only applies to content that the public entity has not contracted, licensed, or otherwise arranged with the third party to post. This exception would generally apply, for example, where the public entity enables comments from members of the public on its social media page and third-party individuals independently comment on that post, or where a public entity allows for legal filings through an online portal and a third-party attorney independently submits a legal filing on behalf of their private client (which is then available on the public entity's web content or mobile apps).
The Department has determined that maintaining this exception is appropriate because of the unique considerations relevant to this type of content. The Department takes seriously public entities' concerns that they will often be unable to ensure independent third-party content is accessible because it is outside of their control, and that if they were to attempt to control this content it could stifle communication between the public and State or local government entities. The Department further believes there are unique considerations that could prove problematic with public entities editing or requiring third parties to edit their postings. For example, if public entities were required to add alt text to images or maps in third parties' legal or other filings, it could require the public entity to make decisions about how to describe images or maps in a way that could be problematic from the perspective of the third-party filer. Alternatively, if the public entity were to place this burden on the third-party filer, it could lead to different problematic outcomes. For example, if a public entity rejects a posting from an unaffiliated third party (someone who does not have obligations under subpart H of this part) and requires the third party to update it, the result could be a delay of an emergency or time-sensitive filing or even impeding access to the forum if the third party is unable or does not have the resources to remediate the filing.
The Department understands the concerns raised by the commenters who oppose this exception, and the Department appreciates that the inclusion of this exception means web content posted by third parties may not consistently be accessible by default. The Department emphasizes that even if certain content does not have to conform to the technical standard, public entities still need to ensure that their services, programs, and activities offered using web content and mobile apps are accessible to individuals with disabilities on a case-by-case basis in accordance with their existing obligations under title II of the ADA. These obligations include making reasonable modifications to avoid discrimination on the basis of disability, ensuring that communications with people with disabilities are as effective as communications with people without disabilities, and providing people with disabilities an equal opportunity to participate in or benefit from the entity's services, programs, or activities.
The Department believes the balance this exception strikes thus ensures accessibility to the extent feasible without requiring public entities to take actions that may be impossible or lead to problematic outcomes as described previously. These problematic outcomes include public entities needing to characterize independent third-party content by adding image descriptions, for example, and stifling engagement between public entities and the public due to public entities' need to review and potentially update independent third-party posts, which could lead to delay in posting. Independent third-party content should still be made accessible upon request when required under the existing obligations within title II of the ADA. However, public entities are not required to ensure the accessibility at the outset of independent third-party content. The Department believes, consistent with commenters' suggestions, that reliance solely on the fundamental alteration or undue burdens provisions discussed in the “Duties” section of the section-by-section analysis of § 35.204 would not avoid these problematic outcomes. This is because, for example, even where the public entity may have the resources to make the third-party content accessible (such as by making changes to the postings or blocking posting until the third party makes changes), and even where the public entity does not believe modifying the postings would result in a fundamental alteration in the nature of the service, program, or activity at issue, the problematic outcomes described previously would likely persist. The Department thus believes that
Some commenters suggested alternative formulations that would narrow or expand the exception. For example, commenters suggested that the Department limit the exception to advertising and marketing or activities not used to access government services, programs, or activities; mandate that third-party postings providing official comment on government actions still be required to be made accessible; provide alternative means of access as permissible ways of achieving compliance; consider more content as third-party created content; provide for no liability for third-party sourced content; require that emergency information posted by third parties still be accessible; and require that public entities post guidance on making third-party postings accessible. The Department has considered these alternative formulations, and with each proposed alternative the Department found that the proposal would not avoid the problematic outcomes described previously, would result in practical difficulties to implement and define, or would be too expansive of an exception in that too much content would be inaccessible to individuals with disabilities.
Commenters also suggested that the Department include a definition of “third party.” The Department is declining to add this definition because the critical factor in determining whether this exception applies is whether the third party is posting due to contractual, licensing, or other arrangements with the public entity, and the Department believes the changes to the regulatory text provide the clarity commenters sought. For example, the Department has included language making clear that public entities are responsible for the content of third parties acting on behalf of State or local government entities through the addition of the “contractual, licensing, or other arrangements” clauses in the general requirements and in this exception. One commenter also suggested that subpart H of this part should cover third-party creators of digital apps and content regardless of whether the apps and content are used by public entities. Independent third-party providers unaffiliated with public entities are not covered by the scope of subpart H, as they are not title II entities.
Finally, the Department made a change to the exception for third-party posted content from the NPRM to make the exception more technology neutral. The NPRM provided that the exception applies only to “web content” posted by a third party.
In the NPRM, the Department proposed an exception for third-party content linked from a public entity's website. After reviewing public comments on this proposed exception, the Department has decided not to include it in subpart H of this part. The Department agrees with commenters who shared that the exception is unnecessary and would only create confusion. Further, the Department believes that the way the exception was framed in the NPRM is consistent with the way subpart H would operate in the absence of this exception (with some clarifications to the regulatory text), so the fact that this exception is not included in subpart H will not change what content is covered by subpart H. Under subpart H, consistent with the approach in the NPRM, public entities are not responsible for making linked third-party content accessible where they do not provide or make available that content, directly or through contractual, licensing, or other arrangements.
The exception for third-party-linked content that was proposed in the NPRM provided that a public entity would not be responsible for the accessibility of third-party web content linked from the public entity's website unless the public entity uses the third-party web content to allow members of the public to participate in or benefit from the public entity's services, programs, or activities. Many public entities' websites include links to other websites that contain information or resources in the community offered by third parties that are not affiliated with the public entity. Clicking on one of these links will take an individual away from the public entity's website to the website of a third party. Often, the public entity has no control over or responsibility for a third party's web content or the operation of the third party's website. Accordingly, the proposed regulatory text in the NPRM provided that the public entity would have no obligation to make the content on a third party's website accessible.
However, in the NPRM, the Department provided that if the public entity uses the linked third-party web content to allow members of the public to participate in or benefit from the public entity's services, programs, or activities, then the public entity must ensure it only links to third-party web content that complies with the web accessibility requirements of § 35.200. The Department clarified that this approach is consistent with public entities' obligation to make all of their services, programs, and activities accessible to the public, including those that public entities provide through third parties.
Most commenters opining on this subject opposed the exception for third-party content linked from a public entity's website, including disability advocates and individuals with disabilities. Commenters raised many concerns with the exception as drafted. Principally, commenters shared that the exception could lead to confusion about when third-party content is covered by subpart H, and that it could result in critical third-party content being interpreted to be excluded from the requirements of § 35.200. Although the Department proposed a limitation to the exception (
Further, commenters also expressed concern with relieving public entities of the responsibility to ensure that the links they provide lead to accessible content.
Some commenters supported the exception, generally including individuals, public entities, and trade groups representing public accommodations. These commenters contended that the content at issue in this exception should properly be considered “fluff,” and that it would be unrealistic to expect tourist or small business promotion to exist through only accessible websites. The Department also received some examples from commenters who supported the exception of web content the commenters inaccurately believed would be covered by the exception, such as highway toll management account websites. The Department would have likely considered that type of content to be required to comply with § 35.200, even with the exception, due to the limitation to the third-party-linked exception as proposed in the NPRM. Many of the comments the Department received on this proposed exception demonstrated confusion with how the third-party-linked exception and its limitation as proposed in the NPRM would apply in practice, which would lead to misconceptions in terms of when public entities must ensure conformance to WCAG 2.1 and what kinds of content individuals with disabilities can expect to be accessible.
After reviewing public comments, the Department believes that inclusion of this exception is unnecessary, would result in confusion, and that removing the exception more consistently aligns with the language of title II of the ADA and the Department's intent in proposing the exception in the NPRM.
Consistent with what many commenters opined, the Department believes that the proper analysis is whether an entity has directly, or through contractual, licensing, or other arrangements, provided or made available the third-party content. This means that, for example, when a public entity posts links to third-party web content on the public entity's website, the links located on the public entity's website and the organization of the public entity's website must comply with § 35.200. Further, when a public entity links to third-party web content that is provided by the public entity, directly or through contractual, licensing, or other arrangements, the public entity is also responsible for ensuring the accessibility of that linked content. However, when public entities link to third-party websites, unless the public entity has a contractual, licensing, or other arrangement with the website to provide or make available content, those third-party websites are not covered by title II of the ADA, because they are not services, programs, or activities provided or made available by public entities, and thus public entities are not responsible for the accessibility of that content.
Rather than conduct a separate analysis under the proposed exception in the NPRM, the Department believes the simpler and more legally consistent approach is for public entities to assess whether the linked third-party content reflects content that is covered under subpart H of this part to determine their responsibility to ensure the accessibility of that content. If that content is covered, it must be made accessible in accordance with the requirements of § 35.200. For example, if a public entity allows the public to pay for highway tolls using a third-party website, that website would be a service that the public entity provides through arrangements with a third party, and the toll payment website would need to be made accessible consistent with subpart H. However, if the content is not provided or made available by a public entity, directly or through contractual, licensing, or other arrangements, even though the public entity linked to that content, the public entity would not be responsible for making that content accessible. The public entity would still need to ensure the links themselves are accessible, but not the unaffiliated linked third-party content. For example, if a public entity has a tourist information website that provides a link to a private hotel's website, then the public entity would need to ensure the link to that hotel is accessible, because the link is part of the web content of the public entity. The public entity would, for example, need to ensure that the link does not violate the minimum color contrast ratio by being too light of a color blue against a light background, which would make it inaccessible to certain individuals with disabilities.
The Department believes that this approach is consistent with what the Department sought to achieve by including the exception in the NPRM, so this modification to subpart H of this part from the proposal in the NPRM does not change the web content that is ultimately covered by subpart H. Rather, the Department believes that removing the exception will alleviate the confusion expressed by many commenters and allow public entities to make a more straightforward assessment of the coverage of the web content they provide to the public under subpart H. For example, a public entity that links to online payment processing websites offered by third parties to accept the payment of fees, parking tickets, or taxes must ensure that the third-party web content it links to in order for members of the public to pay for the public entity's services, programs, or activities complies with the web accessibility requirements of § 35.200. Similarly, if a public entity links to a third-party website that processes applications for benefits or requests to sign up for classes or programs the public entity offers, the public entity is using the third party's linked web content as part of the public entity's services, programs, or activities, and the public entity must thus ensure that it links to only third-party web content that complies with the requirements of § 35.200.
The Department considered addressing commenters' confusion by providing more guidance on the proposed exception, rather than removing the exception. However, the Department believes that the concept of an exception for this type of content, when that content would not be covered by title II in the first place, would make the exception especially prone to confusion, such that including it in subpart H of this part even with further explanation would be insufficient to avoid confusion. The Department believes that because the content at issue would generally not be covered by title II in the first place, including this exception could inadvertently cause public entities to assume that the exception is broader than it is, which could result in the inaccessibility of content that is critical to accessing public entities' services, programs, or activities.
The Department also reviewed proposals by commenters to both narrow and expand the language of the exception proposed in the NPRM. Commenters suggested narrowing the exception by revising the limitation to cover information that “enables or assists” members of the public to participate in or
Many public entities use mobile apps that are developed, owned, and operated by third parties, such as private companies, to allow the public to access the public entity's services, programs, or activities. This part of the section-by-section analysis refers to mobile apps that are developed, owned, and operated by third parties as “external mobile apps.”
The Department requested feedback on the external mobile apps that public entities use to offer their services, programs, or activities and received comments on its approach to external mobile apps. Commenters pointed out that external mobile apps are used for a variety of purposes by public entities, including for public information, updates on road conditions, transportation purposes, information on recreation, class information, map-based tools for finding specific information like air quality, and emergency planning, among other things.
Commenters overwhelmingly supported the Department's position to not include a wholesale exception for every external mobile app, given how often these apps are used in public entities' services, programs, and activities. As commenters noted, the public's reliance on mobile devices makes access to external apps critical, and commenters shared their belief that the usage of mobile devices, like smartphones, will increase in the coming years. For example, some commenters indicated that many individuals with disabilities, especially those with vision disabilities, primarily rely on smartphones rather than computers, and if mobile apps are not accessible, then people who are blind or have low vision would need to rely on others to use apps that include sensitive data like bank account information. Accordingly, commenters argued there should be little, if any, difference between the information and accessibility provided using a mobile app and a conventional web browser, and if the Department were to provide an exception for external mobile apps, commenters said that there would be a large loophole for accessibility because so many members of the public rely on external mobile apps to access a public entity's services, programs, or activities.
Some commenters sought clarity on the scope of external mobile apps that might be covered by subpart H of this part, such as whether apps used to vote in an election held by a public entity would be covered. Under subpart H, external mobile apps that public entities provide or make available, including apps used in a public entity's election, would be covered by subpart H. As discussed in the section-by-section analysis of § 35.200, subpart H applies to a mobile app even if the public entity does not create or own the mobile app, if there is a contractual, licensing, or other arrangement through which the public entity provides or makes the mobile app available to the public.
Some commenters raised concerns with applying accessibility standards to external mobile apps that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements. Specifically, commenters indicated there may be challenges related to costs, burdens, and cybersecurity with making these apps accessible and, because external mobile apps are created by third-party vendors, public entities may have challenges in ensuring that these apps are accessible. Accordingly, some commenters indicated the Department should set forth an exception for external mobile apps. Another commenter suggested that the Department should delay the compliance date of subpart H of this part to ensure there is sufficient time for external mobile apps subject to § 35.200 to come into compliance with the requirements in subpart H.
While the Department understands these concerns, the Department believes that the public relies on many public entities' external mobile apps to access public entities' services, programs, or activities, and setting forth an exception for these apps would keep public entities' services, programs, or activities inaccessible in practice for many individuals with disabilities. The Department believes that individuals with disabilities should not be excluded from these government services because the external mobile apps on which public entities rely are inaccessible. In addition, this approach of applying ADA requirements to services, programs, or activities that a public entity provides through a contractual, licensing, or other arrangement with a third party is consistent with the existing framework in title II of the ADA.
With respect to concerns about an appropriate compliance date, the section-by-section analysis of § 35.200 addresses this issue. The Department believes the compliance dates in subpart H of this part will provide sufficient time for public entities to ensure they are in compliance with the requirements of subpart H. Further lengthening the compliance dates would only further extend the time that individuals with disabilities remain excluded from the same level of access to public entities' services, programs, and activities through mobile apps.
In the NPRM, the Department proposed exceptions to the requirements of § 35.200 for certain password-protected class or course content of public elementary, secondary, and postsecondary institutions.
The NPRM included two proposed exceptions for password-protected class or course content of public educational institutions. The first proposed exception, which was included in the NPRM as proposed § 35.201(e),
This proposed exception was cabined by two proposed limitations, which are scenarios under which the proposed exception would not apply. The first such limitation provided that the proposed exception would not apply if a public entity is on notice that an admitted student with a disability is pre-registered in a specific course offered by a public postsecondary institution and that the student, because of a disability, would be unable to access the content available on the public entity's password-protected or otherwise secured website for the specific course.
The second limitation to the proposed exception for public postsecondary institutions' course content provided that the exception would not apply once a public entity is on notice that an admitted student with a disability is enrolled in a specific course offered by a public postsecondary institution after the start of the academic term and that the student, because of a disability, would be unable to access the content available on the public entity's password-protected or otherwise secured website for the specific course.
The second proposed course content exception, which was included in the NPRM as § 35.201(f), proposed the same exception as proposed § 35.201(e), but for public elementary and secondary schools. The proposed exception also contained the same limitations and timing requirements as the proposed exception for public postsecondary schools, but the limitations to the exception would have applied not only when there was an admitted student with a disability enrolled in the course whose disability made them unable to access the course content, but also when there was a parent with a disability whose child was enrolled in the course and whose disability made them unable to access the course content.
The Department proposed these exceptions in the NPRM based on its initial assessment that it might be too burdensome to require public educational institutions to make accessible all of the course content that is available on password-protected websites, particularly given that content can be voluminous and that some courses in particular terms may not include any students with disabilities or students whose parents have disabilities. However, the Department recognized in the NPRM that it is critical for students with disabilities to have access to course content for the courses in which they are enrolled; the same is true for parents with disabilities in the context of public elementary and secondary schools. The Department therefore proposed procedures that a public educational institution would have to follow to make course content accessible on an individualized basis once the institution was on notice that there was a student or parent who needed accessible course content because of a disability. Because of the need to ensure prompt access to course content, the Department proposed to require public educational institutions to act quickly upon being on notice of the need for accessible content; public entities would have been required to provide accessible course content either by the start of the term if the institution was on notice before the date the term began, or within five business days if the institution was on notice after the start of the term.
The Department stated in the NPRM that it believed the proposed exceptions for password-protected course content struck the proper balance between meeting the needs of students and parents with disabilities while crafting a workable standard for public entities, but it welcomed public feedback on whether alternative approaches might strike a more appropriate balance.
The overwhelming majority of comments on this topic expressed opposition to the course content exceptions as proposed in the NPRM. Many commenters suggested that the Department should take an alternative approach on this issue; namely, the exceptions should not be included in subpart H of this part. Having reviewed the public comments and given careful additional consideration to this issue, the Department has decided not to include these exceptions in subpart H. The public comments supported the conclusion that the exceptions would exacerbate existing educational inequities for students and parents with disabilities without serving their intended purpose of meaningfully alleviating burdens for public educational institutions.
Many commenters, including some commenters affiliated with public educational institutions, asserted that the course content exceptions and limitations as proposed in the NPRM would not be workable for schools, and would almost inevitably result in delays in access to course content for students and parents with disabilities. Commenters provided varying reasons for these conclusions.
Some commenters argued that because making course content accessible often takes time and intentionality to implement, it is more efficient and effective for public educational institutions to create policies and procedures to make course content accessible proactively, without waiting for a student with a disability (or student with a parent with a disability) to enroll and then making content accessible reactively.
Commenters noted that in many cases, public educational institutions do not generate course content themselves, but instead procure such content through third-party vendors. As a result, some commenters stated, public educational institutions may be dependent on vendors to make their course content accessible, many of which are unable or unwilling to respond to ad hoc requests for accessibility within the expedited time frames that would be required to comply with the limitations to the proposed exceptions. Some commenters argued that it is more efficient and effective to incentivize third-party vendors to make course content produced for public educational institutions accessible on the front end. Otherwise, some commenters contended, it may fall to
Some commenters also observed that even if public educational institutions might be able to make a subset of content accessible within the compressed time frames provided under the proposed exceptions, it could be close to impossible for institutions to do so for all course content for all courses, given the wide variation in the size and type of course content. Some commenters noted that content for science, technology, engineering, and mathematics courses may be especially difficult to remediate under the expedited time frames provided under the proposed exceptions. Some commenters indicated that it is more effective for public educational institutions to conduct preparations in advance to make all materials accessible from the start. One commenter asserted that remediating materials takes, on average, twice as long as developing materials that are accessible from the start. Some commenters also pointed out that it might be confusing for public educational institutions to have two separate standards for the accessibility of course content depending on whether there is a student (or student with a parent) with a disability in a particular course.
Many commenters took particular issue with the five-day remediation time frame for course content when a school becomes on notice after the start of the term that there is a student or parent with a disability who needs accessible course content. Some commenters argued that this time frame was too short for public entities to ensure the accessibility of all course content for a particular course, while simultaneously being too long to avoid students with disabilities falling behind. Some commenters noted that the five-day time frame would be particularly problematic for short courses that occur during truncated academic terms, which may last only a small number of days or weeks.
Some commenters also argued that the course content exceptions would create a series of perverse incentives for public educational institutions and the third-party vendors with whom they work, such as incentivizing institutions to neglect accessibility until the last minute and attempt to rely on the fundamental alteration or undue burdens limitations more frequently when they are unable to comply as quickly as required under subpart H of this part. Some commenters also contended that the course content exceptions would undermine public educational institutions' settled expectations about what level of accessibility is required for course content and would cause the institutions that already think about accessibility proactively to regress to a more reactive model. Some commenters asserted that because the course content exceptions would cover only password-protected or otherwise secured content, the exceptions would also incentivize public educational institutions to place course content behind a password-protected wall, thereby making less content available to the public as a whole.
Some commenters asserted that if the exceptions were not included in subpart H of this part, the existing fundamental alteration and undue burdens limitations would provide sufficient protection for public educational institutions. One commenter also suggested that making all course content accessible would offer benefits to public educational institutions, as accessible content often requires less maintenance than inaccessible content and can more readily be transferred between different platforms or accessed using different tools. This commenter contended that by relying on accessible content, public educational institutions would be able to offer better services to all students, because accessible content is more user friendly and provides value for all users.
Some commenters pointed out that there are other factors that will ease the burden on public educational institutions of complying with subpart H of this part without the course content exceptions proposed in the NPRM. For example, one commenter reported that elementary and secondary curriculum materials are generally procured at the district level. Thus, course content is generally the same for all schools in a given district. This commenter argued that school districts could therefore address the accessibility of most course materials for all schools in their district at once by making digital accessibility an evaluation criterion in their procurement process.
As noted elsewhere in this appendix, many commenters asserted that the course content exceptions proposed in the NPRM could result in an untenable situation in which public educational institutions would likely be unable to fully respond to individualized requests for accessible materials, potentially leading to widespread noncompliance with the technical standard and delays in access to course content for students and parents with disabilities. Many commenters emphasized the negative impact that this situation would have on individuals with disabilities.
Some commenters highlighted the pervasive discrimination that has affected generations of students with disabilities and prevented them from obtaining equal access to education, despite existing statutory and regulatory obligations. As one recent example, some commenters cited studies conducted during the COVID-19 pandemic that demonstrated inequities in access to education for students with disabilities, particularly in the use of web-based educational materials.
Some commenters contended that the proposed exceptions would perpetuate the status quo by inappropriately putting the onus on students (or parents) with disabilities to request accessible materials on an individualized basis. Some commenters asserted that this can be problematic because some individuals may not recognize that they have an accessibility need that their school could accommodate and because requesting accessible materials is sometimes burdensome and results in unfair stigma or invasions of privacy. Some commenters noted that this may result in students or parents with disabilities not requesting accessible materials. Some commenters also argued that because these proposed exceptions would put public educational institutions in a reactionary posture and place burdens on already-overburdened instructors, some instructors and institutions might view requesting students as an inconvenience, in spite of their obligations not to discriminate against those students. One commenter noted that constantly having to advocate for accessibility for years on end can be exhausting for students with disabilities and damaging to their self-esteem, sense of belonging, and ability to engage in academic exploration.
Some commenters also noted that the structure of the proposed exceptions would be in significant tension with the typical structure of a public educational institution's academic term. For example, some
Some commenters also stated many other ways in which the delays in access to course content likely resulting from these exceptions could disadvantage students with disabilities. Some commenters noted that even if public educational institutions were able to turn around accessible materials within the compressed time frames provided under the proposed exceptions—an unlikely result, for the reasons noted elsewhere in this appendix—students with disabilities still might be unable to access course materials as quickly as would be needed to fully participate in their courses. For example, some commenters stated that because students are often expected to complete reading assignments before the first day of class, it is problematic that the proposed exceptions did not require public educational institutions to make course content accessible before the first day of class for students who preregister. Some commenters also observed that because some students with disabilities do not file accessibility requests until after the start of the academic term, it would be impossible to avoid delays in access to course materials under the exceptions. Some commenters also noted that students are often expected to collaborate on assignments, and even a brief delay in access to course material could make it challenging or impossible for students with disabilities to participate in that collaborative process.
Some commenters argued that in the likely outcome that schools are unable to provide accessible course content as quickly as the proposed limitations to the exceptions would require, the resulting delays could cause students with disabilities to fall behind in course readings and assignments, sometimes forcing them to withdraw from or fail the course. Some commenters noted that even if students were able to rely on others to assist them in reviewing inaccessible course materials, doing so is often slower and less effective, and can have a negative emotional effect on students, undermining their senses of independence and self-sufficiency.
Some commenters took particular issue with the proposed exception for postsecondary course content. For example, some commenters asserted that it is often more onerous and complicated for students with disabilities to obtain accessible materials upon request in the postsecondary context, given that public postsecondary schools are not subject to the same obligations as public elementary and secondary institutions to identify students with disabilities under other laws addressing disability rights in the educational context. Accordingly, those commenters argued, the proposed exceptions might be especially harmful for postsecondary students with disabilities.
Other commenters argued that the proposed exception for elementary and secondary course content was especially problematic because it would affect virtually every child with a disability in the country. Some commenters contended that this exception would undermine the requirements of other laws addressing disability rights in the educational context. Some commenters also noted that in the elementary and secondary school context, password-protected course sites often enable parents to communicate with their children's teachers, understand what their children are learning, keep track of any potential issues related to their child's performance, review time-sensitive materials like permission slips, and obtain information about important health and safety issues affecting their children. Some commenters opined that the proposed course content exceptions could make it hard or impossible for parents with disabilities to be involved in their children's education in these ways.
Some commenters contended that the proposed course content exceptions would be problematic in the wake of the COVID-19 pandemic, which has led to a rise in purely online courses. One commenter pointed out that students with disabilities may be more likely to enroll in purely online courses for a variety of reasons, including that digital content tends to be more flexible and operable with assistive devices, and it is therefore especially important to ensure that online courses are fully accessible. At least one commenter also stated that the proposed course content exceptions would have treated students—some of whom pay tuition—less favorably than the general public with respect to accessible materials.
Although the Department anticipated that the limitations to the proposed course content exceptions would naturally result in course materials becoming accessible over time, some commenters took issue with that prediction. Some commenters argued that because there is significant turnover in instructors and course content, and because the proposed limitations to the exceptions did not require content to remain accessible once a student with a disability was no longer in a particular course, the limitations to the exceptions as drafted in the NPRM would not be likely to ensure a fully accessible future in this area.
Although many commenters expressed opposition to the course content exceptions, some commenters, including some commenters affiliated with public educational institutions, expressed support for some form of exception for course content. Some commenters argued that it would be very challenging or infeasible for public educational institutions to comply with subpart H of this part in the absence of an exception, particularly when much of the content is controlled by third-party vendors. Some commenters also noted that public educational institutions may be short-staffed and have limited resources to devote towards accessibility. Some commenters stated that frequent turnover in faculty may make it challenging to ensure that faculty members are trained on accessibility issues. One commenter pointed out that requiring schools to make all course content accessible may present challenges for professors, some of whom are accustomed to being able to select course content without regard to its accessibility. Notably, however, even among those commenters who supported the concept of an exception, many did not support the exceptions as drafted in the NPRM, in part because they did not believe the proposed remediation time frames were realistic.
Having reviewed the public comments, the Department believes it is appropriate to, as many commenters suggested, not include the previously proposed course content exceptions in subpart H of this part. For many of the reasons noted by commenters, the Department has concluded that the proposed exceptions would not meaningfully ease the burden on public educational institutions and would significantly exacerbate educational inequities for students with disabilities. The Department has concluded that the proposed exceptions would have led to an unsustainable and infeasible framework for public entities to make course content accessible, which would not have resulted in reliable access to course content for students with disabilities. As many commenters noted, it would have been extremely burdensome and sometimes even impossible for public educational institutions to comply consistently with the rapid remediation time frames set forth in the limitations to the proposed exceptions in the NPRM, which would likely have led to widespread delays in access to course content for students with disabilities. While extending the remediation time frames might have made it more feasible for public educational institutions to comply under some circumstances, this extension would have commensurately delayed access for students with disabilities, which would have been harmful for the many reasons noted by commenters. The Department believes that it is more efficient and effective for public educational institutions to use the two- or three-year compliance time frame to prepare to make course content accessible proactively, instead of having to scramble to remediate content reactively.
Accordingly, under subpart H of this part, password-protected course content will be treated like any other content and will generally need to conform to WCAG 2.1 Level AA. To the extent that it is burdensome for public educational institutions to make all of their content, including course content, accessible, the Department believes subpart H contains a series of mechanisms that are designed to make it feasible for these institutions to comply, including the delayed compliance dates discussed in § 35.200, the
There were some commenters that supported retaining the proposed course content exceptions with revisions. Commenters suggested a wide range of specific revisions, examples of which are discussed in this section. The Department appreciates the variety of thoughtful approaches that commenters proposed in trying to address the concerns that would arise under the previously proposed course content exceptions. However, for the reasons noted in this section, the Department does not believe that the commenters' proposed alternatives would avoid the issues associated with the exceptions proposed in the NPRM. In addition, although many commenters suggested requiring public entities to follow specific procedures to comply with subpart H of this part, the sheer variety of proposals the Department received from commenters indicates the harm from being overly prescriptive in how public educational institutions comply with subpart H. Subpart H provides educational institutions with the flexibility to determine how best to bring their content into compliance within the two or three years they have to begin complying with subpart H.
Many commenters suggested that the Department should require all new course content to be made accessible more quickly, while providing a longer time period for public entities to remediate existing course content. There were a wide range of proposals from commenters about how this could be implemented. Some commenters suggested that the Department could set up a prioritization structure for existing content, requiring public educational institutions to prioritize the accessibility of, for example, entry-level course content; content for required courses; content for high-enrollment courses; content for courses with high rates of droppage, withdrawal, and failing grades; content for the first few weeks of all courses; or, in the postsecondary context, content in academic departments in which students with disabilities have decided to major.
The Department does not believe this approach would be feasible. Treating new course content differently than existing course content could result in particular courses being partially accessible and partially inaccessible, which could be confusing for both educational institutions and students, and make it challenging for students with disabilities to have full and timely access to their courses. Moreover, even under this hybrid approach, the Department would presumably need to retain remediation time frames for entities to meet upon receiving a request to make existing course content accessible. For the reasons discussed in this section, it would be virtually impossible to set forth a remediation time frame that would provide public educational institutions sufficient time to make content accessible without putting students with disabilities too far behind their peers. In addition, given the wide variation in types of courses and public educational institution structures, it would be difficult to set a prioritization structure for existing content that would be workable across all such institutions.
Some commenters suggested that the Department should set an expiration date for the course content exceptions. The Department does not believe this would be a desirable solution because the problems associated with the proposed exceptions—namely the harm to individuals with disabilities stemming from delayed access to course content and the likely infeasibility of complying with the expedited time frames set forth in the limitations to the exceptions—would likely persist during the lifetime of the exceptions.
Some commenters suggested that the Department could retain the exceptions and accompanying limitations but revise their scope. For example, commenters suggested that the Department could revise the limitations to the exceptions to require public educational institutions to comply only with the WCAG 2.1 success criteria relevant to the particular student requesting accessible materials. Although this might make it easier for public educational institutions to comply in the short term, this approach would still leave public entities in the reactionary posture that so many other commenters criticized in this context and would dramatically reduce the speed at which course content would become accessible to all students. As another example, some commenters recommended that instead of creating exceptions for all password-protected course content, the Department could create exceptions from complying with particular WCAG 2.1 success criteria that may be especially onerous. The Department does not believe this piecemeal approach is advisable, because it would result in course content being only partially accessible, which would reduce predictability for individuals with disabilities. This approach could also make it confusing for public entities to determine the applicable technical standard. Some commenters suggested that the Department should require public entities to prioritize certain types of content that are simpler to remediate. Others suggested that the Department could require certain introductory course documents, like syllabi, to be accessible across the board. One commenter suggested that the Department require public educational institutions to make 20 percent of their course materials accessible each semester. The Department believes that these types of approaches would present similar issues as those discussed in this paragraph and would result in courses being only partially accessible, which would reduce predictability for individuals with disabilities and clarity for public entities. These approaches would also limit the flexibility that public entities have to bring their content into compliance in the order that works best for them during the two or three years they have to begin complying with subpart H of this part.
Some commenters suggested that the Department should revise the remediation timelines in the limitations to the course content exceptions. For example, one commenter suggested that the five-day remediation time frame should be reduced to three days. Another commenter suggested the five-day remediation time frame could be expanded to 10 to 15 days. Some commenters suggested that the time frame should be fact-dependent and should vary depending on factors such as how often the class meets and the type of content. Others recommended that the Department not adopt a specific required remediation time frame, but instead provide that a 10-business-day remediation time frame would be presumptively permissible.
The conflicting comments on this issue illustrate the challenges associated with setting remediation time frames in this context. If the Department were to shorten the remediation time frames, it would make it even harder for public educational institutions to comply, and commenters have already indicated that the previously proposed remediation time frames would not be workable for those institutions. If the Department were to lengthen the remediation time frames, it would further exacerbate the inequities for students with disabilities that were articulated by commenters. The Department believes the better approach is to not include the course content exceptions in subpart H of this part to avoid the need for public educational institutions to make content accessible on an expedited time frame on the back end, and to instead require public entities to treat course content like any other content covered by subpart H.
Some commenters suggested that the Department should take measures to ensure that once course content is accessible, it stays accessible, including by requiring institutions to regularly conduct course accessibility checks. Without the course content exceptions proposed in the NPRM, the Department believes these commenters' concerns are addressed because course content will be treated like all other content under § 35.200, which requires public entities to ensure on an ongoing basis that the web content and mobile apps they provide or make available are readily accessible to and usable by individuals with disabilities.
Some commenters suggested that the Department should give public educational institutions additional time to comply with subpart H of this part beyond the compliance time frames specified in § 35.200(b). The Department does not believe this would be appropriate. Although the requirement for public educational institutions to provide accessible course content and comply with title II is not new, this requirement has not resulted in widespread equal access for individuals with disabilities to public entities' web content and mobile apps. Giving public educational institutions additional time beyond the two- to three-year compliance time frames set forth in § 35.200(b) would potentially prolong the exclusion of individuals with disabilities from certain educational programs, which would be especially problematic given that some of those programs last only a few years
Some commenters recommended that the Department give public educational institutions more flexibility with respect to their compliance with subpart H of this part. For example, some commenters suggested that the Department should give public educational institutions additional time to conduct an assessment of their web content and mobile apps and develop a plan for achieving compliance. Some commenters suggested the Department should give public educational institutions flexibility to stagger their compliance as they see fit and to focus on the accessibility of those materials that they consider most important. The Department does not believe such deference is appropriate. As history has demonstrated, requiring entities to comply with their nondiscrimination obligations without setting clear and predictable standards for when content must be made accessible has not resulted in widespread web and mobile app accessibility. The Department therefore believes it is critical to establish clear and consistent requirements for public entities to follow in making their web content and mobile apps accessible.
As noted in the preceding paragraph, although the Department believes it is important to set clear and consistent requirements for public educational institutions, the Department does not believe it is appropriate to be overly prescriptive with respect to the procedures that those institutions must follow to comply with subpart H of this part. Some commenters suggested that the Department should require public educational institutions to take particular steps to comply with subpart H, such as by holding certain trainings for faculty and staff and dedicating staff positions and funding to accessibility. The Department believes it is appropriate to allow public educational institutions to determine how best to allocate their resources, so long as they satisfy the requirements of subpart H.
Some commenters suggested that the Department should adopt a more permissive approach to conforming alternate versions for public educational institutions. Commenters also suggested that the Department allow public educational institutions to provide an equally effective method of alternative access in lieu of directly accessible, WCAG 2.1 Level AA-conforming versions of materials. For the reasons noted in the discussion of § 35.202 in this appendix, the Department believes that permitting public entities to rely exclusively on conforming alternate versions when doing so is not necessary for technical or legal reasons could result in segregation of people with disabilities, which would be inconsistent with the ADA's core principles of inclusion and integration.
Some commenters argued that the Department should provide additional resources, funding, and guidance to public educational institutions to help them comply with subpart H of this part. The Department notes that it will issue a small entity compliance guide,
One commenter suggested that the Department should create a list of approved third-party vendors for public educational institutions to use to obtain accessible content. Any such specific list that the Department could provide is unlikely to be helpful given the rapid pace at which software and contractors' availability changes. Public entities may find it useful to consult other publicly available resources that can assist in selecting accessibility evaluation tools and experts.
One commenter suggested that the Department should require public educational institutions to offer mandatory courses on accessibility to students pursuing degrees in certain fields, such as computer science, information technology, or computer information systems. This commenter argued that this approach would increase the number of information technology professionals in the future who have the skills to make content accessible. The Department believes this suggestion is outside of the scope of subpart H of this part, which focuses on web and mobile app accessibility under title II. The Department notes that public educational institutions are free to offer such courses if they so choose.
One commenter suggested that if the course content exceptions were retained, the Department should explicitly require public educational institutions to provide clear notice to students with disabilities on whether a particular piece of course content is accessible and how to request accessible materials. The Department believes these concerns are addressed by the decision not to include the course content exceptions in subpart H of this part, which should generally obviate the need for students with disabilities to make individualized requests for course content that complies with WCAG 2.1 Level AA.
Many commenters expressed concern about the extent to which public educational institutions are dependent on third parties to ensure the accessibility of course content, and some commenters suggested that instead of or in addition to regulating public educational institutions, the Department should also regulate the third parties with which those institutions contract to provide course materials. Because subpart H of this part is issued under title II of the ADA, it does not apply to private third parties, and the ultimate responsibility for complying with subpart H rests with public entities. However, the Department appreciates the concerns expressed by commenters that public educational institutions may have limited power to require third-party vendors to make content accessible on an expedited,
Some commenters also expressed views about whether public educational institutions should be required to make posts by third parties on password-protected course websites accessible. The Department wishes to clarify that, because content on password-protected course websites will be treated like any other content under subpart H of this part, posts by third parties on course websites may be covered by the exception for content posted by a third party. However, that exception only applies where the third party is not posting due to contractual, licensing, or other arrangements with the public entity. Accordingly, if the third party is acting on behalf of the public entity, the third-party posted content exception would not apply. The Department believes that whether particular third-party content qualifies for this exception will involve a fact-specific inquiry.
In connection with the proposed exceptions for password-protected course content, the Department also asked if there were any particular issues the Department should consider regarding digital books, textbooks, or libraries. The Department received a variety of comments that addressed these topics.
Some commenters raised issues pertaining to intellectual property law. In particular, commenters expressed different views about whether public entities can alter or change inaccessible electronic books created by third-party vendors to make them accessible for individuals with disabilities. Several commenters requested that the Department clarify how intellectual property law applies to subpart H of this part. Subpart H is not intended to interpret or clarify issues related to intellectual property law. Accordingly, the Department declines to make changes to subpart H in response to commenters or otherwise opine about public entities' obligations with respect to intellectual property law. However, as discussed with respect to § 35.202, “Conforming Alternate Versions,” there may be some instances in which a public entity is permitted to make a conforming alternate version of web content where it is not possible to make the content directly accessible due to legal limitations.
Some commenters also discussed the EPUB file format. EPUB is a widely adopted format for digital books.
As discussed with respect to § 35.104, the Department did not change the definition of “conventional electronic documents” because it believes the current exhaustive list strikes the appropriate balance between ensuring access for individuals with disabilities and feasibility for public entities so that they can comply with subpart H of this part. The Department also declines to adopt additional technical standards or guidance specifically related to EPUBs. The WCAG standards were designed to be “technology neutral.”
Some commenters also addressed public educational entities' use of digital textbooks in general. Commenters stated that many educational courses use digital materials, including digital textbooks, created by third-party vendors. Consistent with many commenters' emphasis that all educational course materials must be accessible under subpart H of this part, commenters also stated that digital textbooks need to be accessible under subpart H. Commenters stated that third-party vendors that create digital textbooks are in the best position to make that content accessible, and it is costly and burdensome for public entities to remediate inaccessible digital textbooks. While one commenter stated that there are currently many examples of accessible digital textbooks, other commenters stated that many digital textbooks are not currently accessible. A commenter also pointed out that certain aspects of digital books and textbooks cannot be made accessible where the layout and properties of the content cannot be changed without changing the meaning of the content, and they recommended that the Department create exceptions for certain aspects of digital books.
After weighing all the comments, the Department believes the most prudent approach is to treat digital textbooks, including EPUBs, the same as all other educational course materials. The Department believes that treating digital textbooks, including EPUBs, in any other way would lead to the same problems commenters identified with respect to the proposed exceptions for password-protected class or course content. For example, if the Department created a similar exception for digital textbooks, it could result in courses being partially accessible and partially inaccessible for certain time periods while books are remediated to meet the needs of an individual with a disability, which could be confusing for both educational institutions and students with disabilities. Furthermore, as discussed elsewhere in this appendix, it would be virtually impossible to set forth a remediation time frame that would provide public educational institutions sufficient time to make digital textbooks accessible without putting students with disabilities too far behind their peers. Accordingly, the Department did not make any changes to subpart H of this part to specifically address digital textbooks. The Department notes that if there are circumstances where certain aspects of digital textbooks cannot conform to WCAG 2.1 Level AA without changing the meaning of the content, public entities may assess whether the fundamental alteration or undue financial or administrative burdens limitations apply, as discussed in § 35.204. As noted elsewhere in this appendix, the Department also expects that as a result of the rulemaking, there will be an increase in demand for accessible content from third-party vendors, and therefore a likely increase in the number of third-party vendors that are equipped to provide accessible digital textbooks.
Some commenters also discussed circumstances in which public entities seek to modify particular web content to meet the specific needs of individuals with disabilities. One commenter suggested that the Department should provide public entities flexibility to focus on meeting the individual needs of students, rather than simply focusing on satisfying the requirements of WCAG 2.1 Level AA. The Department believes that the title II regulation provides public entities sufficient
The Department also recognizes that IDEA established the National Instructional Materials Access Center (“NIMAC”) in 2004, to assist State educational agencies and local educational agencies with producing accessible instructional materials to meet the specific needs of certain eligible students with disabilities.
Some commenters also raised issues relating to public libraries. Commenters stated that libraries have varying levels of resources. Some commenters noted that libraries need additional accessibility training. One commenter requested that the Department identify appropriate accessibility resources and training, and another commenter recommended that the Department should consider allowing variations in compliance time frames for libraries and educational institutions based on their individual needs and circumstances. Commenters noted that digital content available through libraries is often hosted, controlled, or provided by third-party vendors, and libraries purchase subscriptions or licenses to use the material. Commenters stated that it is costly and burdensome for public libraries to remediate inaccessible third-party vendor content. However, one commenter highlighted a number of examples in which libraries at public educational institutions successfully negotiated licensing agreements with third-party vendors that included requirements related to accessibility. Several commenters pointed out that some public libraries also produce content themselves. For example, some libraries participate in the open educational resource movement, which promotes open and free digital educational materials, and some libraries either operate publishing programs or have a relationship with university presses.
After weighing all the comments, the Department believes the most appropriate approach is to treat public libraries the same as other public entities in subpart H of this part. The Department is concerned that treating public libraries in any other way would lead to similar problems commenters identified with respect to the proposed exceptions for password-protected class or course content, especially because some public libraries are connected with public educational entities. With respect to comments about the resources available to libraries and the time frame for libraries to comply with subpart H, the Department also emphasizes that it is sensitive to the need to set a workable standard for all different types of public entities. The Department recognizes that public libraries can vary as much as any other group of public entities covered by subpart H, from small town libraries to large research libraries that are part of public educational institutions. Under § 35.200(b)(2), as under the NPRM, some public libraries will qualify as small public entities and will have an extra year to comply. Subpart H also includes exceptions that are intended to help ensure feasibility for public entities so that they can comply with subpart H and, as discussed in § 35.204, public entities are not required to undertake actions that would represent a fundamental alteration in the nature of a service, program, or activity or impose undue financial and administrative burdens. The Department also notes there that there are free and low-cost training materials available that would help public entities to produce content compliant with WCAG 2.1 Level AA. Accordingly, the Department has not made any changes to subpart H to specifically address public libraries.
Some commenters also noted that public libraries may have collections of materials that are archival in nature, and discussed whether such materials should be covered by an exception. Subpart H of this part contains an exception for archived web content that (1) was created before the date the public entity is required to comply with subpart H, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H; (2) is retained exclusively for reference, research, or recordkeeping; (3) is not altered or updated after the date of archiving; and (4) is organized and stored in a dedicated area or areas clearly identified as being archived. In addition, subpart H contains an exception for preexisting conventional electronic documents, unless such documents are currently used to apply for, gain access to, or participate in a public entity's services, programs, or activities. The Department addressed these exceptions in more detail in the section-by-section analysis of § 35.104, containing the definitions of “archived web content” and “conventional electronic documents”; § 35.201(a), the exception for archived web content; and § 35.201(b), the exception for preexisting conventional electronic documents.
In § 35.201(d), the Department has set forth an exception to the requirements of § 35.200 for conventional electronic documents that are: (1) about a specific individual, their property, or their account; and (2) password-protected or otherwise secured.
Many public entities use web content and mobile apps to provide access to conventional electronic documents for their customers and other members of the public. For example, some public utility companies provide a website where customers can log in and view a PDF version of their latest bill. Similarly, many public hospitals offer a virtual platform where healthcare providers can send conventional electronic document versions of test results and scanned medical records to their patients. Unlike many other types of content covered by subpart H of this part, these documents are relevant only to an individual member of the public, and in many instances, the individuals who are entitled to view a particular individualized conventional electronic document will not need an accessible version.
While public entities, of course, have existing title II obligations to provide accessible versions of individualized, password-protected or otherwise secured conventional electronic documents in a timely manner when those documents pertain to individuals with disabilities, or otherwise provide the information contained in the documents to the relevant individual,
This exception is limited to “conventional electronic documents” as defined in § 35.104. This exception would, therefore, not apply in a case where a public entity makes individualized information available in formats other than a conventional electronic document. For example, if a public medical provider makes individualized medical records available on a password-protected web platform as HTML content (rather than a PDF), that content would not be subject to this exception. Those HTML records, therefore, would need to be made accessible in accordance with § 35.200. On the other hand, if a public entity makes individualized records available on a password-protected web platform as PDF documents, those documents would fall under this exception. In addition, although the exception would apply to individualized, password-protected or otherwise secured conventional electronic documents, the exception would not apply to the platform on which the public entity makes those documents available. The public entity would need to ensure that that platform complies with § 35.200. Further, web content and content in mobile apps that does not take the form of individualized, password-protected or otherwise secured conventional electronic documents but instead notifies users about the existence of such documents must still conform to WCAG 2.1 Level AA unless it is covered by another exception. For example, a public hospital's health records portal may include a list of links to download individualized, password-protected PDF medical records. Under WCAG 2.1 Success Criterion 2.4.4, a public entity would generally have to provide sufficient information in the text of the link alone, or in the text of the link together with the link's programmatically determined link context, so that a user could understand the purpose of each link and determine whether they want to access a given document.
This exception also only applies when the content is individualized for a specific person or their property or account. Examples of individualized documents include medical records or notes about a specific patient, receipts for purchases (like a parent's receipt for signing a child up for a recreational sports league), utility bills concerning a specific residence, or Department of Motor Vehicles records for a specific person or vehicle. Content that is broadly applicable or otherwise for the general public (
This exception applies only to password-protected or otherwise secured content. Content may be otherwise secured if it requires a member of the public to use some process of authentication or login to access the content. Unless subject to another exception, conventional electronic documents that are on a public entity's general, public web platform would not be covered by the exception.
The Department recognizes that there may be some overlap between the content covered by this exception and the exception for certain preexisting conventional electronic documents, § 35.201(b). The Department notes that if web content is covered by the exception for individualized, password-protected or otherwise secured conventional electronic documents, it does not need to conform to WCAG 2.1 Level AA to comply with subpart H of this part, even if the content fails to qualify for another exception, such as the preexisting conventional electronic document exception. For example, a public entity might retain on its website an individualized, password-protected unpaid water bill in a PDF format that was posted before the date the entity was required to comply with subpart H. Because the PDF would fall within the exception for individualized, password-protected or otherwise secured conventional electronic documents, the documents would not need to conform to WCAG 2.1 Level AA, regardless of how the preexisting conventional electronic documents exception might otherwise have applied.
As noted elsewhere in this appendix, while the exception is meant to alleviate the potential burden on public entities of making all individualized, password-protected or otherwise secured conventional electronic documents generally accessible, individuals with disabilities must still be able to access information from documents that pertain to them.
The Department received comments expressing both support for and opposition to this exception. A supporter of the exception observed that, because many individualized, password-protected or otherwise secured conventional electronic documents do not pertain to a person with a disability and would never be accessed by a person with a disability, it is unnecessary to require public entities to devote resources to making all of those documents accessible at the outset. Some commenters suggested that it could be burdensome for public entities to make all of these documents accessible, regardless of whether they pertain to a person with a disability. Some commenters noted that even if some public entities might find it more efficient to make all individualized, password-protected or otherwise secured conventional electronic documents accessible from the outset, this exception is valuable because it gives entities flexibility to select the most efficient option to meet the needs of individuals with disabilities.
The Department also received many comments opposing this exception. Commenters pointed out that it is often critical for individuals, including individuals with disabilities, to have timely access to individualized, password-protected or otherwise secured conventional electronic documents, because those documents may contain sensitive, private, and urgently needed information, such as medical test results, educational transcripts, or tax documents. Commenters emphasized the negative consequences that could result from an individual being unable to access these documents in a timely fashion, from missed bill payments to delayed or missed medical treatments. Commenters expressed concern that this exception could exacerbate existing inequities in access to government services for people with disabilities. Commenters argued that it is ineffective and inappropriate to continue to put the burden on individuals with disabilities to request accessible versions of individualized documents, particularly given that many individuals with disabilities may have repeated interactions with different public entities that generate a large number of individualized, password-protected or otherwise secured conventional electronic documents. One commenter contended that the inclusion of this exception is in tension with other statutes and Federal initiatives that are designed to make it easier for individuals to access electronic health information and other digital resources. Commenters contended that public entities often do not have robust, effective procedures under which people can make such requests and obtain accessible versions quickly without incurring invasions of privacy. Commenters argued that it can be cheaper and easier to make individualized conventional electronic documents accessible at the time they are created, instead of on a case-by-case basis, particularly given that many such documents are generated from templates, which can be made accessible relatively easily. Commenters argued that many public entities already make these sorts of documents accessible, pursuant to their longstanding ADA obligations, so introducing this exception might lead some entities to regress toward less overall accessibility. Some commenters suggested that if the exception is retained in subpart H of this part, the
After reviewing the comments, the Department has decided to retain this exception in subpart H of this part.
The Department understands the concerns raised by commenters about the potential burdens that individuals with disabilities may face if individualized password-protected or otherwise secured documents are not all made accessible at the time they are created and about the potential negative consequences for individuals with disabilities who do not have timely access to the documents that pertain to them. The Department reiterates that, even when documents are covered by this exception, the existing title II obligations require public entities to furnish appropriate auxiliary aids and services where necessary to ensure an individual with a disability has, for example, an equal opportunity to enjoy the benefits of a service.
The Department also reiterates that a public entity might also need to make reasonable modifications to ensure that a person with a disability has equal access to its services, programs, or activities.
Some commenters suggested that the Department should require public entities to adopt specific procedures when they are on notice of an individual's need for accessible individualized, password-protected or otherwise secured conventional electronic documents. For example, some commenters suggested that public entities should be required to establish a specific process through which individuals with disabilities can “opt in” to receiving accessible documents; to display instructions for how to request accessible versions of documents in specific, prominent places on their websites; to make documents accessible within a specified time frame after being on notice of the need for accessibility (suggested time frames ranged from 5 to 30 business days); or to remediate all documents that are based on a particular template upon receiving a request for remediation of an individualized document based on that template. Although the Department appreciates the need to ensure that individuals with disabilities can obtain easily accessible versions of individualized, password-protected or otherwise secured conventional electronic documents, the Department believes it is appropriate to provide flexibility for a public entity in how it reaches that particular goal on a case-by-case basis, so long as the entity's process satisfies the requirements of title II.
Some commenters suggested other revisions to the exception. For example, some commenters suggested that the Department could limit the exception to existing individualized, password-protected or otherwise secured conventional electronic documents, while requiring newly created documents to be automatically accessible. The Department does not believe it is advisable to adopt this revision. A central rationale of this exception—the fact that many individuals to whom individualized documents pertain do not need those documents in an accessible format—remains regardless of whether the documents at issue are existing or newly created.
One commenter suggested the Department could create an expiration date for the exception. The Department does not believe this would be workable, because the challenges that public entities might face in making all individualized, password-protected or otherwise secured conventional electronic documents accessible across the board would likely persist even after any expiration date. One commenter suggested that the exception should not apply to large public entities, such as States. The Department believes that the rationales underlying this exception would apply to both large and small public entities. The Department also believes that the inconsistent application of this exception could create unpredictability for individuals with disabilities. Other commenters suggested additional revisions, such as limiting the exception to documents that are not based on templates; requiring public entities to remove inaccessible documents from systems of records once accessible versions of those documents have been created; and requiring public entities to use HTML pages, which may be easier to make accessible than conventional electronic documents, to deliver individualized information in the future. The Department believes it is more appropriate to give public entities flexibility in how they provide or make available individualized, password-protected or otherwise secured documents to the public, so long as those entities ensure that individuals with disabilities have timely access to the information contained in those documents in an accessible format that protects the privacy and independence of the individual with a disability.
Some commenters asked the Department for additional clarification about how the exception would operate in practice. One commenter asked for clarification about how
The Department also received some comments that suggested that the Department take actions outside the scope of subpart H of this part to make it easier for certain people with disabilities to access platforms that provide individualized, password-protected or otherwise secured documents. For example, the Department received a comment asking the Department to require public entities to offer “lower tech” platforms that are generally simpler to navigate. While the Department recognizes that these are important issues, they are outside the scope of subpart H, and they are therefore not addressed in detail in subpart H.
Subpart H of this part includes an exception in § 35.201(e) for preexisting social media posts, which provides that the requirements of § 35.200 will not apply to a public entity's social media posts that were posted before the date the public entity is required to comply with subpart H. This means that public entities will need to ensure that their social media posts going forward are compliant with the requirements in subpart H beginning on the compliance date outlined in § 35.200(b), but not before that date. The Department includes guidance on public entities' use of social media platforms going forward in the section entitled “Public Entities' Use of Social Media Platforms” in the section-by-section analysis of § 35.200.
The Department is including this exception in subpart H of this part because making preexisting social media posts accessible may be impossible or result in a significant burden. Commenters told the Department that many public entities have posted on social media platforms for several years, often numbering thousands of posts, which may not all be compliant with WCAG 2.1 Level AA. The benefits of making all preexisting social media posts accessible will likely be limited as these posts are generally intended to provide then-current updates on platforms that are frequently refreshed with new information. The Department believes public entities' limited resources are better spent ensuring that current web content and content in mobile apps are accessible, rather than reviewing all preexisting social media posts for compliance or possibly deleting public entities' previous posts if remediation is impossible.
In the NPRM, the Department did not propose any regulatory text specific to the web content and content in mobile apps that public entities make available via social media platforms. However, the Department asked for the public's feedback on adding an exception from coverage under subpart H of this part for a public entity's social media posts if they were posted before the effective date of subpart H.
The Department emphasizes that even if preexisting social media posts do not have to conform to the technical standard, public entities still need to ensure that their services, programs, and activities offered using web content and mobile apps are accessible to people with disabilities on a case-by-case basis in accordance with their existing obligations under title II of the ADA. These obligations include making reasonable modifications to avoid discrimination on the basis of disability, ensuring that communications with people with disabilities are as effective as communications with people without disabilities, and providing people with disabilities an equal opportunity to participate in or benefit from the entity's services, programs, and activities.
Most commenters supported an exception for preexisting social media posts, including commenters representing public entities and disability advocates. Commenters shared that making preexisting social media posts accessible would require a massive allocation of resources, and that in many cases these posts would be difficult or impossible to remediate. Commenters shared that in practice, public entities may need to delete preexisting social media posts to comply with subpart H of this part in the absence of this exception, which could result in a loss of historical information about public entities' activities.
A few commenters shared alternative approaches to this exception. One commenter suggested that highlighted or so-called “pinned” posts (
The Department agrees with the majority of commenters who supported the exception as described in the NPRM, for the reasons shared previously. The Department understands some commenters' concerns with respect to pinned posts as well as concerns with inaccessible postings made after publication of the final rule but before the compliance date. However, the Department believes that the approach provided in subpart H of this part appropriately balances a variety of competing concerns. In particular, the Department is concerned that it would be difficult to define pinned posts given the varied and evolving ways in which different social media platforms allow users to highlight and organize content, such that it could result in confusion. Further, the Department believes that the risk that preexisting pinned posts will stay pinned indefinitely is low, because public entities will likely still want to regularly update their pinned content. Also, requiring these pinned posts to be made accessible risks some of the remediation concerns raised earlier, as public entities may need to delete pinned posts where remediation is infeasible. The Department also has concerns with delineating what content should be considered “core” or “emergency” content.
For these reasons, the Department believes the appropriate approach is to set forth, as it does in § 35.201(e), an exception from the requirements of § 35.200 for all social media posts that were posted prior to the compliance date for subpart H of this part. The Department emphasizes, however, that after the compliance date, public entities must ensure all of their social media posts moving forward comply with subpart H.
In the NPRM, the Department asked for the public's feedback on whether public entities' preexisting videos posted to social media platforms should be covered by an exception due to these same concerns or whether these platforms should otherwise be treated differently. After reviewing public comments with respect to social media, the Department does not believe it is prudent to single out any individual social media platform or subset of content on those platforms for unique treatment under subpart H of this part, as that could lead to confusion and be difficult to implement, especially as social media platforms continually evolve. The Department thus maintains that social media posts must be made accessible under § 35.200 if they are posted after the compliance date of subpart H. The Department recognizes that due to the continually evolving nature of social media platforms, there may be questions about which content is covered by the exception to subpart H. While the Department is choosing not to single out platforms or subsets of platforms in subpart H for unique treatment, the Department encourages public entities to err on the side of ensuring accessibility where there are doubts about coverage, to maximize access for people with disabilities.
Commenters also suggested other ways to address social media, such as providing that
Section 35.202 sets forth the approach to “conforming alternate versions.” Under WCAG, a “conforming alternate version” is a separate web page that, among other things, is accessible, up to date, contains the same information and functionality as the inaccessible web page, and can be reached via a conforming page or an accessibility-supported mechanism.
Generally, to conform to WCAG 2.1, a web page must be directly accessible in that it satisfies the success criteria for one of the defined levels of conformance—in the case of subpart H of this part, Level AA.
The Department is concerned that WCAG 2.1 can be interpreted to permit the development of two separate versions of a public entity's web content—one for individuals with relevant disabilities and another for individuals without relevant disabilities—even when doing so is unnecessary and when users with disabilities would have a better experience using the main web content that is accessible. Such an approach would result in segregated access for individuals with disabilities and be inconsistent with how the ADA's core principles of inclusion and integration have historically been interpreted.
Due to the concerns about user experience, segregation of users with disabilities, unequal access to information, and maintenance burdens mentioned in the preceding paragraph, the Department is adopting a slightly different approach to conforming alternate versions than that provided under WCAG 2.1. Instead of permitting entities to adopt conforming alternate versions whenever they believe it is appropriate, § 35.202(a) states that a public entity may use conforming alternate versions of web content to comply with § 35.200 only where it is not possible to make web content directly accessible due to technical limitations (
The Department slightly revised the text that was proposed in the NPRM for this provision.
In the NPRM, the Department requested comments on its approach to conforming alternate versions. In response, the Department received comments from a variety of commenters. Several commenters supported the Department's proposed approach of permitting the use of conforming alternative versions only when there are technical or legal limitations. Commenters believed these limitations would prevent public entities from using conforming alternate versions frequently and for reasons that do not seem appropriate, such as creating a conforming alternate version for a web page that is less accessible because of the public entity's aesthetic preferences.
Some commenters suggested that the Department should permit conforming alternate versions under a broader range of circumstances. For example, some commenters indicated that a conforming alternate version could provide an equal or superior version of web content for people with disabilities. Other commenters noted that some private companies can provide manual alternate versions that look the same as the original web page but that have invisible coding and are accessible. One commenter stated that the transition from a
A few commenters expressed serious concerns about the use of conforming alternate versions. These commenters stated that conforming alternate versions often result in two separate and unequal websites. Commenters indicated that some entities' conforming alternate versions neither conform to WCAG standards nor contain the same functionality and content and therefore provide fragmented, separate experiences that are less useful for people with disabilities. Other commenters shared that these alternate versions are designed in a way that assumes users are people who are blind and thus do not want visual presentation, when other people with disabilities rely on visual presentations to access the web content. Further, one group shared that many people with disabilities may be skeptical of conforming alternative versions because historically they have not been updated, have been unequal in quality, or have separated users by disability. Another commenter argued that unlimited use of conforming alternate versions could lead to errors and conflicting information because there are two versions of the same content. One commenter suggested prohibiting conforming alternate versions when interaction is a part of the online user experience. Another commenter suggested permitting conforming alternate versions only when a legal limitation makes it impossible to make web content directly accessible, but not when a technical limitation makes it impossible to do so.
Having reviewed public comments and considered this issue carefully, the Department believes subpart H of this part strikes the right balance to permit conforming alternate versions, but only where it is not possible to make web content directly accessible due to technical or legal limitations. The Department believes that this approach ensures that generally, people with disabilities will have direct access to the same web content that is accessed by people without disabilities, but it also preserves flexibility for public entities in situations where, due to a technical or legal limitation, it is impossible to make web content directly accessible. The Department also believes that this approach will help avoid the concerns noted in the preceding paragraphs with respect to segregation of people with disabilities by defining only specific scenarios when the use of conforming alternate versions is appropriate.
Some commenters emphasized the importance of ensuring that under the limited circumstances in which conforming alternate versions are permissible, those versions provide a truly equal experience. Commenters also expressed concern that it might be hard for people with disabilities to find links to conforming alternate versions. The Department notes that under WCAG 2.1, a conforming alternate version is defined, in part, as a version that “conforms at the designated level”; “provides all of the same information and functionality in the same human language”; and “is as up to date as the non-conforming content.”
Some commenters recommended that the Department provide additional guidance and examples of when conforming alternate versions would be permissible, or asked the Department to clarify whether conforming alternate versions would be permissible under particular circumstances. The determination of when conforming alternate versions are needed or permitted varies depending on the facts. For example, a conforming alternate version would not be permissible just because a town's web developer lacked the knowledge or training needed to make content accessible; that would not be a technical limitation within the meaning of § 35.202. By contrast, the town could use a conforming alternate version if its web content included a new type of technology that it is not yet possible to make accessible, such as a specific kind of immersive virtual reality environment. Similarly, a town would not be permitted to claim a legal limitation because its general counsel failed to approve contracts for a web developer with accessibility experience. Instead, a legal limitation would apply when the inaccessible content itself could not be modified for legal reasons specific to that content. The Department believes this approach is appropriate because it ensures that, whenever possible, people with disabilities have access to the same web content that is available to people without disabilities.
One commenter stated that school districts and public postsecondary institutions currently provide accessible alternative content to students with disabilities that is equivalent to the content provided to students without disabilities and that is responsive to the individual student's needs. The commenter argued that public educational institutions should continue to be able to provide these alternative resources to students with disabilities. The Department reiterates that although public educational institutions, like all other public entities, will only be able to provide conforming alternate versions in lieu of directly accessible versions of web content under the circumstances specified in § 35.202, nothing prevents a public educational institution from providing a conforming alternate version in addition to the accessible main version of its web content.
Other commenters requested that the Department impose deadlines or time restrictions on how long a public entity can use a conforming alternate version. However, the Department believes that doing so would conflict with the rationale for permitting conforming alternate versions. Where the technical limitations and legal limitations are truly outside the public entity's control, the Department believes it would be unreasonable to require the public entity to surmount those limitations after a certain period of time, even if they are still in place. However, once a technical or legal limitation no longer exists, a public entity must ensure their web content is directly accessible in accordance with subpart H of this part.
A few commenters also sought clarification on, or broader language to account for, the interaction between the allowance of conforming alternate versions under § 35.202 and the general limitations provided in § 35.204. These two provisions are applicable in separate circumstances. If there is a technical or legal limitation that prevents an entity from complying with § 35.200 for certain content, § 35.202 is applicable. The entity can create a conforming alternate version for that content and, under § 35.202, that entity will be in compliance with subpart H of this part. Separately, if a fundamental alteration or undue financial and administrative burdens prevent a public entity from complying with § 35.200 for certain content, § 35.204 is applicable. As set forth in § 35.204, the public entity must still take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity to the maximum extent possible. A public entity's legitimate claim of fundamental alteration or undue burdens does not constitute a legal limitation under § 35.202 for which a conforming alternate version automatically suffices to comply with subpart H. Rather, the public entity must ensure access “to the maximum extent possible” under the specific facts and circumstances of the situation. Under the specific facts a public entity is facing, the public entity's best option to ensure maximum access may be an alternate version of its content, but the public entity also may be required to do something more or something different. Because the language of § 35.204 already allows for alternate versions if appropriate for the facts of public entity's fundamental alteration or undue burdens, the Department does not see a need to expand the language of § 35.202 to address commenters' concerns.
The Department also wishes to clarify the relationship between §§ 35.202 and 35.205, which are analyzed independently of each other. Section 35.202 provides that a public entity may use conforming alternate versions of web content, as defined by WCAG 2.1, to comply with § 35.200 only where it is not possible to make web content directly accessible due to technical or legal limitations. Accordingly, if a public entity does not make its web content directly accessible and instead provides a conforming alternate version when not required by technical or legal limitations, the public entity may not use that conforming alternate version to comply with its obligations under subpart H of this part, either by relying on § 35.202 or by invoking § 35.205.
Section 35.203 provides that nothing prevents a public entity from using designs, methods, or techniques as alternatives to those prescribed in the regulation, provided that such alternatives result in substantially equivalent or greater accessibility and usability. The 1991 and 2010 ADA Standards for Accessible Design both contain an equivalent facilitation provision.
The Department received a comment arguing that providing phone support in lieu of a WCAG 2.1-compliant website should constitute equivalent facilitation. As discussed in the section entitled “History of the Department's Title II Web-Related Interpretation and Guidance,” the Department no longer believes telephone lines can realistically provide equal access to people with disabilities. Websites—and often mobile apps—allow members of the public to get information or request a service within just a few minutes, and often to do so independently. Getting the same information or requesting the same service using a staffed telephone line takes more steps and may result in wait times or difficulty getting the information.
For example, State and local government entities' web content and mobile apps may allow members of the public to quickly review large quantities of information, like information about how to register for government services, information on pending government ordinances, or instructions about how to apply for a government benefit. Members of the public can then use government web content or mobile apps to promptly act on that information by, for example, registering for programs or activities, submitting comments on pending government ordinances, or filling out an application for a government benefit. A member of the public could not realistically accomplish these tasks efficiently over the phone.
Additionally, a person with a disability who cannot use an inaccessible online tax form might have to call to request assistance with filling out either online or mailed forms, which could involve significant delay, added costs, and could require providing private information such as banking details or Social Security numbers over the phone without the benefit of certain security features available for online transactions. A staffed telephone line also may not be accessible to someone who is deafblind, or who may have combinations of other disabilities, such as a coordination issue impacting typing, and an audio processing disability impacting comprehension over the phone. However, such individuals may be able to use web content and mobile apps that are accessible.
Finally, calling a staffed telephone line lacks the privacy of looking up information on a public entity's web content or mobile app. A caller needing public safety resources, for example, might be unable to access a private location to ask for help on the phone, whereas accessible web content or mobile apps would allow users to privately locate resources. For these reasons, the Department does not now believe that a staffed telephone line—even if it is offered 24/7—provides equal opportunity in the way that accessible web content or mobile apps would.
Section 35.204 sets forth the general limitations on the obligations under subpart H of this part. Section 35.204 provides that in meeting the accessibility requirements set out in subpart H, a public entity is not required to take any action that would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens. These limitations on a public entity's duty to comply with the regulatory provisions mirror the fundamental alteration and undue burdens compliance limitations currently provided in the title II regulation in §§ 35.150(a)(3) (existing facilities) and 35.164 (effective communication), and the fundamental alteration compliance limitation currently provided in the title II regulation in § 35.130(b)(7) (reasonable modifications in policies, practices, or procedures). These limitations are thus familiar to public entities.
The word “full” was removed in § 35.204 so that the text reads “compliance” rather than “full compliance.” The Department made this change because § 35.200(b)(1) and (2) clarifies that compliance with subpart H of this part includes complying with the success criteria and conformance requirements under Level A and Level AA specified in WCAG 2.1. This minor revision does not affect the meaning of § 35.204, but rather removes an extraneous word to avoid redundancy and confusion.
In determining whether an action would result in undue financial and administrative burdens, all of a public entity's resources available for use in the funding and operation of the service, program, or activity should be considered. The burden of proving that compliance with the requirements of § 35.200 would fundamentally alter the nature of a service, program, or activity, or would result in undue financial and administrative burdens, rests with the public entity. As the Department has consistently maintained since promulgation of the title II regulation
The Department believes, in general, it would not constitute a fundamental alteration of a public entity's services, programs, or activities to modify web content or mobile apps to make them accessible within the meaning of subpart H of this part. However, this is a fact-specific inquiry, and the Department provides some examples later in this section of when a public entity may be able to claim a fundamental alteration. Moreover, like the fundamental alteration or undue burdens limitations in the title II regulation referenced in the preceding paragraphs, § 35.204 does not relieve a public entity of all obligations to individuals with disabilities. Although a public entity under this part is not required to take actions that would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens, it nevertheless must comply with the requirements of subpart H of this part to the extent that compliance does not result in a fundamental alteration or undue financial and administrative burdens. For instance, a public entity might determine that complying with all of the success criteria under WCAG 2.1 Level AA would result in a fundamental alteration or undue financial and administrative burdens. However, the public entity must then determine whether it can take any other action that would not result in such an alteration or such burdens, but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity to the maximum extent possible. To the extent that the public entity can, it must do so. This may include the public entity's bringing its web content into conformance to some of the WCAG 2.1 Level A or Level AA success criteria.
It is the Department's view that most entities that choose to assert a claim that complying with all of the requirements under WCAG 2.1 Level AA would result in undue financial and administrative burdens will be able to attain at least partial compliance in many circumstances. The Department believes that there are many steps a public entity can take to conform to WCAG 2.1 Level AA that should not result in undue financial and administrative burdens, depending on the particular circumstances.
Complying with the web and mobile app accessibility requirements set forth in subpart H means that a public entity is not required by title II of the ADA to make any further modifications to the web content or content in mobile apps that it makes available to the public. However, it is important to note that compliance with subpart H of this part will not relieve title II entities of their distinct employment-related obligations under title I of the ADA. The Department realizes that the regulations in subpart H are not going to meet the needs of and provide access to every individual with a disability, but believes that setting a consistent and enforceable web accessibility standard that meets the needs of a majority of individuals with disabilities will provide greater predictability for public entities, as well as added assurance of accessibility for individuals with disabilities. This approach is consistent with the approach the Department has taken in the context of physical accessibility under title II. In that context, a public entity is not required to exceed the applicable design requirements of the ADA Standards even if certain wheelchairs or other power-driven mobility devices require a greater degree of accessibility than the ADA Standards provide.
Similarly, just because an entity is in compliance with the web content or mobile app accessibility standard in subpart H of this part does not mean it has met all of its obligations under the ADA or other applicable laws—it means only that it is not required to make further changes to the web content or content in mobile apps that it makes available. If an individual with a disability, on the basis of disability, cannot access or does not have equal access to a service, program, or activity through a public entity's web content or mobile app that conforms to WCAG 2.1 Level AA, the public entity is still obligated under § 35.200(a) to provide the individual an alternative method of access to that service, program, or activity unless the public entity can demonstrate that alternative methods of access would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.
The public entity must determine on a case-by-case basis how best to meet the needs of those individuals who cannot access a service, program, or activity that the public entity provides through web content or mobile apps that comply with all of the requirements under WCAG 2.1 Level AA. A public entity should refer to § 35.130(b)(1)(ii) to determine its obligations to provide individuals with disabilities an equal opportunity to participate in and enjoy the benefits of the public entity's services, programs, or activities. A public entity should refer to § 35.160 (effective communication) to determine its obligations to provide individuals with disabilities with the appropriate auxiliary aids and services necessary to afford them an equal opportunity to participate in, and enjoy the benefits of, the public entity's services, programs, or activities. A public entity should refer to § 35.130(b)(7) (reasonable modifications) to determine its obligations to provide reasonable modifications in policies, practices, or procedures to avoid discrimination on the basis of disability. It is helpful to provide individuals with disabilities with information about how to obtain the modifications or auxiliary aids and services they may need. For example, while not required in subpart H of this part, a public entity is encouraged to provide an email address, accessible link, accessible web page, or other accessible means of contacting the public entity to provide information about issues individuals with disabilities may encounter accessing web content or mobile apps or to request assistance.
The Department also clarifies that a public entity's requirement to comply with existing ADA obligations remains true for content that fits under one of the exceptions under § 35.201. For example, in the appropriate circumstances, an entity may be obligated to add captions to a video that falls within the archived content exception and provide the captioned video file to the individual with a disability who needs access to the video, or edit an individualized password-protected PDF to be usable with a screen reader and provide it via a secure method to the individual with a disability. Of course, an entity may also choose to further modify the web content or content in mobile apps it makes available to make that content more accessible or usable than subpart H of this part requires. In the context of the preceding examples, for instance, the Department believes it will often be most economical and logical for an entity to post the captioned video, once modified, as part of web content made available to the public, or to modify the individualized PDF template so that it is used for all members of the public going forward.
The Department received comments indicating that the fundamental alteration or undue burdens limitations as discussed in
The Department received some comments suggesting that the Department should state whether certain examples amount to a fundamental alteration or undue burdens or amend the regulation to address the examples. For example, one commenter indicated that some digital content cannot be made accessible and therefore technical infeasibility should be considered an undue burden. Another commenter asserted that it may be an undue burden to require large documents that are 300 pages or more to be accessible under the final regulations; therefore, the final regulations should include a rebuttable presumption that public entities do not have to make these larger documents accessible. In addition, one commenter said they believe that testing the accessibility of web content and mobile apps imposes an undue burden. However, another commenter opined that improving web code is unlikely to pose a fundamental alteration in most cases.
Whether the undue burdens limitation applies is a fact-specific assessment that involves considering a variety of factors. For example, some small towns have minimal operating budgets measured in the thousands or tens of thousands of dollars. If such a town had an archive section of its website with a large volume of material gathered by the town's historical society (such as old photographs and handwritten journal entries from town elders), the town would have an obligation under the existing title II regulation to ensure that its services, programs, and activities offered using web content and mobile apps are accessible to individuals with disabilities. However, it might be an undue burden for the town to make all those materials fully accessible in a short period of time in response to a request by an individual with a disability.
Application of the fundamental alteration limitation is similarly fact specific. For example, a county library might hold an art contest in which elementary school students submit alternative covers for their favorite books and library goers view and vote on the submissions on the library website. It would likely be a fundamental alteration to require the library to modify each piece of artwork so that any text drawn on the alternative covers, such as the title of the book or the author's name, satisfies the color contrast requirements in the technical standard. Even so, the library would still be required to take any other action that would not result in such an alteration but would nevertheless ensure that individuals with disabilities could participate in the contest to the maximum extent possible.
Because each assessment of whether the fundamental alteration or undue burdens limitations applies will vary depending on the entity, the time of the assessment, and various other facts and circumstances, the Department declines to adopt any rebuttable presumptions about when the fundamental alteration or undue burdens limitations would apply.
One commenter proposed that the final regulations should specify factors that should be considered with respect to the undue burdens limitation, such as the number of website requirements that public entities must comply with and the budget, staff, and other resources needed to achieve compliance with these requirements. The Department declines to make changes to the regulatory text because the Department does not believe listing specific factors would be appropriate, particularly given that these limitations apply in other contexts in title II. Also, as noted earlier, the Department believes that generally, it would not constitute a fundamental alteration of a public entity's services, programs, or activities to modify web content or mobile apps to make them accessible in compliance with subpart H of this part.
The Department received a comment suggesting that the regulatory text should require a public entity claiming the undue burdens limitation to identify the inaccessible content at issue, set a reliable point of contact for people with disabilities seeking to access the inaccessible content, and develop a plan and timeline for remediating the inaccessible content. The Department declines to take this suggested approach because it would be a departure from how the limitation generally applies in other contexts covered by title II of the ADA.
Some commenters raised concerns about the requirement in § 35.204 that the decision that compliance with subpart H of this part would result in a fundamental alteration or in undue financial or administrative burdens must be made by the head of a public entity or their designee. These commenters wanted more clarity about who is the head of a public entity. They also expressed concern that this requirement may be onerous for public entities. The Department notes in response to these commenters that this approach is consistent with the existing title II framework in §§ 35.150(a)(3) (service, program, or activity accessibility) and 35.164 (effective communication). With respect to the commenters' concern about who is the head of a public entity or their designee, the Department recognizes the difficulty of identifying the official responsible for this determination given the variety of organizational forms of public entities and their components. The Department has made clear that “the determination must be made by a high level official, no lower than a Department head, having budgetary authority and responsibility for making spending decisions.”
Section 35.205 sets forth when a public entity will be deemed to have complied with
Section 35.205 describes a particular, limited circumstance in which a public entity will be deemed to have met the requirements of § 35.200 even though the public entity's web content or mobile app does not perfectly conform to the technical standard set forth in § 35.200(b). Section 35.205 will apply if the entity can demonstrate that, although it was technically out of conformance to WCAG 2.1 Level AA (
Section 35.205 does not alter a public entity's general obligations under subpart H of this part nor is it intended as a blanket justification for a public entity to avoid conforming with WCAG 2.1 Level AA from the outset. Rather, § 35.205 is intended to apply in rare circumstances and will require a detailed analysis of the specific facts surrounding the impact of each alleged instance of nonconformance. The Department does not expect or intend that § 35.205 will excuse most nonconformance to the technical standard. Under § 35.200(b), a public entity must typically ensure that the web content and mobile apps it provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1. This remains generally true. However, § 35.205 allows for some minor deviations from WCAG 2.1 Level AA if specific conditions are met. This will provide a public entity that discovers that it is out of compliance with the requirements of § 35.200(b) with another means to avoid the potential liability that could result. Public entities that maintain conformance to WCAG 2.1 Level AA will not have to rely on § 35.205 to be deemed compliant with § 35.200, and full conformance to WCAG 2.1 Level AA is the only definitive way to guarantee that outcome. However, if a public entity falls out of conformance in a minimal way or such nonconformance is alleged, a public entity may be able to use § 35.205 to demonstrate that it has satisfied its legal obligations. Section 35.205 also does not alter existing ADA enforcement mechanisms. Individuals can file complaints, and agencies can conduct investigations and compliance reviews, related to subpart H of this part the same way they would for any other requirement under title II.
As the text of the provision indicates, the burden of demonstrating applicability of § 35.205 is on the public entity. The provision will only apply in the limited circumstance in which the public entity can demonstrate that all of the criteria described in § 35.205 are satisfied. This section requires the public entity to show that its nonconformance to WCAG 2.1 Level AA has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the public entity's web content or mobile app as defined in the remainder of the section. If the nonconformance has affected an individual in the ways outlined in § 35.205 (further described in the subsequent paragraphs), the public entity will not be able to rely on this provision. Further, as “demonstrate” indicates, the public entity must provide evidence that all of the criteria described in § 35.205 are satisfied in order to substantiate its reliance on this provision. While § 35.205 does not require a particular type of evidence, a public entity needs to show that, as the text states, its nonconformance “would not affect” the experience of individuals with disabilities as outlined in subsequent paragraphs. Therefore, it would not be sufficient for a public entity to show only that it has not received any complaints regarding the nonconformance; nor would it likely be enough if the public entity only pointed to a few particular individuals with disabilities who were unaffected by the nonconformance. The public entity must show that the nonconformance is of a nature that would not affect people whose disabilities are pertinent to the nonconformance at issue, just as the analysis under other parts of the title II regulation depends on the barrier at issue and the access needs of individuals with disabilities pertinent to that barrier.
With respect to the particular criteria that a public entity must satisfy, § 35.205 describes both what people with disabilities must be able to use the public entity's web content or mobile apps to do and the manner in which people with disabilities must be able to do it. As to manner of use, § 35.205 provides that nonconformance to WCAG 2.1 Level AA must not affect the ability of individuals with disabilities to use the public entity's web content or mobile app in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use compared to individuals without disabilities. Timeliness, privacy, and independence are underscored throughout the ADA framework as key components of ensuring equal opportunity for individuals with disabilities to participate in or benefit from a public entity's services, programs, and activities, as explained further later in the discussion of this provision, and “ease of use” is intended to broadly encompass other aspects of a user's experience with web content or mobile apps. To successfully rely on § 35.205, it would not be sufficient for a public entity to demonstrate merely that its nonconformance would not completely block people with disabilities from using web content or a mobile app as described in § 35.205(a) through (d). That is, the term “would not affect” should not be read in isolation from the rest of § 35.205 to suggest that a public entity only needs to show that a particular objective can be achieved. Rather, a public entity must also demonstrate that, even though the web content or mobile app does not conform to the technical standard, the user experience for individuals with disabilities is substantially equivalent to the experience of individuals without disabilities.
For example, if a State's online renewal form does not conform to WCAG 2.1 Level AA, a person with a manual dexterity disability may need to spend significantly more time to renew their professional license online than someone without a disability. This person might also need to seek assistance from someone who does not have a disability, provide personal information to someone else, or endure a much more cumbersome and frustrating process than a user without a disability. Even if this person with a disability was ultimately able to renew their license online, § 35.205 would not apply because, under these circumstances, their ability to use the web content in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use would be affected. Analysis under this provision is likely to be a fact-intensive analysis. Of course, a public entity is not responsible for every factor that might make a task more time-consuming or difficult for a person with a disability. However, a public entity is responsible for the impact of its nonconformance to the technical standard set forth in subpart H of this part. The public entity must show that its nonconformance would not affect the ability of individuals with pertinent disabilities to use the web content or mobile app in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use.
Paragraphs (a) through (d) of § 35.205 describe what people with disabilities must be able to use the public entity's web content or mobile apps to do in a manner that is substantially equivalent as to timeliness, privacy, independence, and ease of use. First, under § 35.205(a), individuals with disabilities must be able to access the same information as individuals without disabilities. This means that people with disabilities can access all the same information using the web content or mobile app that users without disabilities are able to access. For example, § 35.205(a) would not be
Second, § 35.205(b) states that individuals with disabilities must be able to engage in the same interactions as individuals without disabilities. This means that people with disabilities can interact with the web content or mobile app in all of the same ways that people without disabilities can. For example, § 35.205(b) would not be satisfied if people with disabilities could not interact with all of the different components of the web content or mobile app, such as chat functionality, messaging, calculators, calendars, and search functions. However, § 35.205(b) might be satisfied if the time limit for an interaction, such as a chat response, expires at exactly 20 hours, even though Success Criterion 2.2.1,
Third, pursuant to § 35.205(c), individuals with disabilities must be able to conduct the same transactions as individuals without disabilities. This means that people with disabilities can complete all of the same transactions on the web content or mobile app that people without disabilities can. For example, § 35.205(c) would not be satisfied if people with disabilities could not submit a form or process their payment. However, § 35.205(c) would likely be satisfied if web content does not conform to Success Criterion 4.1.1 about parsing. This Success Criterion requires that information is coded properly so that technology like browsers and screen readers can accurately interpret the content and, for instance, deliver that content to a user correctly so that they can complete a transaction, or avoid crashing in the middle of the transaction.
Fourth, § 35.205(d) requires that individuals with disabilities must be able to otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities. Section 35.205(d) is intended to address anything else within the scope of title II (
The regulatory language codified in § 35.205 is very similar to language discussed in the NPRM's preamble.
First, though the NPRM discussed excusing noncompliance that “does not prevent” equal access, § 35.205 excuses noncompliance that “would not affect” such access. The Department was concerned that the use of “does not” could have been incorrectly read to require a showing that a specific individual did not have substantially equivalent access to the web content or mobile app. In changing the language to “would not,” the Department clarifies that the threshold requirements for bringing a challenge to compliance under subpart H of this part are the same as under any other provision of the ADA. Except as otherwise required by existing law, a rebuttal of a public entity's invocation of this provision would not need to show that a specific individual did not have substantially equivalent access to the web content or mobile app. Rather, the issue would be whether the nonconformance is the type of barrier that would affect the ability of individuals with pertinent disabilities to access the web content or mobile app in a substantially equivalent manner. The same principles would apply to informal dispute resolution or agency investigations resolved outside of court, for example. Certainly, the revised standard would encompass a barrier that actually does affect a specific individual's access, so this revision does not narrow the provision.
Second, the Department originally proposed considering whether nonconformance “prevent[s] a person with a disability” from using the web content or mobile app, but § 35.205 instead considers whether nonconformance would “affect the ability of individuals with disabilities” to use the web content or mobile app. This revision is intended to clarify what a public entity seeking to invoke this provision needs to demonstrate. The Department explained in the NPRM that the purpose of this approach was to provide equal access to people with disabilities, and limit violations to those that affect access.
Third, the language proposed in the NPRM considered whether a person with a disability would have substantially
Therefore, the Department has added additional language to clarify that timeliness, privacy, and independence are all important concepts to consider when evaluating whether this provision applies. If a person with a disability would need to take significantly more time to successfully navigate web content or a mobile app that does not conform to the technical standard because of the content or app's nonconformance, that person is not being provided with a substantially equivalent experience to that of people without disabilities. Requiring a person with a disability to spend substantially more time to do something is placing an additional burden on them that is not imposed on others. Privacy and independence are also crucial components that can affect whether a person with a disability would be prevented from having a substantially equivalent experience. Adding this language to § 35.205 ensures consistency with the effective communication provision of the ADA.
After carefully considering the various public comments received, the Department believes that a tailored approach is needed for measuring compliance with a technical standard in the digital space. The Department also believes that the compliance framework adopted in § 35.205 is preferable to any available alternatives because it strikes the most appropriate balance between equal access for individuals with disabilities and feasibility for public entities.
Most of the commenters who addressed the question of what approach subpart H of this part should take to assessing compliance provided information that supported the Department's decision to tailor an approach for measuring compliance that is specific to the digital space (
First, many commenters, including commenters from State and local government entities and trade groups representing public accommodations, emphasized how the built environment differs from the digital environment. These commenters agreed with the Department's suggestion in the NPRM that the dynamic and interconnected nature of web content and mobile apps could present unique challenges for compliance.
Digital content changes much more frequently than buildings do. Every modification to web content or a mobile app could lead to some risk of falling out of perfect conformance to WCAG 2.1 Level AA. Public entities will need to address this risk much more frequently under subpart H of this part than they do under the ADA's physical access requirements, because web content and mobile apps are updated much more often than buildings are. By their very nature, web content and mobile apps can easily be updated often, while most buildings are designed to last for years, if not decades, without extensive updates.
As such, State and local government entities trying to comply with their obligations under subpart H of this part will need to evaluate their compliance more frequently than they evaluate the accessibility of their buildings. But regular consideration of how any change that they make to their web content or mobile app will affect conformance to WCAG 2.1 Level AA and the resulting iterative updates may still allow minor nonconformances to escape notice. Given these realities attending web content and mobile apps, the Department believes that it is likely to be more difficult for State and local government entities to maintain perfect conformance to the technical standard set forth in subpart H than it is to comply with the ADA Standards. Commenters agreed that maintaining perfect conformance to the technical standard would be difficult.
Web content and content in mobile apps are also more likely to be interconnected, such that updates to some content may affect the conformance of other content in unexpected ways, including in ways that may lead to technical nonconformance without affecting the user experience for individuals with disabilities. Thus, to maintain perfect conformance, it would not necessarily be sufficient for public entities to confirm the conformance of their new content; they would also need to ensure that any updates do not affect the conformance of existing content. The same kind of challenge is unlikely to occur in physical spaces.
Second, many commenters raised concerns about the litigation risk that requiring perfect conformance to WCAG 2.1 Level AA would pose. Commenters feared being subjected to a flood of legal claims based on any failure to conform to the technical standard, however minor, and regardless of the impact—or lack thereof—the nonconformance has on accessibility. Commenters agreed with the Department's suggestion that due to the dynamic, complex, and interconnected nature of web content and mobile apps, a public entity's web content and mobile apps may be more likely to be out of conformance to WCAG 2.1 Level AA than its buildings are to be out of compliance with the ADA Standards, leading to increased legal risk. Some commenters even stated that 100 percent conformance to WCAG 2.1 Level AA would be unattainable or impossible to maintain. Commenters also agreed with the Department's understanding that the prevalence of automated web accessibility testing could enable any individual to find evidence of nonconformance to WCAG 2.1 Level AA even where that individual has not experienced any impact on access and the nonconformance would not affect others' access, with the result that identifying instances of merely technical nonconformance to WCAG 2.1 Level AA is likely much easier than identifying merely technical noncompliance with the ADA Standards.
Based on the comments it received, the Department believes that if it does not implement a tailored approach to compliance under subpart H of this part, the burden of litigation under subpart H could become particularly challenging for public entities, enforcement agencies, and the courts. Though many comments about litigation risk came from public entities, commenters from some disability advocacy organizations agreed that subpart H should not encourage litigation about issues that do not affect a person with a disability's ability to equally use and benefit from a website or mobile app, and that liability should be limited. After considering the information commenters provided, the Department is persuaded that measuring compliance as strictly 100 percent conformance to WCAG 2.1 Level AA would not be the most prudent approach, and that an entity's compliance obligations can be limited under some narrow circumstances without undermining the objective of ensuring equal access to web content and mobile apps in subpart H.
The Department has carefully considered many different approaches to defining when a State or local government entity has met its obligations under subpart H of this part. Of all the approaches considered—including those discussed in the NPRM as well as those
Primarily, the Department has selected this approach because it appropriately focuses on the experience of individuals with disabilities who are trying to use public entities' web content or mobile apps. By looking at the effect of any nonconformance to the technical standard, this approach will most successfully implement the ADA's goals of “equality of opportunity” and “full participation.”
The Department heard strong support from the public for ensuring that people with disabilities have equal access to the same services, programs, and activities as people without disabilities, with equivalent timeliness, privacy, independence, and ease of use. Similarly, many commenters from disability advocacy organizations stated that the goal of subpart H of this part should be to provide access to people with disabilities that is functionally equivalent to the access experienced by people without disabilities. Other disability advocates stressed that technical compliance should not be prioritized over effective communication. Section 35.205 will help to achieve these goals.
The Department believes that this approach will not have a detrimental impact on the experience of people with disabilities who are trying to use web content or mobile apps. By its own terms, § 35.205 would require a public entity to demonstrate that any nonconformance would not affect the ability of individuals with disabilities to use the public entity's web content or mobile app in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use. As discussed earlier in the analysis of § 35.205, it is likely that this will be a high hurdle to clear. If nonconformance to the technical standard would affect people with disabilities' ability to use the web content or mobile app in this manner, this provision will not apply, and a public entity will not have met its obligations under subpart H of this part. As noted earlier in this discussion, full conformance to WCAG 2.1 Level AA is the only definitive way for a public entity to avoid reliance on § 35.205.
This provision would nonetheless provide public entities who have failed to conform to WCAG 2.1 Level AA with a way to avoid the prospect of liability for an error that is purely technical in nature and would not affect accessibility in practice. This will help to curtail the specter of potential liability for every minor technical error, no matter how insignificant. However, § 35.205 is intended to apply in rare circumstances and will require a detailed analysis of the specific facts surrounding the impact of each alleged instance of nonconformance. As noted earlier, the Department does not expect or intend that § 35.205 will excuse most nonconformance to the technical standard.
The Department also believes this approach is preferable to the other approaches considered because it is likely to be familiar to people with disabilities and public entities, and this general consistency with title II's regulatory framework (notwithstanding some necessary differences from the physical context as noted earlier in this discussion) has important benefits. The existing regulatory framework similarly requires public entities to provide equal opportunity to participate in or benefit from services, programs, or activities;
Finally, this approach to compliance is preferable to the other approaches the Department considered because there was a notable consensus among public commenters supporting it. A wide range of commenters, including disability advocacy organizations, trade groups representing public accommodations, accessibility experts, and State and local government entities submitted supportive comments. Even some of the commenters who opposed this approach noted that it would be helpful if it was combined with a clear technical standard, which the Department has done. Commenters representing a broad spectrum of interests seem to agree with this approach, with several commenters proposing very similar regulatory language. After considering the relative consensus among commenters, together with the other factors discussed herein, the Department has decided to adopt the approach to defining compliance that is set forth in § 35.205.
In addition to the approach set forth in § 35.205, the Department also considered compliance approaches that would have allowed isolated or temporary interruptions to conformance; required a numerical percentage of conformance to the technical standard; or allowed public entities to demonstrate compliance either by establishing and following certain specified accessibility policies and practices or by showing organizational maturity (
As the Department noted in the NPRM,
The Department has considered all of the comments it received on this issue and,
The Department believes it is likely that the approach set forth in § 35.205 reduces the need for a provision that would explicitly allow for instances of isolated or temporary noncompliance due to maintenance or repairs, while simultaneously limiting the negative impact of such a provision on individuals with disabilities. The Department believes this is true for two reasons.
First, to the extent isolated or temporary noncompliance due to maintenance or repairs occur that affect web content or mobile apps, it logically follows from the requirements in subpart H of this part that these interruptions should generally result in the same impact on individuals with and without disabilities after the compliance date because, in most cases, all users would be relying on the same content, and so interruptions to that content would impact all users. From the compliance date onward, accessible web content and mobile apps and the web content and mobile apps used by people without disabilities should be one and the same (with the rare exception of conforming alternate versions provided for in § 35.202). Therefore, the Department expects that isolated or temporary noncompliance due to maintenance or repairs generally will affect the ability of people with disabilities to use web content or mobile apps to the same extent it will affect the experience of people without disabilities. For example, if a website is undergoing overnight maintenance and so an online form is temporarily unavailable, the form would already conform to WCAG 2.1 Level AA, and so there would be no separate feature or form for individuals with disabilities that would be affected while a form for people without disabilities is functioning. In such a scenario, individuals with and without disabilities would both be unable to access web content, such that there would be no violation of subpart H of this part.
Thus, the Department believes that a specific provision regarding isolated or temporary noncompliance due to maintenance or repairs is less necessary than it is for physical access. When there is maintenance to a feature that provides physical access, such as a broken elevator, access for people with disabilities is particularly impacted. In contrast, when there is maintenance to web content or mobile apps, people with and without disabilities will generally both be denied access, such that no one is denied access on the basis of disability.
Second, even to the extent isolated or temporary noncompliance due to maintenance or repairs affects only an accessibility feature, that noncompliance may fit the parameters laid out in § 35.205 such that an entity will be deemed to have complied with its obligations under § 35.200. Section 35.205 does not provide a blanket limitation that would excuse all isolated or temporary noncompliance due to maintenance or repairs, however. The provision's applicability would depend on the particular circumstances of the interruption and its impact on people with disabilities. It is possible that an interruption that only affects an accessibility feature will not satisfy the elements of § 35.205 and an entity will not be deemed in compliance with § 35.200. Even one temporary or isolated instance of nonconformance could affect the ability of individuals with disabilities to use the web content with substantially equivalent ease of use, depending on the circumstances. As discussed in this section, this will necessarily be a fact-specific analysis.
In addition to being less necessary than in the physical access context, the Department also believes a specific provision regarding isolated or temporary interruptions due to maintenance or repairs would have more detrimental incentives in the digital space by discouraging public entities from adopting practices that would reduce or avert the disruptions caused by maintenance and repair that affect accessibility. Isolated or temporary noncompliance due to maintenance or repairs of features that provide physical access would be necessary regardless of what practices public entities put in place,
The Department considered requiring a certain numerical percentage of conformance to the technical standard. This percentage could be a simple numerical calculation based on the number of instances of nonconformance across the public entity's web content or mobile app, or the percentage could be calculated by weighting different instances of nonconformance differently. Weighted percentages of many different types, including giving greater weight to more important content, more frequently accessed content, or more severe access barriers, were considered.
When discussing a numerical approach in the NPRM, the Department noted that the approach seemed unlikely to ensure access.
Based on the public comments it received about this framework, which overwhelmingly agreed with the concerns the Department raised in the NPRM, the Department continues to believe that adopting a percentage-based approach is not feasible. The Department received a very small number of comments advocating for this approach, which were all from State and local government entities. Even fewer commenters suggested a framework for implementing this approach (
The Department also considered allowing a public entity to demonstrate compliance with subpart H of this part by affirmatively establishing and following certain robust policies and practices for accessibility feedback, testing, and remediation. Under this approach, the Department would have specified that nonconformance to WCAG 2.1 Level AA does not constitute noncompliance with subpart H if a public entity has established certain policies for testing the accessibility of its web content and mobile apps and remediating inaccessible content, and the entity can demonstrate that it follows those policies. Potential policies could also address accessibility training.
As the Department stated in the NPRM, there were many ways to define the specific policies that would have been deemed sufficient under this approach.
The Department declines to adopt a policy-based approach because, based on the wide range of policies and practices proposed by commenters, there is not a sufficient rationale that would justify adopting any specific set of accessibility policies in the generally applicable regulation in subpart H of this part. Many of the policies commenters suggested would require the Department to dictate particular details of all public entities' day-to-day operations in a way the Department does not believe is appropriate or sufficiently justified to do in subpart H. There was no consensus among commenters about what policies would be sufficient, and most commenters did not articulate a specific basis supporting why their preferred policies were more appropriate than any other policies. In the absence of more specific rationales or a clearer consensus among commenters or experts in the field about what policies would be sufficient, the Department does not believe it is appropriate to prescribe what specific accessibility testing and remediation policies all State and local government entities must adopt to comply with their obligations under subpart H. Based on the information available to the Department at this time, the Department's adoption of any such specific policies would be unsupported by sufficient evidence that these policies will ensure accessibility, which could cause significant harm. It would allow public entities to comply with their legal obligations under subpart H based on policies alone, even though those policies may fail to provide equal access to online services, programs, or activities.
The Department also declines to adopt a policy-based approach that would rely on the type of general, flexible policies supported by some commenters, in which the sufficiency of public entities' policies would vary depending on the factual circumstances. The Department does not believe that such an approach would give individuals with disabilities sufficient certainty about what policies and access they could expect. Such an approach would also fail to give public entities sufficient certainty about how they should meet their legal obligations under subpart H of this part. If it adopted a flexible approach suggested by commenters, the Department might not advance the current state of the law, because every public entity could choose any accessibility testing and remediation policies it believed would be sufficient to meet its general obligations, without conforming to the technical standard or ensuring access. The Department has heard State and local government entities' desire for increased clarity about their legal obligations, and adopting a flexible standard would not address that need.
Another compliance approach that the Department considered would have allowed an entity to demonstrate compliance with subpart H of this part by showing organizational maturity (
Commenters, including disability advocacy organizations, State and local government entities, trade groups representing public accommodations, and accessibility experts were largely opposed to using an organizational maturity approach to evaluate compliance. Notably, one of the companies that developed an organizational maturity model the Department discussed in the NPRM did not believe that an organizational maturity model was an appropriate way to assess compliance. Other commenters who stated that they supported the organizational maturity approach also seemed to be endorsing organizational maturity as a best practice rather than a legal framework, expressing that it was not an appropriate substitute for conformance to a technical standard.
Misunderstandings about what an organizational maturity framework is and how the Department was proposing to use it that were evident in several comments also demonstrated that the organizational maturity approach raised in the NPRM was not sufficiently clear to the public. For example, at least one commenter conflated organizational maturity with the approach the Department considered that would assess an organization's policies. Another commenter seemed to understand the Department's consideration of organizational maturity as only recommending a best practice, even though the Department was considering it as legal requirement. Comments like these indicate that the organizational maturity approach the Department considered to measure compliance would be confusing to the public if adopted.
Among commenters that supported the organizational maturity approach, there was no consensus about how organizational maturity should be defined or assessed, or what level of organizational maturity should be sufficient to demonstrate compliance with subpart H of this part. There are many ways to measure organizational maturity, and it is not clear to the Department that one organizational maturity model is more appropriate or more effective than any other. The Department therefore declines to adopt an organizational maturity approach in subpart H because any organizational maturity model for compliance with web accessibility that the Department could develop or incorporate would not have sufficient justification based on the facts available to the Department at this time. As with the policy-based approach discussed previously in this appendix, if the Department were to allow public entities to define their own organizational maturity approach instead of adopting one specific model, this would not provide sufficient predictability or certainty for people with disabilities or public entities.
The Department also declines to adopt this approach because commenters did not provide—and the Department is not aware of—information or data to suggest that increased organizational maturity reliably resulted in increased conformance to WCAG 2.1 Level AA. Like the policy-based approach discussed previously in this appendix, if the Department were to adopt an organizational maturity approach that was not sufficiently rigorous, public entities would be able to comply with subpart H of this part without providing equal access. This would undermine the purpose of the part.
The Department also considered approaches to measuring compliance that have been used by other agencies, other countries or international organizations, and States, as discussed in the NPRM.
The Department has also determined that none of the international approaches to evaluating compliance with web accessibility laws that were discussed in the NPRM are currently feasible to adopt in the United States.
The Department has considered many States' approaches to assessing compliance with their web accessibility laws
The Department also declines to adopt a model like the one used in Texas, which requires State agencies to, among other steps, conduct tests with one or more accessibility validation tools, establish an accessibility policy that includes criteria for compliance monitoring and a plan for remediation of noncompliant items, and establish goals and progress measurements for accessibility.
Commenters suggested a few additional State and international approaches to compliance that were not discussed in the NPRM. Though the Department reviewed and considered each of these approaches, it finds that they are not appropriate to adopt in subpart H of this part. First, Washington's accessibility policy
Additionally, one commenter suggested that the Department look to the Accessibility for Ontarians with Disabilities Act
Finally, a coalition of State Attorneys General described how their States' agencies currently determine whether State websites and other technology are accessible, and suggested that the Department incorporate
Commenters also suggested many other approaches the Department should take to assess and ensure compliance with subpart H of this part. The Department has considered all of the commenters' suggestions and declines to adopt them at this time.
First, commenters suggested that public entities should be permitted to provide what they called an “accommodation” or an “equally effective alternative method of access” when web content or mobile apps are not accessible. Under the approach these commenters envisioned, people with disabilities would need to pursue an interactive process where they discussed their access needs with the public entity and the public entity would determine how those needs would be met. The Department believes that adopting this approach would undermine a core premise of subpart H of this part, which is that web content and mobile apps will generally be accessible by default. That is, people with disabilities typically will not need to make a request to gain access to services, programs, or activities offered online, nor will they typically need to receive information in a different format. If the Department were to adopt the commenters' suggestion, the Department believes that subpart H would not address the gaps in accessibility highlighted in the need for the rulemaking discussed in section III.D.4 of the preamble to the final rule, as the current state of the law already requires public entities to provide reasonable modifications and effective communication to people with disabilities.
Second, commenters suggested a process, which is sometimes referred to as “notice and cure,” by which a person with a disability who cannot access web content or a mobile app would need to notify the public entity that their web content or mobile app was not accessible and give the public entity a certain period of time to remediate the inaccessibility before the entity could be considered out of compliance with subpart H of this part. The Department is not adopting this framework for reasons similar to those discussed in relation to the “equally effective alternative” approach rejected in the previous paragraph. With subpart H, the Department is ensuring that people with disabilities generally will not have to request access to public entities' web content and content in mobile apps, nor will they typically need to wait to obtain that access. Given the Department's longstanding position on the accessibility of online content, discussed in section III.B and C of the preamble to the final rule, public entities should already be on notice of their obligations. If they are not, the final rule unquestionably puts them on notice.
Third, commenters suggested a flexible approach to compliance that would only require substantial compliance, good faith effort, reasonable efforts, or some similar concept that would allow the meaning of compliance to vary too widely depending on the circumstances, and without a clear connection to whether those efforts result in actual improvements to accessibility for people with disabilities. The Department declines to adopt this approach because it does not believe such an approach would provide sufficient certainty or predictability to State and local government entities or individuals with disabilities. Such an approach would undermine the benefits of adopting a technical standard.
The Department has already built a series of mechanisms into subpart H of this part that are designed to make it feasible for public entities to comply, including the delayed compliance dates in § 35.200(b), the exceptions in § 35.201, the conforming alternate version provision in § 35.202, the fundamental alteration or undue burdens limitations in § 35.204, and the compliance approach discussed here. In doing so, the Department has allowed for several departures from the technical standard, but only under clearly defined and uniform criteria, well-established principles in the ADA or WCAG, or circumstances that would not affect substantially equivalent access. Many of the approaches that commenters proposed are not similarly cabined. Those approaches would often allow public entities' mere attempts to achieve compliance to substitute for access. The Department declines to adopt more flexibility than it already has because it finds that doing so would come at too great a cost to accessibility and to the clarity of the obligations in subpart H.
Fourth, several commenters proposed a multi-factor or tiered approach to compliance. For example, one commenter suggested a three-tiered system where after one failed accessibility test the public entity would investigate the problem, after multiple instances of nonconformance they would enter into a voluntary compliance agreement with the Department, and if there were widespread inaccessibility, the Department would issue a finding of noncompliance and impose a deadline for remediation. Similarly, another commenter proposed that enforcement occur only when two of three criteria are met: errors are inherent to the content itself, errors are high impact or widely prevalent, and the entity shows no evidence of measurable institutional development regarding accessibility policy or practice within a designated time frame. The Department believes that these and other similar multi-factor approaches to compliance would be too complex for public entities to understand and for the Department to administer. It would also be extremely challenging for the Department to define the parameters for such an approach with an appropriate level of precision and a sufficiently well-reasoned justification.
Finally, many commenters proposed approaches to compliance that would expand the Department's role. Commenters suggested that the Department grant exceptions to the requirements in subpart H of this part on a case-by-case basis; specify escalating penalties; conduct accessibility audits, testing, or monitoring; provide grant funding; develop accessibility advisory councils; provide accessibility testing tools; specify acceptable accessibility testing software, resources, or methodologies; provide a list of accessibility contractors; and provide guidance, technical assistance, or training.
With the exception of guidance and continuing to conduct accessibility testing as part of compliance reviews or other enforcement activities, the Department is not currently in a position to take any of the actions commenters requested. As described in this section, the Department has limited enforcement resources. It is not able to review requests for exceptions on a case-by-case basis, nor is it able to conduct accessibility testing or monitoring outside of compliance reviews, settlement agreements, or consent decrees. Civil penalties for noncompliance with the ADA are set by statute and are not permitted under title II.
The Department will issue a small entity compliance guide
The Department received comments on a variety of other issues in response to the NPRM. The Department responds to the remaining issues not already addressed in this section-by-section analysis.
The Department received some comments that suggested that the Department should take actions outside the scope of the rulemaking to improve accessibility for people with disabilities. For example, the Department received comments suggesting that the rulemaking should: apply to all companies or entities covered under title III of the ADA; prohibit public entities from making information or communication available only via internet means; revise other portions of the title II regulation like subpart B of this part (general requirements); require accessibility of all documents behind any paywall regardless of whether title II applies; and address concerns about how the increased use of web and mobile app technologies may affect individuals with electromagnetic sensitivity. While the Department recognizes that these are important accessibility issues to people with disabilities across the country, they are outside of the scope of subpart H of this part, which focuses on web and mobile app accessibility under title II. Accordingly, these issues are not addressed in detail in subpart H.
The Department also received comments recommending that this part cover a broader range of technology in addition to web content and mobile apps, including technologies that may be developed in the future. The Department declines to broaden this part in this way. If, for example, the Department were to broaden the scope of the rulemaking to cover an open-ended range of technology, it would undermine one of the major goals of the rulemaking, which is to adopt a technical standard State and local government entities must adhere to and clearly specify which content must comply with that standard. In addition, the Department does not currently have sufficient information about how technology will develop in the future, and how WCAG 2.1 Level AA will (or will not) apply to that technology, to enable the Department to broaden the part to cover all future technological developments. Also, the Department has a long history of engaging with the public and stakeholders about web and mobile app accessibility and determined that it was appropriate to prioritize regulating in that area. However, State and local government entities have existing obligations under title II of the ADA with respect to services, programs, and activities offered through other types of technology.
Another commenter suggested that the rulemaking should address operating systems. The commenter also suggested clarifying that public entities are required to ensure web content and mobile apps are accessible, usable, and interoperable with assistive technology. The Department understands this commenter to be requesting that the Department establish additional technical standards in this part beyond WCAG 2.1 Level AA, such as technical standards related to software. As discussed in this section and the section-by-section analysis of § 35.104, subpart H of this part focuses on web content and mobile apps. The Department also clarified in the section-by-section analysis of § 35.200 why it believes WCAG 2.1 Level AA is the appropriate technical standard for subpart H.
One commenter asked if the Department has coordinated with State governments and other Federal agencies that are working to address web and mobile app accessibility to ensure there is consistency with other government accessibility requirements. Subpart H of this part is being promulgated under part A of title II of the ADA. The Department's analysis and equities may differ from State and local government entities that may also interpret and enforce other laws addressing the rights of people with disabilities. However, through the NPRM process, the Department received feedback from the public, including public entities, through written comments and listening sessions. In addition, the final rule and associated NPRM were circulated to other Federal Government agencies as part of the Executive Order 12866 review process. In addition, under Executive Order 12250, the Department also coordinates with other Federal agencies to ensure the consistent and effective implementation of section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability, and to ensure that such implementation is consistent with title II of the ADA across the Federal Government.
Some commenters discussed how this part might impact State law, including one comment that asked how a public entity should proceed if it is subject to a State law that provides greater protections than this part. This part will preempt State laws affecting entities subject to title II of the ADA only to the extent that those laws provide less protection for the rights of individuals with disabilities.
One public entity said that the Department should permit public entities to continue to use certain older technologies, because some public entities have systems that were developed several years ago with technologies that may not be able to comply with this part. The commenter also added that if a public entity is aware of the technical difficulties or need for remediation in relation to recent maintenance, updates, or repairs, more leniency should be given to the
The Department believes it has balanced the need to establish a workable standard for public entities with the need to ensure accessibility for people with disabilities in many ways, such as by establishing delayed compliance dates to give public entities time to ensure their technologies can comply with subpart H of this part. In addition, subpart H provides some exceptions addressing older content, such as the exceptions for archived web content, preexisting conventional electronic documents, and preexisting social media posts. The Department believes that these exceptions will assist covered entities in using their resources more efficiently. Also, the Department notes that public entities will be able to rely on the fundamental alteration or undue burdens and limitations in subpart H where they can satisfy the requirements of those provisions. Finally, the Department discussed isolated or temporary interruptions in § 35.205 of the section-by-section analysis, where it explained its decision not to separately excuse an entity's isolated or temporary noncompliance with § 35.200 due to maintenance or repairs.
Several comments expressed concerns about public entities using accessibility overlays and automated checkers.
At least one commenter suggested that the Department should require public entities to hire an ADA Coordinator devoted specifically to web accessibility, similar to the requirement in the existing title II regulation at § 35.107(a). The Department believes it is important for public entities to have flexibility in deciding how to internally oversee their compliance with subpart H of this part. However, nothing in subpart H would prohibit a public entity from appointing an ADA coordinator for web content and mobile apps if the public entity believes taking such an action would help it comply with subpart H.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Direct final rule.
The Energy Policy and Conservation Act, as amended (“EPCA”), prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including dishwashers. In this direct final rule, the U.S. Department of Energy (“DOE”) is adopting amended energy conservation standards for dishwashers. DOE has determined that the amended energy conservation standards for these products would result in significant conservation of energy and are technologically feasible and economically justified.
The effective date of this rule is August 22, 2024. If adverse comment are received by August 12, 2024 and DOE determines that such comments may provide a reasonable basis for withdrawal of the direct final rule under 42 U.S.C. 6295(o), a timely withdrawal of this rule will be published in the
The docket for this rulemaking, which includes
The docket web page can be found at
For further information on how to submit a comment or review other public comments and the docket, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
The U.S. Department of Justice Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the standards contained in this direct final rule. Interested persons may contact the Antitrust Division at
Dr. Carl Shapiro, 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) 287-5649. Email:
Ms. Amelia Whiting, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (240) 306-7097. Email:
The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”),
Pursuant to EPCA, any new or amended energy conservation standard must, among other things, be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
In light of the above and under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this direct final rule amending energy conservation standards for dishwashers.
The adopted standards in this direct final rule were proposed in a letter submitted to DOE jointly by groups representing manufacturers, energy and environmental advocates, consumer groups, and a utility. This letter, titled “Energy Efficiency Agreement of 2023” (hereafter, the “Joint Agreement”
In accordance with the direct final rule provisions at 42 U.S.C. 6295(p)(4), DOE has determined that the recommendations contained in the Joint Agreement are compliant with 42 U.S.C. 6295(o). As required by 42 U.S.C. 6295(p)(4)(A)(i), DOE is also simultaneously publishing a notice of proposed rulemaking (“NOPR”) that contains identical standards to those adopted in this direct final rule. Consistent with the statute, DOE is providing a 110-day public comment period on the direct final rule. (42 U.S.C. 6295(p)(4)(B)) If DOE determines that any comments received provide a reasonable basis for withdrawal of the direct final rule under 42 U.S.C. 6295(o) or any other applicable law, DOE will publish the reasons for withdrawal and continue the rulemaking under the NOPR. (42 U.S.C. 6295(p)(4)(C))
The amended standards that DOE is adopting in this direct final rule are the efficiency levels recommended in the Joint Agreement (shown in Table I.1) expressed in terms of maximum estimated annual energy use (“EAEU”) in kilowatt hours per year (“kWh/yr”) and maximum per cycle water consumption in gallons per cycle (“gal/cycle”) as measured according to DOE's dishwasher test procedure codified at title 10 of the Code of Federal Regulations (“CFR”) part 430, subpart B, appendix C2 (“appendix C2”).
Table I.1 The amended standards recommended in the Joint Agreement are represented as trial standard level (“TSL”) 3 in this document (hereinafter the “Recommended TSL”) and are described in section V.A of this document. The Joint Agreement's standards for dishwashers apply to all products listed in Table I.1 and manufactured in, or imported into, the United States starting 3 years after publication of a final rule in the
Table I.2 summarizes DOE's evaluation of the economic impacts of the adopted standards on consumers of dishwashers, as measured by the average life-cycle cost (“LCC”) savings and the simple payback period (“PBP”).
DOE's analysis of the impacts of the adopted standards on consumers is described in section IV.F of this document.
The industry net present value (“INPV”) is the sum of the discounted cash flows to the industry from the base year through the end of the analysis period (2024-2056). Using a real discount rate of 8.5 percent, DOE estimates that the INPV for manufacturers of dishwashers in the case without amended standards is $735.8 million. Under the adopted standards, which align with the Recommended TSL for dishwashers, DOE estimates the change in INPV to range from -20.2 percent to -13.1 percent, which represents a change in INPV of approximately −$148.8 million to −$96.7 million. In order to bring products into compliance with amended standards, it is estimated that industry will incur total conversion costs of $126.9 million.
DOE's analysis of the impacts of the adopted standards on manufacturers is described in section IV.J and section V.B.2 of this document.
DOE's analyses indicate that the adopted energy conservation standards for dishwashers would save a significant amount of energy. Relative to the case without amended standards, the lifetime energy savings for dishwashers purchased in the 30-year period that begins in the anticipated year of compliance with the amended standards (2027-2056), amount to 0.31 quadrillion British thermal units (“Btu”), or quads.
The cumulative net present value (“NPV”) of total consumer benefits of the standards for dishwashers ranges from $1.23 billion (at a 7-percent discount rate) to $2.90 billion (at a 3-percent discount rate). This NPV expresses the estimated total value of future operating-cost savings minus the estimated increased product costs for dishwashers purchased during the period 2027-2056.
In addition,
DOE estimates the value of climate benefits from a reduction in greenhouse gases (“GHG”) using four different estimates of the social cost of CO
DOE estimated the monetary health benefits of SO
Table I.3 summarizes the monetized benefits and costs expected to result from the amended standards for dishwashers. There are other important unquantified effects, including certain unquantified climate benefits, unquantified public health benefits from the reduction of toxic air pollutants and other emissions, unquantified energy security benefits, and distributional effects, among others.
The benefits and costs of the adopted standards can also be expressed in terms of annualized values. The monetary values for the total annualized net benefits are (1) the reduced consumer operating costs, minus (2) the increase in product purchase prices and installation costs, plus (3) the value of climate and health benefits of emission reductions, all annualized.
The national operating cost savings are domestic private U.S. consumer monetary savings that occur as a result of purchasing the covered products and are measured for the lifetime of dishwashers shipped in 2027-2056. The benefits associated with reduced emissions achieved as a result of the adopted standards are also calculated based on the lifetime of dishwashers shipped in 2027-2056. Total benefits for both the 3-percent and 7-percent cases are presented using the average GHG social costs with 3-percent discount rate.
Table I.4 presents the total estimated monetized benefits and costs associated with the adopted standard, expressed in terms of annualized values. The results under the primary estimate are as follows.
Using a 7-percent discount rate for consumer benefits and costs and health benefits from reduced NO
Using a 3-percent discount rate for all benefits and costs, the estimated cost of the standards is $14.0 million per year in increased equipment costs, while the estimated annual benefits are $171.2 million in reduced operating costs, $29.0 million in climate benefits, and $50.8 million in health benefits. In this case, the net benefit would amount to $237.0 million per year.
DOE's analysis of the national impacts of the adopted standards is described in sections IV.J.3 and IV.L of this document.
DOE has determined that the Joint Agreement was submitted jointly by interested persons that are fairly representative of relevant points of view, in accordance with 42 U.S.C. 6295(p)(4)(A). After considering the recommended standards and weighing the benefits and burdens, DOE has determined that the recommended standards are in accordance with 42 U.S.C. 6295(o), which contains the criteria for prescribing new or amended standards. Specifically, the Secretary of Energy (“Secretary”) has determined that the adoption of the recommended standards would result in the significant conservation of energy and is the maximum improvement in energy efficiency that is technologically feasible and economically justified. In determining whether the recommended standards are economically justified, the Secretary has determined that the benefits of the recommended standards exceed the burdens. The Secretary has further concluded that the recommended standards, when considering the benefits of energy savings, positive NPV of consumer benefits, emission reductions, the estimated monetary value of the emissions reductions, and positive average LCC savings, would yield benefits that outweigh the negative impacts on some consumers and on manufacturers, including the conversion costs that could result in a reduction in INPV for manufacturers.
Using a 7-percent discount rate for consumer benefits and costs and NO
The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking.
As previously mentioned, the standards are projected to result in estimated national energy savings of 0.31 quads FFC, the equivalent of the primary annual energy use of 2.1 million homes. In addition, they are projected to reduce cumulative CO
In accordance with these and other statutory provisions discussed in this document, DOE analyzed the benefits and burdens of four TSLs for dishwashers. The TSLs and their associated benefits and burdens are discussed in detail in sections V.A through V.C of this document. As discussed in section V.C.1 of this document, DOE has tentatively
The following section briefly discusses the statutory authority underlying this direct final rule, as well as some of the relevant historical background related to the establishment of standards for dishwashers.
EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include dishwashers, the subject of this document. (42 U.S.C. 6292(a)(6)) EPCA prescribed energy conservation design standards for these products (42 U.S.C. 6295(g)(1) and (10)(A)), and directed DOE to conduct future rulemakings to determine whether to amend these standards. (42 U.S.C. 6295(g)(4) and (10)(B)) EPCA further provides that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1))
In establishing energy conservation standards with both energy and water use performance standards for dishwashers manufactured after 2010, Congress also directed DOE to “determin[e] whether to amend” those standards. 42 U.S.C. 6295(g)(10)(B). Congress's directive, in section 6295(g)(10)(B), to consider whether “to amend the standards for dishwashers” refers to “the standards” established in the immediately preceding section, 6295(g)(10)(A). There, Congress established energy conservation standards with
DOE similarly understands its obligation under 42 U.S.C. 6295(m) to amend “standards” for covered products to include amending both the energy and water use performance standards for dishwashers. Neither section 6295(g)(10)(B) nor section 6295(m) limit their application to “energy use standards.” Rather, they direct DOE to consider amending “the standards,” 42 U.S.C. 6295(g)(10)(B), or simply “standards,”
Finally, DOE is promulgating these standards as a direct final rule pursuant to section 42 U.S.C. 6295(p)(4). That section also extends broadly to any “energy or water conservation standard” without qualification. Thus, pursuant to section 6295(p)(4), DOE may, so long as the other relevant conditions are satisfied, promulgate a direct final rule that includes water use performance standards for a covered product like dishwashers, where Congress has already established energy and water use performance standards.
DOE is aware that the definition of “energy conservation standard,” in section 6291(6), expressly references water use only for four products specifically named: showerheads, faucets, water closets, and urinals.
The energy conservation program was initially limited to addressing the energy use, meaning electricity and fossil fuels, of 13 covered products (
Later, Congress further expanded the scope of the energy conservation program several times. For instance, Congress added products and energy conservation standards directly to 42 U.S.C. 6295, the section of EPCA that contains statutorily prescribed standards as well as DOE's standard-setting authorities.
Congress also expanded the scope of the energy conservation program by directly adding water use performance standards for certain products to 42 U.S.C. 6295. For example, in the Energy Policy Act of 2005, Congress added a water use performance standard (but no energy use performance standard) for commercial prerinse spray valves (“CPSVs”) and did so without updating the list of covered products in 42 U.S.C. 6292 to include CPSVs and without adding CPSVs to the list of enumerated products with water use performance standards in the “energy conservation standard” definition in 42 U.S.C. 6291(6). In the Energy Independence and Security Act of 2007 (“EISA 2007”), Congress amended 42 U.S.C. 6295 by prescribing energy conservation
In considering how to treat these products and standards that Congress has directly added to 42 U.S.C. 6295 without making conforming changes to the rest of the statute, including the list of covered products in 42 U.S.C. 6292, and the water-use products in the definition of an “energy conservation standard,” DOE construes the statute as a whole. When Congress added products and standards directly to 42 U.S.C. 6295 it must have meant those products to be covered products and those standards to be energy conservation standards, given that the purpose of 42 U.S.C. 6295 is to provide “energy conservation standards applicable to covered products” and to “authorize the Secretary to prescribe amended or new energy conservation standards for each type (or class) of covered product.” Elsewhere in EPCA, the statute's references to covered products and energy conservation standards can only be read coherently as including the covered products and energy conservation standards Congress added directly to section 6295, even if Congress did not make conforming edits to 6291 or 6292. For example, manufacturers are prohibited from “distribut[ing] in commerce any new
It would similarly defeat congressional intent for a manufacturer to be permitted to distribute a covered product,
DOE recognizes that some might argue that Congress's specific reference in section 6291(6) to water standards for showerheads, faucets, water closets, and urinals could “create a negative implication” that energy conservations standards for other covered products may not include water use standards.
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 the EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption in limited instances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (
Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6295(r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedures for dishwashers appear at title 10 of the CFR part 430, subpart B, appendix C1 (“appendix C1”) and appendix C2.
DOE must follow specific statutory criteria for prescribing new or amended standards for covered products, including dishwashers. Any new or amended standards for a covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3))
Moreover, DOE may not prescribe a standard if DOE determines by rule that the standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(B)) In deciding whether a proposed standard is
(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary considers relevant.
(42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii))
EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))
EPCA specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. A rule prescribing an energy conservation standard for a type (or class) of product must specify a different standard level for a type or class of products that has the same function or intended use if DOE determines that products within such group: A) consume a different kind of energy from that consumed by other covered products within such type (or class); or B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of such a feature and other factors DOE deems appropriate. (
Additionally, pursuant to the amendments contained in EISA 2007, final rules for new or amended energy conservation standards promulgated after July 1, 2010, are required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE's current test procedures and standards for dishwashers address standby mode and off mode energy use, as do the amended standards adopted in this direct final rule.
Finally, EISA 2007 amended EPCA, in relevant part, to grant DOE authority to issue a final rule (
The direct final rule must be published simultaneously with a NOPR that proposes an energy or water conservation standard that is identical to the standard established in the direct final rule, and DOE must provide a public comment period of at least 110 days on this proposal. (42 U.S.C. 6295(p)(4)(A)-(B)) While DOE typically provides a comment period of 60 days on proposed standards, for a NOPR accompanying a direct final rule, DOE provides a comment period of the same length as the comment period on the direct final rule—
DOE has previously explained its interpretation of its direct final rule authority. In a final rule amending the Department's “Procedures, Interpretations and Policies for Consideration of New or Revised Energy Conservation Standards for Consumer Products” at 10 CFR part 430, subpart C, appendix A, DOE noted that it may issue standards recommended by interested persons that are fairly representative of relative points of view as a direct final rule when the recommended standards are in accordance with 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. 86 FR 70892, 70912 (Dec. 13, 2021). But the direct final rule provision in EPCA does not impose additional requirements applicable to other standards rulemakings, which is consistent with the unique circumstances of rules issued through consensus agreements under DOE's direct final rule authority.
In a direct final rule published on May 30, 2012 (“May 2012 Direct Final Rule”), DOE adopted the current energy conservation standards for dishwashers manufactured on or after May 30, 2013, consistent with the levels proposed in a letter submitted to DOE by groups representing manufacturers, energy and environmental advocates, and consumer groups on July 30, 2010. 77 FR 31918, 31918-31919. This collective set of comments, titled “Agreement on Minimum Federal Efficiency Standards, Smart Appliances, Federal Incentives and Related Matters for Specified Appliances” (the “July 2010 Joint Petition”),
In a final determination published on December 13, 2016 (“December 2016 Final Determination”), DOE concluded that amended energy conservation standards would not be economically justified at any level above the standards established in the May 2012 Direct Final Rule, and therefore determined not to amend the standards. 81 FR 90072. The current energy and water conservation standards are set forth in DOE's regulations at 10 CFR part 430, § 430.32(f), and are repeated in Table II.1. The currently applicable DOE test procedure for dishwashers appears at appendix C1.
The regulatory text at 10 CFR 430.32(f) references the Association of Home Appliance Manufacturers (“AHAM”) standard AHAM DW-1-2020
On December 22, 2021, DOE published a test procedure NOPR (“December 2021 TP NOPR”) proposing amendments to the dishwasher test procedure at appendix C1 and a new test procedure at appendix C2. 86 FR 72738. On January 18, 2023, DOE published a final rule amending the test procedure at appendix C1 and establishing a new test procedure at appendix C2 (“January 2023 TP Final Rule”). 88 FR 3234. The new appendix C2 specifies updated annual cycles and low-power mode hours, both of which are used to calculate the EAEU metric, and introduces a minimum cleaning performance threshold to validate the selected test cycle. 88 FR 3234, 3236.
Subsequently, on July 27, 2023, DOE published a final rule adding clarifying instructions to the dishwasher test procedure at appendix C1 regarding the allowable dosing options for each type of detergent; clarifying the existing detergent reporting requirements; and adding an enforcement provision for dishwashers to specify the detergent and dosing method that DOE would use for any enforcement testing of dishwasher models certified in accordance with the applicable dishwasher test procedure prior to July 17, 2023 (
EPCA authorizes DOE to design test procedures that measure energy efficiency, energy use, water use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(3)) In general, a consumer-acceptable level of cleaning performance (
The January 2023 TP Final Rule established a new test procedure at appendix C2, which includes provisions for a minimum cleaning index threshold of 70 to validate the selected test cycle. 88 FR 3234, 3261. The cleaning index is calculated based on the number and size of particles remaining on each item of the test load at the completion of a dishwasher cycle as specified in AHAM DW-2-2020.
DOE adopted a minimum cleaning performance threshold in appendix C2 to determine if a dishwasher, when tested according to the DOE test procedure, “completely washes a normally soiled load of dishes,” so as to better represent consumer use of the product (
The standards enacted by this direct final rule are expressed in terms of the EAEU and water consumption metrics as measured according to the newly established test procedure contained in appendix C2.
On September 25, 2023, DOE received a joint statement (
A court decision issued after DOE received the Joint Agreement is also relevant to this rule. On March 17, 2022, various States filed a petition seeking review of a final rule revoking two final rules that established product classes for dishwashers with a cycle time for the normal cycle of 60 minutes or less, top-loading residential clothes washers and certain classes of consumer clothes dryers with a cycle time of less than 30 minutes, and front-loading residential clothes washers with a cycle time of less than 45 minutes (collectively, “short-cycle product classes”). The petitioners argued that the final rule revoking the short-cycle product classes violated EPCA and was arbitrary and capricious. On January 8, 2024, the United States Court of Appeals for the Fifth Circuit granted the petition for review and remanded the matter to DOE for further proceedings consistent with the Fifth Circuit's opinion.
On February 14, 2024, following the Fifth Circuit's decision in
The Joint Agreement recommends standard levels for dishwashers as presented in Table II.2. (Joint Agreement, No. 55 at p. 5) Details of the Joint Agreement recommendations for other products are provided in the Joint Agreement posted in the docket.
DOE notes that it was conducting a rulemaking to consider amending the standards for dishwashers when the Joint Agreement was submitted. As part of that process, on January 24, 2022, DOE published a notification of a webinar and availability of preliminary technical support document (“January 2022 Preliminary Analysis”). 87 FR 3450. Subsequently, on May 19, 2023, DOE published a NOPR and announced a public meeting (“May 2023 NOPR”) seeking comment on its proposed amended standard to inform its decision consistent with its obligations under EPCA and the Administrative Procedure Act (“APA”). 88 FR 32514. DOE held a public meeting on June 8, 2023, to discuss and receive comments on the NOPR and NOPR TSD. The NOPR TSD is available at:
Although DOE is adopting the Joint Agreement as a direct final rule and no longer proceeding with its own rulemaking, DOE did consider relevant comments, data, and information obtained during that rulemaking process in determining whether the recommended standards from the Joint Agreement are in accordance with 42 U.S.C. 6295(o). Any discussion of comments, data, or information in this direct final rule that were obtained during DOE's own prior rulemaking will include a parenthetical reference that provides the location of the item in the public record.
DOE is issuing this direct final rule after determining that the recommended standards submitted in the Joint Agreement meet the requirements in 42 U.S.C. 6295(p)(4). More specifically, DOE has determined that the recommended standards were submitted by interested parties that are fairly representative of relevant points of view and the recommended standards satisfy the criteria in 42 U.S.C. 6295(o).
On March 17, 2022, various States filed a petition seeking review of the final rule revoking two final rules that established the short-cycle product classes. The petitioners argued that the final rule revoking the short-cycle product classes violated EPCA and was arbitrary and capricious. On January 8, 2024, the United States Court of Appeals for the Fifth Circuit granted the petition for review and remanded the matter to DOE for further proceedings consistent with the Fifth Circuit's opinion.
Following the Fifth Circuit's decision, the signatories to the Joint Agreement submitted a second letter to DOE, which stated that Joint Recommendation did not “address” “short-cycle product classes.”
In a recently published request for information (“RFI”), DOE is commencing a rulemaking process on remand from the Fifth Circuit (the “Remand Proceeding”) by soliciting further information, relevant to the issues identified by the Fifth Circuit, regarding any short-cycle product classes. 89 FR 17338 (March 11, 2024). In that Remand Proceeding, DOE will conduct the analysis required by 42 U.S.C. 6295(q)(1)(B) to determine whether any short-cycle products have a “capacity or other performance-related feature [that] . . . justifies a higher or lower standard from that which applies (or will apply) to other products. . . .”
The current standards applicable to any products within the scope of that proceeding remain unchanged by this rule.
The Joint Agreement specifies the product classes for dishwashers: standard-size and compact-size. Although these product classes were not further divided by cycle time, DOE understands them to exclude standard-size dishwashers with an average cycle time of 60 minutes or less. As noted previously, any such “short-cycle” dishwashers will be considered in the Remand Proceeding; the current standards applicable to such “short-cycle” dishwashers are unchanged by this rule.
Under the direct final rule authority at 42 U.S.C. 6295(p)(4), DOE evaluates whether recommended standards are in accordance with criteria contained in 42 U.S.C. 6295(o). DOE does not have the authority to revise recommended standards submitted under the direct final rule provision in EPCA. Therefore, DOE did not analyze any additional product classes beyond those product classes included in the Joint Agreement.
DOE notes that the data and analysis used to support this direct final rule includes information for standard-size and compact-size dishwashers that is not distinguished by cycle time and is representative of all dishwashers currently on the market today. To the extent that any short-cycle products were included in this data and analysis, DOE believes the amount of such data is negligible.
This direct final rule covers those consumer products that meet the definition of “dishwasher” as codified at 10 CFR 430.2.
Dishwasher means a cabinet-like appliance which with the aid of water and detergent, washes, rinses, and dries (when a drying process is included) dishware, glassware, eating utensils, and most cooking utensils by chemical, mechanical and/or electrical means and discharges to the plumbing drainage system. 10 CFR 430.2.
Under the direct final rule provision in EPCA, recommended energy conservation standards must be submitted by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by DOE. (42 U.S.C. 6295(p)(4)(A)) With respect to this requirement, DOE notes that the Joint Agreement included a trade association, AHAM, which represents 16 manufacturers of dishwashers.
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. Sections 6(b)(3)(i) and 7(b)(1) of appendix A.
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. Section 7(b)(2) through (5) of appendix A. Section IV.B of this document discusses the results of the screening analysis for dishwashers, particularly the designs DOE considered, those it screened out, and those that are the basis for the standards considered in this rulemaking. For further details on the screening analysis for this rulemaking,
When DOE proposes to adopt a new or amended standard for a type or class of covered product, it must determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such product. (42 U.S.C. 6295(o)(2)(A)) Accordingly, in the engineering analysis, DOE determined the maximum technologically feasible (“max-tech”) improvements in energy efficiency for dishwashers, using the design parameters for the most efficient products available on the market or in working prototypes. The max-tech levels that DOE determined for this rulemaking are described in section IV.C.1.b of this document and in chapter 5 of the direct final rule TSD.
For each TSL, DOE projected energy savings from application of the TSL to dishwashers purchased in the 30-year period that begins in the year of compliance with the amended standards (2027-2056).
DOE used its national impact analysis (“NIA”) spreadsheet models to estimate national energy savings (“NES”) from potential amended standards for dishwashers. The NIA spreadsheet model (described in section IV.H of this document) calculates energy savings in terms of site energy, which is the energy directly consumed by products at the locations where they are used. For electricity, DOE reports national energy savings in terms of primary energy savings, which is the savings in the energy that is used to generate and transmit the site electricity. For natural gas, the primary energy savings are considered to be equal to the site energy savings. DOE also calculates NES in terms of full-fuel-cycle (“FFC”) energy savings. The FFC metric includes the energy consumed in extracting, processing, and transporting primary fuels (
To adopt any new or amended standards for a covered product, DOE must determine that such action would result in significant energy savings. (42 U.S.C. 6295(o)(3)(B))
The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking.
As stated, the standard levels adopted in this direct final rule are projected to result in national energy savings of 0.31 quads FFC, the equivalent of the primary annual energy use of 2.1 million homes. Based on the amount of FFC savings, the corresponding reduction in emissions, and the need to confront the global climate crisis, DOE has determined the energy savings from the standard levels adopted in this direct final rule are “significant” within the meaning of 42 U.S.C. 6295(o)(3)(B).
As noted previously, EPCA provides seven factors to be evaluated in determining whether a potential energy conservation standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII)) The following sections discuss how DOE has addressed each of those seven factors in this rulemaking.
In determining the impacts of potential new or amended standards on manufacturers, DOE conducts a manufacturing impact analysis (“MIA”), as discussed in section IV.J of this document. DOE first uses an annual cash-flow approach to determine the quantitative impacts. This step includes both a short-term assessment—based on the cost and capital requirements during the period between when a regulation is issued and when entities must comply with the regulation—and a long-term assessment over a 30-year period. The industry-wide impacts analyzed include (1) INPV, which values the industry on the basis of expected future cash flows; (2) cash flows by year; (3) changes in revenue and income; and (4) other measures of impact, as appropriate. Second, DOE analyzes and reports the impacts on different types of manufacturers, including impacts on small manufacturers. Third, DOE considers the impact of standards on domestic manufacturer employment and manufacturing capacity, as well as the potential for standards to result in plant closures and loss of capital investment. Finally, DOE takes into account cumulative impacts of various DOE regulations and other regulatory requirements on manufacturers.
For individual consumers, measures of economic impact include the changes in LCC and PBP associated with new or amended standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national net present value of the consumer costs and benefits expected to result from particular standards. DOE also evaluates the impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a standard.
EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product that are likely to result from a standard. (42 U.S.C. 6295(o)(2)(B)(i)(II)) DOE conducts this comparison in its LCC and PBP analysis.
The LCC is the sum of the purchase price of a product (including its installation) and the operating cost (including energy, maintenance, and repair expenditures) discounted over the lifetime of the product. The LCC analysis requires a variety of inputs, such as product prices, product energy consumption, energy prices, maintenance and repair costs, product lifetime, and discount rates appropriate for consumers. To account for uncertainty and variability in specific inputs, such as product lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value.
The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more-stringent standard by the change in annual operating cost for the year that standards are assumed to take effect.
For its LCC and PBP analysis, DOE assumes that consumers will purchase the covered products in the first year of compliance with new or amended standards. The LCC savings for the considered efficiency levels are calculated relative to the case that reflects projected market trends in the absence of new or amended standards. DOE's LCC and PBP analysis is discussed in further detail in section IV.F of this document.
Although significant conservation of energy is a separate statutory requirement for adopting an energy conservation standard, EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (42 U.S.C. 6295(o)(2)(B)(i)(III)) As discussed in section IV.H of this document, DOE uses the NIA spreadsheet models to project national energy savings.
In establishing product classes, and in evaluating design options and the impact of potential standard levels, DOE evaluates potential standards that would not lessen the utility or performance of the considered products. (42 U.S.C. 6295(o)(2)(B)(i)(IV)) Based on data available to DOE, the standards adopted in this document would not reduce the utility or performance of the dishwashers under consideration in this rulemaking.
EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from a standard. (42 U.S.C. 6295(o)(2)(B)(i)(V)) It also directs the Attorney General to determine the impact, if any, of any lessening of competition likely to result from a
DOE also considers the need for national energy and water conservation in determining whether a new or amended standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) The energy savings from the adopted standards are likely to provide improvements to the security and reliability of the Nation's energy system. Reductions in the demand for electricity also may result in reduced costs for maintaining the reliability of the Nation's electricity system. DOE conducts a utility impact analysis to estimate how standards may affect the Nation's needed power generation capacity, as discussed in section IV.M of this document.
DOE maintains that environmental and public health benefits associated with the more efficient use of energy are important to take into account when considering the need for national energy conservation. The adopted standards are likely to result in environmental benefits in the form of reduced emissions of air pollutants and GHGs associated with energy production and use. DOE conducts an emissions analysis to estimate how potential standards may affect these emissions, as discussed in section IV.K of this document; the estimated emissions impacts are reported in section V.B.6 of this document. DOE also estimates the economic value of emissions reductions resulting from the considered TSLs, as discussed in section IV.L of this document.
In determining whether an energy conservation standard is economically justified, DOE may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(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.”
As set forth in 42 U.S.C. 6295(o)(2)(B)(iii), EPCA creates a rebuttable presumption that an energy conservation standard is economically justified if the additional cost to the consumer of a product that meets the standard is less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable DOE test procedure. DOE's LCC and PBP analyses generate values used to calculate the effect potential amended energy conservation standards would have on the payback period for consumers. These analyses include, but are not limited to, the 3-year payback period contemplated under the rebuttable-presumption test. In addition, DOE routinely conducts an economic analysis that considers the full range of impacts to consumers, manufacturers, the Nation, and the environment, as required under 42 U.S.C. 6295(o)(2)(B)(i). The results of this analysis serve as the basis for DOE's evaluation of the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification). The rebuttable presumption payback calculation is discussed in section IV.F.9 of this document.
This section addresses the analyses DOE has performed for this rulemaking with regard to dishwashers. Separate subsections address each component of DOE's analyses, including relevant comments DOE received during its separate rulemaking to amend the energy conservation standards for dishwashers prior to receiving the Joint Agreement.
DOE used several analytical tools to estimate the impact of the standards considered in this document. The first tool is a spreadsheet that calculates the LCC savings and PBP of potential amended or new energy conservation standards. The national impacts analysis uses a second spreadsheet set that provides shipments projections and calculates national energy savings and net present value of total consumer costs and savings expected to result from potential energy conservation standards. DOE uses the third spreadsheet tool, the Government Regulatory Impact Model (“GRIM”), to assess manufacturer impacts of potential standards. These three spreadsheet tools are available on the DOE website for this rulemaking:
DOE develops information in the market and technology assessment that provides an overall picture of the market for the products concerned, including the purpose of the products, the industry structure, manufacturers, market characteristics, and technologies used in the products. This activity includes both quantitative and qualitative assessments, based primarily on publicly available information. The subjects addressed in the market and technology assessment for this rulemaking include (1) a determination of the scope of the rulemaking and product classes, (2) manufacturers and industry structure, (3) existing efficiency programs, (4) shipments information, (5) market and industry trends, and (6) technologies or design options that could improve the energy efficiency of dishwashers. The key findings of DOE's market assessment are summarized in the following sections.
The Joint Agreement specifies two product classes for dishwashers. (Joint Agreement, No. 55 at p. 8) In this direct final rule, DOE is adopting the product classes from the Joint Agreement, as follows:
(1) Standard-size dishwashers (≥8 place settings plus 6 serving pieces); and
(2) Compact-size dishwashers (<8 place settings plus 6 serving pieces).
Where the place settings are as specified in AHAM DW-1-2020 and the test load is as specified in section 2.4 of appendix C2.
DOE further notes that product classes established through EPCA's direct final rule authority are not subject to the criteria specified at 42 U.S.C. 6295(q)(1) for establishing product classes. Nevertheless, in accordance with 42 U.S.C. 6295(o)(4)—which is applicable to direct final rules—DOE has concluded that the standards adopted in this direct final rule will not result in the unavailability in any covered product type (or class) of performance characteristics, features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States
In this direct final rule, DOE considered 20 technology options, consistent with the table of technology options presented in the May 2023 NOPR. 88 FR 32514, 32527-32528. In general, technology options for dishwashers may reduce energy use alone, or reduce both energy and water use together. Most dishwashers in the United States use as their water source a hot water line that is typically tapped from the hot water line serving the adjacent kitchen faucet. Because the energy used to heat the water consumed by the dishwasher is included as part of the EAEU metric, technologies that decrease water use also inherently decrease energy use. Chapter 3 of the TSD for this direct final rule includes a detailed list and descriptions of all technology options identified for dishwashers, including a discussion of how each technology option reduces energy use only or both energy and water use together.
Among the technology options identified for dishwashers, the following reduce energy use only (
The following technology options reduce both energy and water use together (
In developing the list of technology options for this direct final rule, DOE considered comments it had received in response to the May 2023 NOPR. Samsung Electronics America, Inc. (“Samsung”) noted
DOE uses the following five screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:
(1)
(2)
(3)
(4)
(5)
10 CFR part 430, subpart C, appendix A, sections 6(b)(3) and 7(b).
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 subsequent sections of this document discuss DOE's evaluation of each technology option against the screening analysis criteria, and whether DOE determined that a technology option should be excluded (“screened out”) based on the screening criteria. The results of the screening analysis are discussed in greater detail in chapter 4 of the TSD for this direct final rule.
The following sections detail the technology options that were screened out for this direct final rule, and the reasons why they were eliminated.
Desiccant drying relies on a material such as zeolite
DOE has screened out desiccant drying from further consideration because it is a unique-pathway proprietary technology. Desiccant drying is a patented technology, and although multiple manufacturers hold patents for dishwasher designs with desiccant drying features, DOE is concerned that this technology option is not available for all manufacturers.
Reduced inlet-water temperature requires that dishwashers tap the cold water line for their water supply. Because most dishwashers in the United States tap the hot water line, this technology option would require significant alteration of existing dishwasher installations in order to
Supercritical carbon dioxide washing, which uses supercritical carbon dioxide instead of conventional detergent and water to wash dishes, is currently being researched. Given that this technology is in the research stage, DOE has determined that it would not be practicable to manufacture, install and service this technology on the scale necessary to serve the relevant market at the time of the effective date of an amended standard. Furthermore, because this technology is in the research stage, it is not yet possible to assess whether it would have any adverse impacts on equipment utility to consumers or equipment availability, or any adverse impacts on consumers' health or safety.
A dishwasher using ultrasonic waves to generate a cleaning mist was produced for the Japanese market in 2002; however, this model is no longer available on the market. Available information indicates that the use of a mist with ion generation instead of water with detergent would decrease cleaning performance, impacting consumer utility.
Ultrasonic dishwashing based upon soiled-dish immersion in a fluid that is then excited by ultrasonic waves has not been demonstrated. In an immersion-based ultrasonic dishwasher, standing ultrasonic waves within the washing cavity and the force of bubble cavitation implosion can damage fragile dishware. Because no manufacturers currently produce consumer ultrasonic dishwashers, it is impossible to assess whether this technology option would have any impacts on consumers' health or safety, or product availability.
Based on this information, DOE has screened out both identified product types that incorporate the ultrasonic washing technology option.
The thermoelectric heat pump system aims to extract waste heat from drain water and recover heat normally lost during the drying process, and apply it to the washing, rinsing, and drying phases, effectively saving energy. The technology is not commercially available yet as the technology is still in the research phase. Therefore, DOE has determined that it would not be practicable to manufacture, install and service this technology on the scale necessary to serve the relevant market at the time of the effective date of the amended standards. Furthermore, because this technology is in the research stage, it is not yet possible to assess whether it would have any adverse impacts on equipment utility to consumers or equipment availability, or any adverse impacts on consumers' health or safety.
This system saves water from the final rinse of a given dishwasher cycle for use in a subsequent dishwasher cycle. A water re-use system dishwasher also performs “drain out” and “clean out” cycles if the dishwasher is not operated for a certain period of time. Both “drain out” and “clean out” events consume additional water and energy during the subsequent cycle, even though such a system saves water and energy consumption overall.
DOE has screened out this technology option as it has determined that leaking and contamination from a water holding tank could potentially present negative health or safety impacts.
Through a review of each technology, DOE concludes that all of the other identified technologies listed in section IV.A.2 of this document met all five screening criteria to be examined further as design options in DOE's direct final rule analysis. In summary, DOE did not screen out the following technology options:
DOE 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 the remaining technology options meet the other screening criteria (
The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of dishwashers. There are two elements to consider in the engineering analysis; 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 (
For this analysis, DOE used a combination of the efficiency-level and design-option approach. This approach involved physically disassembling commercially available products, reviewing publicly available cost information, and modeling equipment cost. From this information, DOE estimated the manufacturer production costs (“MPCs”) for a range of products currently available on the market. DOE then considered the incremental steps manufacturers may take to reach higher efficiency levels. In its modeling, DOE started with the baseline MPC and added the expected design options at each higher efficiency level to estimate incremental MPCs. By doing this, the engineering analysis did not factor in the additional higher-cost features with no impact on efficiency that are included in some models. However, at efficiency levels where the product designs significantly deviated from the baseline product, DOE used the efficiency-level approach to determine an MPC estimate, while removing the costs associated with non-efficiency-related components or features. DOE also provides further discussion on the design options and efficiency improvements in chapter 5 of the direct final rule TSD.
For each dishwasher product class, DOE generally selects a baseline model as a reference point for each class, and measures changes resulting from potential energy conservation standards against the baseline. The baseline model in each dishwasher class represents the characteristics of a dishwasher typical of that class (
For dishwashers, DOE identified products available on the market rated at the current energy conservation standards levels for both standard-size and compact-size dishwasher product classes. Accordingly, DOE analyzed these products as baseline units. DOE uses the baseline unit for comparison in several phases of the direct final rule analyses, including the engineering analysis, LCC analysis, PBP analysis, and NIA. To determine energy and water savings that will result from an amended energy conservation standard, DOE compares energy and water consumption at each of the higher energy efficiency levels to the energy and water consumption of the baseline unit. Similarly, to determine the changes in price to the consumer that will result from an amended energy conservation standard, DOE compares the price of a unit at each higher efficiency level to the price of a unit at the baseline. Additional details on the selection of baseline units may be found in chapter 5 of the direct final rule TSD. In the May 2023 NOPR, DOE updated the baseline efficiency level for the compact-size dishwasher product class, when using appendix C2, from 178 kWh/year estimated in the January 2022 Preliminary Analysis to 191 kWh/year. 88 FR 32514, 32530. In the January 2022 Preliminary Analysis, DOE translated the current compact-size product class standard level of 222 kWh/year, which is based on appendix C1, to an EAEU based on appendix C2 using the baseline standby power use estimate of 2.3 watts from the December 2016 Final Determination (
DOE sought comment on the baseline efficiency levels analyzed in the May 2023 NOPR for each product class. 88 FR 32514, 32531. DOE did not receive any comments related to the selected baseline efficiency levels, including the updated baseline efficiency level for compact-size dishwashers in the May 2023 NOPR. DOE therefore used the baseline efficiency levels from the May 2023 NOPR in its analysis for this direct final rule.
Using the efficiency-level approach, the higher efficiency levels established for the analysis are determined based on the market distribution of existing products (in other words, based on the range of efficiencies and efficiency level “clusters” that already exist on the market). Using this approach, DOE identified four efficiency levels beyond the baseline for standard-size dishwashers and two for the compact-size product class. At each higher efficiency level, both energy use and water use decrease through the implementation of combinations of design options that individually either reduce energy use alone, or reduce both energy and water use together, as
In defining the higher efficiency levels for this direct final rule, DOE considered comments it had received in response to the higher efficiency levels proposed in the May 2023 NOPR.
Table IV.2 and Table IV.3 show the efficiency levels DOE evaluated for standard-size and compact-size dishwashers in the May 2023 NOPR. 88 FR 32514, 32534-32535.
For standard-size dishwashers, EL 1 corresponded to the ENERGY STAR Version 6.0
For the reasons discussed, DOE analyzed for this direct final rule the efficiency levels for standard-size and compact-size dishwashers that were proposed in the May 2023 NOPR, as reproduced in Table IV.4 and Table IV.5, respectively.
DOE notes that the compact-size max-tech unit that was analyzed in the May 2023 NOPR was not included in DOE's Compliance Certification Database (“CCD”) as of September 2023. Models that are discontinued over the course of a DOE rulemaking timeline remain applicable in conducting the analysis in accordance with EPCA requirements because such models incorporate technologically feasible design options that manufacturers may use to achieve the corresponding efficiency levels in commercial products. The CCD included models that exceed the efficiency of the max-tech unit analyzed in the May 2023 NOPR; however, for these units, there is a discrepancy between the rated EAEU in DOE's CCD and the EAEU listed on the model's EnergyGuide label,
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 product, the availability and timeliness of purchasing the dishwasher on the market. The cost approaches are summarized as follows:
• Physical teardowns: Under this approach, DOE physically dismantles a commercially available product, component-by-component, to develop a detailed bill of materials for the product.
• Catalog teardowns: In lieu of physically deconstructing a product, DOE identifies each component using parts diagrams (available from manufacturer websites or appliance repair websites, for example) to develop the bill of materials for the product.
• Price surveys: If neither a physical nor catalog teardown is feasible (for example, for tightly integrated products such as fluorescent lamps, which are infeasible to disassemble and for which parts diagrams are unavailable) or cost-prohibitive and otherwise impractical (
In this direct final rule, DOE conducted the analysis using the physical teardown approach. For each product class, DOE tore down a representative sample of models spanning the entire range of efficiency levels, as well as multiple manufacturers within each product class. DOE aggregated the results so that the cost-efficiency relationship developed for each product class reflects DOE's assessment of a market-representative “path” to achieve each higher efficiency level. The resulting bill of materials provides the basis for the MPC estimates.
To account for manufacturers' profit margin, DOE applies a 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. DOE developed an average manufacturer markup by examining the annual Securities and Exchange Commission (“SEC”) 10-K reports filed by publicly traded manufacturers primarily engaged in appliance manufacturing and whose combined product range includes dishwashers.
To develop the incremental MPCs associated with improving product efficiency for each product class, DOE started with the baseline unit cost model and added the expected changes associated with improving efficiency at each higher efficiency level. By doing this, DOE excluded the costs of any non-efficiency related components from the more efficient units.
Table IV.6 shows the baseline MPCs for standard-size and compact-size dishwashers estimated for the May 2023 NOPR. 88 FR 32514, 32536. Table IV.7 and Table IV.8 show the incremental
For this direct final rule, DOE updated the underlying raw material and component prices used in its cost model to reflect raw material and component prices as of March 2023. Table IV.9 presents the baseline MPCs for each product class as determined for this final rule, in 2023 dollars. Table IV.10 and Table IV.11 provide the incremental MPCs for each efficiency level for both product classes as determined for this final rule.
The detailed description of DOE's determination of costs for baseline and higher efficiency levels is provided in chapter 5 of the direct final rule TSD.
The markups analysis develops appropriate markups (
DOE considered two distribution channels through which dishwashers move from manufacturers to consumers. The majority of dishwasher sales go through the direct retailer channel, in which manufacturers sell the products directly to retailers, who then sell to consumers. This direct retailer channel accounts for 85 percent of the dishwasher market. The rest of the market goes through a separate distribution channel, in which manufacturers sell the products to wholesalers, who in turn sell the products to general contractors, then to consumers. The main parties in the post-manufacturer distribution channels are retailers, wholesalers, and general contractors.
DOE developed baseline and incremental markups for each actor in the distribution chain. Baseline markups are applied to the price of products with baseline efficiency, while incremental markups are applied to the difference in price between baseline and higher-efficiency models (the incremental cost increase). The incremental markup is typically less than the baseline markup and is designed to maintain similar per-unit operating profit before and after new or amended standards.
DOE relied on economic data from the U.S. Census Bureau to estimate average baseline and incremental markups. Specifically, DOE used the 2017 Annual Retail Trade Survey for the “electronics and appliance stores” sector to develop retailer markups.
For this direct final rule, DOE considered comments it had received regarding the markups analysis conducted for the May 2023 NOPR. The approach for determining markups in this direct final rule was the same approach DOE had used for the May 2023 NOPR analysis.
In response to the March 2023 NOPR, AHAM commented
DOE's incremental markup approach assumes that an increase in operating profits, which is implied by keeping a fixed average markup when the product price goes up, is unlikely to be viable over time in a reasonably competitive market like household appliance retailers. The Herfindahl-Hirschman Index reported by the 2017 Economic Census indicates that the household appliance stores sector (NAICS 443141) is a competitive marketplace.
DOE acknowledges that markup practices in response to amended standards are complex and varying with business conditions. However, DOE's analysis necessarily only considers changes in appliance offerings that occur in response to amended standards and isolates the effect of amended standards from other factors. DOE agrees that empirical data on markup practices would be desirable, but such information is closely held and difficult to obtain. Consequently, DOE relies to economic theory as the foundation for developing the markup analysis. Hence, DOE continues to maintain that its assumption that standards do not facilitate a sustainable increase in profitability is reasonable.
The comments submitted by AHAM during the 2015 NOPR contain quotes from their interviews with retailers, but do not provide the details and the interview questions used by their consultant based on data confidentiality reasons. However, without knowing what questions were posed to the contractors and retailers, it is challenging for DOE to evaluate the applicability of those quotes. As noted, DOE's analysis necessarily considers a situation in which nothing changes except for those changes in appliance offerings that occur in response to amended standards, and this needs to be addressed clearly in the framing of the questions.
Chapter 6 of the direct final rule TSD provides details on DOE's development of markups for dishwashers.
The purpose of the energy and water use analysis is to determine the annual energy and water consumption of dishwashers at different efficiencies in representative U.S. single-family homes, and multi-family residences, and to assess the energy and water savings potential of increased dishwasher efficiency. In order to determine representative life-cycle costs (as discussed in IV.F), both annual energy and water consumption are considered at each efficiency level because the technologies to improve energy efficiency may also reduce water usage (as discussed in IV.C.1.b). The energy and water use analysis estimates the range of energy and water use of dishwashers in the field (
For this direct final rule, DOE considered comments it had received regarding the energy and water use analysis conducted for the May 2023 NOPR. The approach used to estimate the energy and water consumption for this direct final rule is largely the same as the approach DOE had used for the May 2023 NOPR analysis.
In the May 2023 NOPR, DOE determined the average annual energy and water consumption of dishwashers by multiplying the per-cycle energy and water consumption by the number of cycles per year. 88 FR 32514, 32537. DOE used the EIA's 2020
In response to the May 2023 NOPR, Alliance for Water Efficiency (“AWE”) recommended
DOE has reviewed the
AHAM commented that DOE eliminated the numerical threshold for the significant conservation of energy savings determination that was in the prior Process Rule, reverting to its earlier approach of determining whether energy savings are significant on a case-by-case basis. AHAM noted that the amended standards for dishwasher would result in 0.31 quads, but DOE could achieve far greater savings through other means such as public education. AHAM stated that on a monthly basis, savings are so minuscule as to render them meaningless relative to the potential increase in up-front purchase costs, particularly for dishwashers on the lower end of the price scale. AHAM recommended that DOE use median savings as a way to partially overcome the bias in the RECS data where a few outlier high usage RECS data points distort the results. (AHAM, No. 51 at p. 6) AHAM stated using the median LCC savings, the savings are approximately $0.72 cents per year, which is an amount so small as not to even be noticed by consumers on their monthly balance sheets. (
As described in section IV.E of this document, DOE's energy and water use analysis for this direct final rule is derived based on
The California Inventor-Owned Utilities (“CA IOUs”)
DOE updates its analyses with the most current, nationally representative data. As pointed out by the CA IOU, the 2007 Proctor & Gamble study did not specify if the dishwashers of the participants had the option to turn off heated dry, or if the heated dry option was by default on or off, and it was unclear how the consumer samples were selected. DOE is unaware of any nationally representative consumer data showing consumer selection of drying options. Conducting a survey as suggested is not viable within the context of this rulemaking, but DOE may consider doing so for a future rulemaking. The calculation of EAEU at 10 CFR 430.23 assumes dishwashers with the power dry feature use it 50 percent of the time. In the absence of any other nationally representative data set, DOE is using the same assumption in this direct final rule analysis. DOE did not include drying option selections in this direct final rule analysis, but may consider other assumptions regarding use of drying features in future dishwasher test procedure rulemakings.
AWE commented that DOE should more thoroughly consider and evaluate the energy embedded in the water that will be saved from the proposed standard, in addition to end-user energy use. (AWE, No. 44 at p. 4) AWE has developed a water conservation tracking tool for evaluating the water savings, costs, and benefits of urban water conservation programs and for projecting future water demands. (
DOE has previously determined that EPCA does not direct DOE to consider the energy used for utility water treatment and delivery. In a May 2012 Final Rule on Residential Clothes Washers, DOE noted that EPCA directs DOE to consider “the total projected amount of energy, or as applicable, water, savings likely to result directly from the imposition of the standard.” 77 FR 32308, 32346 (quoting 42 U.S.C. 6295(o)(2)(B)(i)(III)). In the May 2012 Final Rule on Residential Clothes Washers, DOE interpreted “directly from the imposition of the standard” to include energy used in the generation, transmission, and distribution of fuels used by appliances. Unlike the energy used for water treatment and delivery, primary energy savings and the full-fuel-cycle measure are in a distribution chain that is directly linked to the energy used by appliances. (
Chapter 7 of the direct final rule TSD provides details on DOE's energy and water use analysis for dishwashers.
DOE conducted LCC and PBP analyses to evaluate the economic impacts on individual consumers of potential energy conservation standards for dishwashers. Because the technologies to improve energy efficiency may also reduce water usage (as discussed in IV.C.1.b), the economic impacts in the LCC and PBP include both energy consumption and water consumption. 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 and water use, maintenance, and repair). To compute the operating costs, DOE discounts future operating costs to the time of purchase and sums them over the lifetime of the product.
• The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost at higher efficiency levels by the change in annual operating cost for the year that amended or new standards are assumed to take effect.
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 dishwashers 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 product class, DOE calculated the LCC and PBP for a nationally representative set of housing units. As stated previously, DOE developed household samples from the
Inputs to the calculation of total installed cost include the cost of the product—which includes MPCs, manufacturer markups, retailer and distributor markups, and sales taxes—and installation costs. Inputs to the calculation of operating expenses include annual energy and water consumption, energy and water prices and price projections, repair and maintenance costs, product lifetimes, and discount rates. DOE created distributions of values for product 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 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 dishwasher user samples. For this rulemaking, the Monte Carlo approach is implemented in MS Excel together with the Crystal Ball
DOE calculated the LCC and PBP for consumers of dishwashers as if each were to purchase a new product in the first year of required compliance with amended standards. Amended standards apply to dishwashers manufactured 3 years after the date on which any new or amended standard is published. (42 U.S.C. 6295(m)(4)(B)) Therefore, DOE used 2027 as the first year of compliance with any amended standards for dishwashers.
Table IV.12 summarizes the approach and data DOE used to derive inputs to the LCC and PBP calculations. The subsections that follow provide further discussion. Details of the spreadsheet model, and of all the inputs to the LCC and PBP analyses, are contained in chapter 8 of the direct final rule TSD and its appendices.
For this direct final rule, DOE considered comments it had received regarding the LCC analysis conducted for the May 2023 NOPR. The LCC approach used for this direct final rule is largely the same as the approach DOE had used for the May 2023 NOPR analysis.
In response to the May 2023 NOPR, AHAM commented that DOE should focus on conducting a purchase decision analysis instead of relying on outcomes and long-term cost analyses. (AHAM, No. 51 at p. 18) AHAM commented that the logical basis for regulation lies in identifying consumer and systemic market failures, where consumer failure refers to making “incorrect” decisions due to a lack of information. (
The LCC analysis currently relies on market data on the distribution of efficiency of products to assign products with varying efficiency performance to each household when compliance with the standard becomes required. This approach is intended to simulate the range of individual outcomes resulting from the hypothetical setting of a revised energy conservation standard at various levels of efficiency when the data needed to develop a product-specific consumer choice model are currently unavailable. This is a methodological decision made by DOE after considering the existence of various systematic market failures (
AHAM stated that there have been changes in DOE's analysis for standard-size dishwashers between the January 2022 Preliminary Analysis and the May 2023 NOPR including the percentage of consumers experiencing a net cost decreased from 43 percent to 3 percent and the payback period decreased from 7 to 2.4 years and it is unclear how DOE arrived at the new conclusions that have a significant impact on overall energy savings estimates and economic analysis. (AHAM, No. 51 at p. 26) Whirlpool Corporation (“Whirlpool”) questioned
DOE updates its analytical inputs with the most recent available data sources, in response to stakeholder comment, and based on information obtained through testing, teardowns, manufacturer interviews, and any additional research and analysis. Input updates include MPCs, energy and water prices and price trends, dollar year, price learning trends, product efficiency distributions, discount rate, sales tax, and shipments. For this final rule, the LCC inputs are summarized in Table IV.12. Because of those input changes, the LCC results were changed in the May 2023 NOPR analysis, and again in the direct final rule analysis compared to those from the January 2022 Preliminary Analysis. In this case, the primary driver of the decrease in percent of consumers with a net cost is based on a change in MPC between the January 2022 Preliminary Analysis and the May 2023 NOPR, driven by DOE's updated engineering analysis. Specifically, based on manufacturer feedback, DOE revisited its teardown analysis and observed that the same technology options exist at both EL 1 and EL 2, with EL 2 units having improved control started and design tolerances. For these reasons, the MPC at EL 2 is the same as that at EL 1, which decreases the percent of consumers with a net cost at EL 2. DOE notes that AHAM (of which Whirlpool is a member) supported the Recommended TSL, which includes the same EL as the standards proposed in the May 2023 NOPR for standard-size dishwashers.
To calculate consumer product 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 products and higher-efficiency products because DOE applies an incremental markup to the increase in MSP associated with higher-efficiency products.
Economic literature and historical data suggest that the real costs of many products may trend downward over time according to “learning” or “experience” curves. An experience curve analysis implicitly includes factors such as efficiencies in labor, capital investment, automation, materials prices, distribution, and economies of scale at an industry-wide level. To derive the learning rate parameter for dishwashers, DOE obtained historical Producer Price Index (“PPI”) data for appliances from the Bureau of Labor Statistics (“BLS”). A PPI for “all-other-miscellaneous-household-appliances” was available for the time period between 1988 and 2014.
For this direct final rule, DOE considered comments it had received regarding the methodology for calculating consumer product costs that was presented in the May 2023 NOPR. The approach used for this direct final rule is largely the same as the approach DOE had used for the May 2023 NOPR analysis.
In response to the May 2023 NOPR, Northwest Energy Efficiency Alliance (“NEEA”) encouraged
DOE did not consider a specific price learning curve for variable-speed drives due to the lack of data regarding the data regarding the relevant market share of products. DOE will consider all available technology options and their related learning curves when conducting future dishwasher standards analyses for standards rulemakings.
AHAM commented that DOE's application of a “learning or experience curve” to reduce expected extra manufacturing costs required to meet proposed standard levels lacks a solid theoretical foundation for why an experience or learning curve should exist, what functional form it should take and whether it should be a continuous function. (AHAM, No. 51 at p. 19) AHAM commented that the approach, based solely on empirical relationships, demands clear alignment with the actual products in question and the data used to develop the relationship. AHAM stated that when the data takes a new shape, DOE must adjust its equations to reflect that change as continuing to use old data and equations simply to create a longer time series is not acceptable. (
DOE notes that there is considerable empirical evidence of consistent price declines for appliances in the past few decades. Several studies examined retail prices of various household appliances, including dishwashers, during different periods of time and showed that prices had been steadily falling while efficiency had been increasing, for example Dale,
Installation cost includes labor, overhead, and any miscellaneous materials and parts needed to install the product. Based on inputs provided by manufacturers, DOE concluded that installation costs would not be impacted by increased efficiency levels. DOE received no stakeholder comments on this issue.
For each sampled household, DOE determined the energy and water consumption for dishwashers at different efficiency levels using the approach described previously in section IV.E of this document. Both energy and water consumption are considered in the LCC analysis because the technologies to improve energy efficiency may also reduce water usage (as discussed in section IV.C.1.b of this document).
Because marginal electricity price more accurately captures the incremental savings associated with a change in energy use from higher efficiency, it provides a better representation of incremental change in consumer costs than average electricity prices. Therefore, DOE applied average electricity prices for the energy use of the product 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 2022 using data from EEI Typical Bills and Average Rates reports. Based upon comprehensive, industry-wide surveys, this semi-annual report presents typical monthly electric bills and average kilowatt-hour costs to the customer as charged by investor-owned utilities. For the residential sector, DOE calculated electricity prices using the methodology described in Coughlin and Beraki (2018).
To estimate energy prices in future years, DOE multiplied the 2020 energy prices by the projection of annual average price changes for each of the nine Census Divisions from the Reference case in
DOE's methodology allows electricity prices to vary by sector, region, and season. In the analysis, variability in electricity prices is chosen to be consistent with the way the consumer economic and energy use characteristics are defined in the LCC analysis.
DOE obtained data for calculating regional prices of natural gas from the EIA publication,
DOE assigned average prices to each household in the LCC sample based on its location and its baseline electricity and gas consumption. For sampled households who were assigned a product efficiency greater than or equal to the considered level for a standard in the no-new-standards case, DOE assigned marginal prices to each household based on its location and the decremented electricity and gas consumption. In the LCC sample, households could be assigned to one of nine Census Divisions.
To estimate energy prices in future years, DOE multiplied the 2022 energy prices by the projection of annual average price changes for each of the nine Census Divisions from the Reference case in
DOE obtained residential water and wastewater price data from the Water
The samples that DOE obtained of the water and wastewater utilities is too small to calculate regional public sector prices for all U.S. Census Divisions. Therefore, DOE calculated regional costs for water and wastewater service at the Census Region level (Northeast, South, Midwest, and West) by weighting each State in a region by its population.
For this direct final rule analysis, DOE has updated its methodology for developing water prices for consumers who rely on a private well-water system, instead of the public supply system in consideration of stakeholder comments. DOE primarily considered well maintenance costs and pump operating costs when developing the average water price. Conversely, DOE only considered pump operating costs when developing the marginal price for well users. As a result, the estimated average and marginal water prices for well users are $1.24 and $0.39 per thousand gallons, respectively. For septic tank users, DOE considered only the septic tank maintenance cost when determining the average price and excluded the marginal cost component, as any marginal costs are likely to be negligible. DOE is unable to develop Census-region-level well-water and septic tank prices due to the limitation of available data; consequently, the same values were used for each Census Region.
To determine the current percentage of the U.S. population served by private wells and septic tanks, DOE used historical American Housing Survey (“AHS”) data from 1970 to 2021 to develop a projection for 2027, the effective year of potential new standards for dishwashers.
DOE then conducted random simulations to determine the percentage of households in rural areas served by private wells and septic tanks. Based on the estimated percentages, well-water prices and septic tank prices were assigned to sampled households accordingly. Furthermore, DOE estimated the septic tank user population and assigned corresponding septic tank prices to households relying on public water systems.
To estimate the future trend for public water and wastewater prices, DOE used data on the historic trend in the national water price index (U.S. city average) from 1988 through 2022 provided by the Labor Department's BLS.
To estimate the future trend for the average well-water and septic tank prices, DOE used data on the historic trend in the overall national consumer price index from 1988 through 2022 provided by the Labor Department's BLS.
In response to the May 2023 NOPR, AHAM commented that it previously suggested DOE should consider the actual water costs for households on well systems. (AHAM, No. 51 at p. 12)
AHAM commented that DOE's May 2023 NOPR approach to septic system costs is incorrect and stated that DOE should acknowledge that there are no incremental costs for consumers using septic systems and treat these both well water users and septic tank users as a separate subgroup instead of averaging them into composite water and sewer costs. (AHAM, No. 51 at pp. 12-14)
As described in section IV.I.3 of this document, for this direct final rule, DOE updated its method for estimating well-water and septic costs. The updated average well-water and septic tank prices are 17.1 percent of the combined cost of public water and sewer costs. In addition, DOE assigned either septic tank or public sewer prices to well-water households based on the probability distributions obtained from the AHS 2021 data.
AHAM commented that the economic value of water is undefined and an inappropriate measure in the life cycle cost analysis. AHAM stated that if DOE is relying, even implicitly, on the AWWA/RFC study for its definition of economic value, as matter of administrative law, it must make the underlying reference available for public comment before it can use it as a source. According to AHAM, private well users pay the actual marginal cost of water, primarily the electricity for pumping, not an “economic value.” While there are embedded costs for drilling a well, these costs are sunk and the marginal cost is only the electricity. (AHAM, No. 51, at p. 13) AHAM suggested that if DOE insists on the “economic value,” DOE should define it, demonstrate how well-water use reduces water availability, and quantify the actual “economic value” of lost well water. (
DOE concurs that “economic value of water” is not the actual price that well users would pay. Hence, for this direct final rule, DOE has adjusted its methodology regarding water price for well users and septic tank price. To derive well-water price, DOE conducted a literature review and took into consideration the inputs provided by AHAM. As a result, DOE estimated the average water price for well users to be $1.24 per thousand gallons, with a marginal price of $0.39 per thousand gallons representing the electricity cost for pumping. Regarding septic tank price, DOE estimated the average cost to be $1.30 per thousand gallons and excluded the marginal cost component, as it may be negligible or close to $0 per thousand gallons. For references and details of the well-water and septic tank prices,
AWE commented that DOE should extrapolate from the annualized rate increases for 1998 to 2020 from the AWWA/Raftelis Water and Wastewater Rate Survey. (AWE, No. 44 at p. 1) AWE stated that instead of using AWWA/Raftelis for historic and current pricing and a CPI-based approach for future price trends, AWE supports the use of data from the AWWA/Raftelis Survey as the basis for DOE's calculation for both the historic and current water and wastewater prices and for price trends. (
AWWA/Raftelis conducts water and wastewater rates survey, which used to be every two years and now every six months, for U.S. water and wastewater utilities. For each of the AWWA/Raftelis surveys, utilities in the sample respond voluntarily to the survey questions, with a limited number of overlapping utilities in each survey year. For this reason, it is possible that the annual change in rates may be affected by which utilities respond to the survey, which is also known as sample bias. In addition, the rate data are reported in usage tiers set by each utility and not on actual household water consumption.
The BLS Water and Sewer CPI sample represents 600 to 700 quotes for water or sewer service, and the sample is consistent for four years, which reduces the possible year over year bias as compared to AWWA/Raftelis. Additionally, the Water and Sewer CPI was estimated based on consumer water bills that reflect household water consumption. Therefore, DOE concludes that the BLS' CPI water and sewer data better reflect the nationally representative price trends than the AWWA/Raftelis data. DOE therefore used the CPI for water and sewer for its public utilities' water and wastewater price trend forecast for this final rule.
DOE used a similar methodology to develop future water and wastewater prices in its clothes washer standard rulemaking as it used in the March 2024 final rule analysis. DOE used a constant value derived from the average values from 2046 through 2050 to estimate the price trend after 2050, whereas in the May 2023 NOPR, published May 19, 2023 (88 FR 32514), DOE used the 2050 value for the price trend after 2050.
AHAM stated DOE should recognize that not all households directly pay for water and sewer. (AHAM, No. 51 at p. 16) As such, AHAM asserted that DOE is overestimating the actual annual operating cost savings that these consumers would receive from reduced water use in dishwashers. (
AHAM identified two subgroups of consumers who might not see monetary savings from a reduction in water use as a result of an amended standard: (1) condominium owners in multi-family buildings where water and sewer costs are included in common charges and (2) low-income renters in multi-family housing where water is not sub-metered and/or costs are covered by landlords. (AHAM, No. 51 at p. 16) As it applies to multi-family housing, AHAM stated that installing sub-metering equipment may cost thousands of dollars per unit including plumbing charges and many landlords do not find it attractive or practical to sub-meter. (
DOE notes that while RECS does identify multi-family housing, it does not provide information on whether a household's water bill is included in the rent, included in the common charges, or paid directly to the utility. For the first group of multi-family unit owners (such as apartments, condominiums, and co-ops) identified in RECS and reporting that energy bills are not paid directly to the utilities, DOE posits that those households also do not directly pay their water bills, considering that some multi-family units may have a shared water meters, which is more common than shared electricity or gas meters. It is, therefore, likely that households that do not directly pay their energy bills to the utilities, also do not directly pay for their water bill. This group represents less than 1.2 percent of the national sample, indicating a relatively small group. For the second group of low-income renters in multi-family buildings, DOE adopted a conservative approach assuming that those households that reported as not paying their energy bill would also not pay their water bill and, therefore, do not accrue any operating cost savings from the considered standards. This issue is accounted for in the low-income subgroup analysis. Based on DOE's assessment, the low-income subgroup has comparable LCC savings and fraction of consumers experiencing a net cost as the national sample.
With regards to the split-incentive issue, the existence of a split incentive across a substantial number of U.S. households, in which a tenant pays for the cost of electricity while the landlord furnishes appliances, has been identified through a number of studies of residential appliance use broadly, and for dishwashers in low-income settings in specific. Building from early work including Jaffe and Stavins (1994),
As in the case when some consumers may delay or forgo their purchase due to the increased first cost caused by the standards, DOE assumed that those consumers would hand wash their dishes and accounted for the possible increase in energy and water use as an additional cost to the standards case in the National Impact Analysis. DOE considered this as a conservative approach since there are alternatives to handwashing dishes such as extended repair, or purchasing a second-hand unit.
Repair costs are associated with repairing or replacing product components that have failed in an appliance; maintenance costs are associated with maintaining the operation of the product. Typically, small incremental increases in product efficiency entail no, or only minor, changes in repair and maintenance costs compared to baseline efficiency products. However, products having significantly higher efficiencies compared to baseline products are more likely to incur higher repair and maintenance costs, because their increased complexity and higher part count typically increases the cumulative probability of failure.
In this direct final rule analysis, DOE derived repair costs for dishwashers for each efficiency level based on manufacturers' inputs on the repair frequency and costs. DOE did not include routine maintenance costs as no evidence or data shows that the routine maintenance costs or frequency would vary with increased efficiency.
For dishwashers, DOE developed a distribution of lifetimes from which specific values are assigned to the appliances in the samples. DOE conducted an analysis of actual lifetime in the field using a combination of historical shipments data, the stock of the considered appliances in the
In the calculation of LCC, DOE applies discount rates appropriate to households to estimate the present value of future operating cost savings. DOE estimated a distribution of discount rates for dishwashers based on the opportunity cost of consumer funds.
DOE applies weighted average discount rates calculated from consumer debt and asset data, rather than marginal or implicit discount rates.
To establish residential discount rates for the LCC analysis, DOE identified all relevant household debt or asset classes in order to approximate a consumer's opportunity cost of funds related to appliance energy cost savings. It estimated the average percentage shares of the various types of debt and equity by household income group using data from the Federal Reserve Board's triennial Survey of Consumer Finances
To accurately estimate the share of consumers that would be affected by a potential energy conservation standard at a particular efficiency level, DOE's LCC analysis considered the projected distribution (market shares) of product efficiencies under the no-new-standards case (
To estimate the energy efficiency distribution of dishwashers for 2027, DOE used data from the engineering analysis, the manufacturer interviews, and DOE's Compliance Certification Database. DOE assumed no annual efficiency improvement for the no-new-standards case based on the current market evaluation and the observation that there was no shift in efficiency distributions compared to those used in the December 2016 Final Determination. DOE received no comments from stakeholders related to this assumption. The estimated market shares for the no-new-standards case for dishwashers are shown in Table IV.13.
In response to the May 2023 NOPR, Appliance Standards Awareness Project
The LCC Monte Carlo simulations draw from the efficiency distributions and randomly assign an efficiency level to the dishwasher purchased by each sample household in the no-new-standards case. The resulting percentage shares within the sample match the market shares in the efficiency distributions.
In response to the May 2023 NOPR, ASAP
ASAP
ASAP
While DOE acknowledges that economic factors play a role when consumers decide on what type of dishwasher to install, assignment of dishwasher efficiency for a given installation, based solely on economic measures such as life-cycle cost or simple payback period, most likely would not accurately reflect actual real-world installations. There are a number of market failures discussed in the economics literature that illustrate how purchasing decisions with respect to energy efficiency are unlikely to be perfectly correlated with energy use, as described below. DOE finds that the method of assignment, which is in part random, simulates behavior in the dishwasher market, where market failures result in purchasing decisions not being perfectly aligned with economic interests. DOE further emphasizes that its approach does not assume that all purchasers of dishwasher products make economically irrational decisions (
The following discussion provides more detail about the various market failures that affect dishwasher purchases. First, consumers are motivated by more than simple financial trade-offs. There are consumers who are willing to pay a premium for more
In addition to the split-incentive problem, there are other market failures that are likely to affect the choice of dishwasher efficiency made by consumers. For example, unplanned replacements due to unexpected failure of equipment such as dishwashers are strongly biased toward like-for-like replacement (
Additionally, Davis and Metcalf
In part because of the way information is presented, and in part because of the way consumers process information, there is also a market failure consisting of a systematic bias in the perception of equipment energy usage, which can affect consumer choices. Attari
These market failures affect a sizeable share of the consumer population. A study by Houde
The existence of market failures in the residential sector is well supported by the economics literature and by a number of case studies. If DOE developed an efficiency distribution that assigned dishwasher efficiency in the no-new-standards case solely according to energy and water use or economic considerations, such as life-cycle cost or payback period, the resulting distribution of efficiencies within the consumer sample would not reflect any of the market failures or behavioral factors above. Thus, DOE concludes such a distribution would not be representative of the dishwasher market. Further, even if a specific household is not subject to the market failures above, the purchasing decision of dishwasher efficiency can be highly complex and influenced by a number of factors (
There is a complex set of behavioral factors, with sometimes opposing effects, affecting the dishwasher market. It is impractical to model every consumer decision incorporating all of these effects at this extreme level of granularity given the limited available data. Given these myriad factors, DOE suspects the resulting distribution of such a model, if it were possible, would be very scattered with high variability. It is for this reason DOE utilizes a random distribution (after accounting for efficiency market share constraints) to approximate these effects. The methodology is not an assertion of economic irrationality, but instead, it is a methodological approximation of complex consumer behavior. The analysis is neither biased toward high or low energy savings. The methodology does not preferentially assign lower-efficiency dishwashers to households in the no-new-standards case where savings from the rule would be greatest, nor does it preferentially assign lower-efficiency dishwashers to households in the no-new-standards case where savings from the rule would be smallest. Some consumers were assigned the dishwashers that they would have chosen if they had engaged in perfect economic considerations when purchasing the products. Others were assigned less-efficient dishwashers even where a more-efficient product would eventually result in life-cycle savings, simulating scenarios where, for example, various market failures prevent consumers from realizing those savings. Still others were assigned dishwashers that were
The payback period is the amount of time (expressed in years) it takes the consumer to recover the additional installed cost of more-efficient products, compared to baseline products, through energy cost savings. Payback periods that exceed the life of the product mean that the increased total installed cost is not recovered in reduced operating expenses.
The inputs to the PBP calculation for each efficiency level are the change in total installed cost of the product and the change in the first-year annual operating expenditures relative to the baseline. 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 when deriving first-year operating costs.
As noted previously, EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii)) For each considered efficiency level, DOE determined the value of the first year's energy and water savings by calculating the energy and water savings in accordance with the applicable DOE test procedure, and multiplying those savings by the average energy and water price projection for the year in which compliance with the amended standards would be required.
DOE uses projections of annual product shipments to calculate the national impacts of potential amended or new energy conservation standards on energy and water use, NPV, and future manufacturer cash flows.
Total shipments for dishwashers are developed by considering the demand from replacements for units in stock that fail and the demand from first-time owners (“FTOs”), which are the households without existing dishwashers. DOE calculated shipments due to replacements using the retirement function developed for the LCC analysis and historical data from AHAM. DOE estimated the ratio of households that would become FTOs each year based on the historical housing stock data, the estimated shipments of replacement units and the estimated shipment to FTOs. DOE calculated shipments of FTOs by multiplying the forecasted housing stock by the annualized ratio of existing households without a dishwasher that would purchase this product over the period 2027-2056, based on the housing stocks from
The NIA assesses the national energy savings (“NES”), national water savings (NWS), and the NPV from a national perspective of total consumer costs and savings that would be expected to result from new or amended standards at specific efficiency levels.
DOE evaluates the impacts of new or amended standards by comparing a case without such standards with standards-case projections. The no-new-standards case characterizes energy and water use and consumer costs for each product class in the absence of new or amended energy conservation standards. For this projection, DOE considers historical trends in efficiency and various forces that are likely to affect the mix of efficiencies over time. DOE compares the no-new-standards case with projections characterizing the market for each product class if DOE adopted new or amended standards at specific efficiency levels (
DOE uses a spreadsheet model to calculate the energy and water savings and the national consumer costs and savings from each TSL. Interested parties can review DOE's analyses by changing various input quantities within the spreadsheet. The NIA spreadsheet model uses typical values (as opposed to probability distributions) as inputs.
Table IV.14 summarizes the inputs and methods DOE used for the NIA analysis for the final rule. Discussion of these inputs and methods follows the
A key component of the NIA is the trend in efficiency projected for the no-new-standards case and each of the standards cases. Section IV.F.8 of this document describes how DOE developed an efficiency distribution for the no-new-standards case (which yields a shipment-weighted average efficiency) for each of the considered product classes for the year of anticipated compliance with an amended or new standard. DOE assumed that the shipment-weighted efficiency would not increase annually for the dishwasher product classes.
For the standards cases, DOE used a “roll-up” scenario to establish the shipment-weighted efficiency for the year that standards are assumed to become effective (2027). In this scenario, the market shares of products in the no-new-standards case that do not meet the standard under consideration would “roll up” to meet the new standard level, and the market share of products above the standard would remain unchanged. More details can be found in chapter 10 of the direct final rule TSD.
The national energy and water savings analysis involves a comparison of national energy consumption of the considered products between each potential standards case (“TSL”) and the case with no new or amended energy conservation standards. DOE calculated the national energy and water consumption by multiplying the number of units (stock) of each product (by vintage or age) by the unit energy and water consumption (also by vintage). DOE calculated annual NES and NWS based on the difference in national energy and water consumption for the no-new-standards case and for each higher efficiency standard case. DOE estimated energy consumption and savings based on site energy and converted the electricity consumption and savings to primary energy (
Use of higher-efficiency products is sometimes associated with a direct rebound effect, which refers to an increase in utilization of the product due to the increase in efficiency.
As discussed in section V.B.4 of this document, DOE has concluded that the standards adopted in this direct final rule will not lessen the utility or performance of the dishwashers under consideration in this rulemaking. Specifically, the amended standards adopted in this direct final rule require the use of the test procedure at appendix C2, which includes a minimum cleaning performance threshold to determine if a dishwasher “completely washes a normally soiled load of dishes,” so as to better represent consumer use of the product. Dishwashers that comply with the amended standards will provide consumer-acceptable level of cleaning performance and the rated energy and water consumption will be representative of consumer-acceptable cleaning performance. In the NES and NWS analysis, therefore, DOE assumed that the adopted standards would not result in a direct rebound effect purportedly arising from consumers resorting to handwashing, increased pre-rinsing, or other consumer behaviors that increase the energy and water consumption of dishwashing as a
However, in the NES and NWS analysis, DOE did account for the possible increase in energy and water use from handwashing dishes for households that would not purchase a new dishwasher purportedly due to the higher purchase costs under the amended standards. DOE adopted a conservative approach to these situations when households opt not to purchase a new dishwasher since there are alternatives to handwashing dishes: some households may keep their dishwasher longer than they might otherwise (
In 2011, in response to the recommendations of a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Sciences, DOE announced its intention to use FFC measures of energy use and greenhouse gas and other emissions in the national impact analyses and emissions analyses included in future energy conservation standards rulemakings. 76 FR 51281 (Aug. 18, 2011). After evaluating the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in which DOE explained its determination that EIA's National Energy Modeling System (“NEMS”) is the most appropriate tool for its FFC analysis and its intention to use NEMS for that purpose. 77 FR 49701 (Aug. 17, 2012). NEMS is a public domain, multi-sector, partial equilibrium model of the U.S. energy sector
For this direct final rule, DOE considered comments it had received in response to the May 2023 NOPR regarding national energy and water savings, including potential rebound effects.
The CA IOUs stated DOE is underestimating the water and energy savings from dishwasher use compared to hand washing, noting DOE estimates that hand washing consumes 140 percent more energy and 200 percent more water than a dishwasher, based on two European studies from 2005-2006 and an article from the U.S. Geological Survey. The CA IOUs reviewed these data sources and identified limitations in their applicability or determined they were outdated in their estimates of energy and water used for handwashing dishes because the studies suggest cultural differences may dictate handwashing practices and the international studies may not accurately represent practices of American consumers. Additionally, the CA IOUs noted that the USGS article does not cite specific references and that the underlying data that the USGS uses significantly overestimates the dishwashers' water consumption. (CA IOUs, No. 50 at pp. 2-3) The CA IOUs recommend incorporating a more extensive data set with more countries to mitigate bias when applying international studies and that DOE should reduce a dishwasher's low-end water consumption to align with current regulations and market information. (
Regarding hand washing water consumption, DOE used the weighted average dishwasher water consumption in the no-new-standards case and assumed that hand washing would consume 200 percent of the water used in machine washing for the same load based on literature review data. A 2005 study conducted at Bonn University in Germany found that, on average, hand washing used 67 percent more energy and more than 450 percent more water than machine washing.
Excluding minimum or maximum values, as the CA IOUs suggest, would result in a less accurate representation of the actual water consumption patterns exhibited by dishwashers as well as by households' hand washing. Further, DOE notes that the majority of studies cited by the CA IOUs occur in laboratory settings or span brief time periods (from a couple of hours to two weeks), so may not be representative of typical householder behaviors. Additionally, the sole field-metered study (Richter, 2011) found that relative to machine washing, handwashing used 200 percent more water,
AHAM and Whirlpool commented that energy conservation standards beyond EL 1 will cause rebound consumer behavior, such as running the dishwasher more than once to reach the desired cleanliness, re-rinsing dishes before placing them in the dishwasher, or handwashing, all of which undercut projected energy and water savings. (AHAM, No. 51 at pp. 5-6; Whirlpool, No. 45 at p. 5) AHAM stated that consumers are already hesitant to use their dishwashers for reasons not yet known and DOE should not adopt energy conservation standards—which because of the anti-backsliding rule cannot be undone if the results are as AHAM predicts—that could make it less likely consumers will purchase or use their efficient dishwashers. (AHAM, No.
AWE encouraged DOE to carefully consider product performance in setting standards. (AWE, No. 44 at p. 6) AWE stated that there are many examples of high-performing products that are also water-efficient and noted that products must meet standards for both parameters to earn EPA's WaterSense label. (
Sub-Zero Group, Inc. (“Sub-Zero”) asserted
DOE has considered the evidence and arguments put forward by these commenters, reviewed available literature, and has concluded that the adopted standards are not likely to cause the types of consumer behavior suggested by commenters, such as increased handwashing, prewashing, and changes in dishwasher use. In a 2020 rulemaking, DOE considered similar comments and determined that a “short-cycle” product class for dishwashers was warranted. In part, DOE based that determination on its view that existing standards failed to account for pre-washing or consumers washing the same load multiple times. DOE determined that a short-cycle “could” prevent handwashing or re-washing. 85 FR 68723. DOE recognizes that the conclusion reached here is a departure from that in the 2020 rule. For the reasons that follow, DOE no longer agrees with the 2020 Rule's assumption that diminished performance resulting from standards will result, in handwashing and rewashing. Whatever effect prior standards may have had on handwashing, pre-washing, and re-washing, DOE concludes that the standards adopted here are unlikely to have such an effect. Furthermore, as previously discussed, on February 14, 2024, DOE received a second joint statement from the same group of stakeholders that submitted the Joint Agreement in which the signatories corroborate this conclusion stating that dishwashers can provide cleaning performance at levels consistent with those on the market today when they meet the recommended standard levels.
DOE disagrees with the comments asserting that the standards adopted here will decrease dishwasher performance, thereby inducing consumers to increase pre-washing, handwashing, or changes to dishwasher use. As an initial matter, the academic literature does not support the assertion that dishwasher efficiency is correlated with consumer dishwashing behavior.
By contrast, DOE
Regarding EPA's WaterSense label, DOE notes that dishwashers are not products eligible for EPA's WaterSense label; additionally, WaterSense is a voluntary program, similar to EPA's ENERGY STAR Program, which includes voluntary energy and water use standards for dishwashers.
The inputs for determining the NPV of the total costs and benefits experienced by consumers are (1) total annual installed cost, (2) total annual operating costs (energy and water costs and repair and maintenance costs), and (3) a discount factor to calculate the present value of costs and savings. DOE calculates net savings each year as the difference between the no-new-standards case and each standards case in terms of total savings in operating costs versus total increases in installed costs. DOE calculates operating cost savings over the lifetime of each product shipped during the projection period.
As discussed in section IV.F.1 of this document, DOE developed dishwashers price trends based on historical PPI data. DOE applied the same trends to project prices for each product class at each considered efficiency level. By 2056, which is the end date of the projection period, the average dishwasher price is projected to drop 29.2 percent relative to 2020. DOE's projection of product prices is described in appendix 10C of the direct final rule TSD.
To evaluate the effect of uncertainty regarding the price trend estimates, DOE investigated the impact of different product price projections on the consumer NPV for the considered TSLs for dishwashers. In addition to the default price trend, DOE considered two product price sensitivity cases: (1) a constant price scenario; and (2) a high price decline scenario based on the combined PPI series of “all other miscellaneous household appliances” and “primary products of major household appliance manufacturing” between the years of 1988-2008, which shows a faster price decline than the full time series between the years of 1988-2022. The derivation of these price trends and the results of these sensitivity cases are described in appendix 10C of the direct final rule TSD.
The energy cost savings are calculated using the estimated energy savings in each year and the projected price of the appropriate form of energy. To estimate energy prices in future years, DOE multiplied the average regional energy prices by the projection of annual national-average residential energy price changes in the Reference case from
The water cost savings are calculated using the estimated water savings in each year and the projected water and wastewater prices. To estimate water and wastewater prices in future years, DOE multiplied the weighted average marginal national water and wastewater prices by the weighted average of water price projections of both public and private water and wastewater sources. For the public water and wastewater sources, the water price projection was developed as a linear regression based on historical 1986-2022 water and sewerage maintenance CPI data to forecast prices through 2050. For years after 2050, DOE adopted a flat price trend based on average price from 2046 through 2050. For the private well marginal water cost, the cost is only related to the additional pumping energy use; therefore, DOE used the projection of annual national average residential electricity price changes in the Reference case from AEO2023. The Reference case has an end year of 2050. The 2046-2050 average was used for all years after 2050. For septic tank users, the marginal wastewater costs were considered as zero and no price trends were required.
DOE forecasted an initial drop in dishwasher shipments in response to an increase in purchase price attributable to potential standards-related efficiency increases. For the selected TSL (TSL3) and the max-tech TSL (TSL5), a 0.03 percent and a 2.29 percent of the shipments drop were projected during the 30-year analysis period compared to the No-New-Standards case, respectively. DOE assumed that those consumers who forgo buying a dishwasher because of the higher purchase price would then wash their dishes by hand, and DOE estimated the energy and water use of washing dishes by hand (
In calculating the NPV, DOE multiplies the net savings in future years by a discount factor to determine their present value. For this final rule, DOE estimated the NPV of consumer benefits using both a 3-percent and a 7-percent real discount rate. DOE uses these discount rates in accordance with guidance provided by the Office of Management and Budget (“OMB”) to Federal agencies on the development of regulatory analysis.
ASAP et al. commented that DOE's analysis shows that the consumer benefits, even at the more conservative discount rate, outweigh the maximum costs to manufacturers by over seven times. (ASAP, No. 46 at p. 1)
In analyzing the potential impact of new or amended energy conservation standards on consumers, DOE evaluates the impact on identifiable subgroups of consumers that may be disproportionately affected by a new or amended national standard. The purpose of a subgroup analysis is to determine the extent of any such disproportional impacts. DOE evaluates impacts on particular subgroups of consumers by analyzing the LCC impacts and PBP for those particular consumers from alternative standard levels. For this final rule, DOE analyzed the impacts of the considered standard levels on three subgroups: (1) low-income households, (2) senior-only households, and (3) well-water-using households. The analysis used subsets of the
The identification of low-income households depends on family size and income level. Low-income households are significantly more likely to be renters or to live in subsidized housing units, compared to households that are not low-income. In these cases, the landlord purchases the equipment and may pay the energy bill as well.
For this direct final rule analysis, DOE used
Table IV.15 shows the distribution of low-income household dishwasher users with respect to whether they rent or own and whether they pay the energy bill.
In response to the May 2023 NOPR, Samsung stated its appreciation for DOE's analysis of the proposed standards levels on low-income households. Samsung commented that DOE's analysis shows that it is unlikely that renters purchase large appliances like dishwashers. Samsung noted that landlords typically bear the cost while renters directly benefit from higher-efficiency appliances through reduced energy costs. Samsung commented that considering the small percentage of low-income consumers in DOE's analysis experiencing a net LCC cost at TSL 3 (2 percent for standard-size dishwashers and 0 percent for compact-size dishwashers) and the positive average LCC impact, TSL 3 offers equitable outcomes for different consumer groups. Samsung added that the simple payback periods indicate that the initial investment in more efficient dishwashers can be recouped within a short timeframe. (Samsung, No. 52 at p. 3)
DOE agrees that TSL 3 provides equitable outcomes for different consumer groups.
AHAM commented that it commissioned Bellomy Research to conduct a study focusing on low-income households. (AHAM, No. 51 at p. 4)
DOE welcomes the opportunity to review the Bellomy report, but has not received a copy of the Bellomy research; nor is the report available online. DOE notes that, while unable to review the specific survey instrument and resulting dataset, this summary of AHAM survey findings implies that the framing does not reflect the context of a revised minimum energy conservation standard. Specifically, these are impacts AHAM is claiming would occur based on the full cost of a new dishwasher and are not specifically relevant to the potential increased incremental cost of purchasing a new dishwasher in a standards case (which is substantially less than the full cost of a dishwasher). Additionally, based on DOE's estimates, the installed price of EL1 is the same as EL2 which is the selected level for the standard size dishwashers. Therefore, all consumers, including low-income consumers, would not experience additional incremental cost at EL2 compared to EL1. Moreover, DOE's low-income LCC subgroup analysis uses inputs specific to low-income consumers to estimate the impact of adopted standards. The results indicate that only two percent of the low-income consumers would experience a net cost. DOE further notes, that AHAM is a party to the Joint Agreement and is supportive of the recommended standard adopted in this direct final rule.
DOE defined a senior-only household as having all occupants with ages of 65 years or greater. Using
AHAM recommended that DOE consider well-water users as a distinct sub-group given the differences in costs between publicly supplied and household-supplied water and the resulting impacts on operating cost savings. (AHAM at No. 51 at p. 16) AHAM further commented that at EL2 for standard dishwashers, using the appropriate cash costs for water and sewer, the mean LCC savings decline by nearly 50 percent. AHAM asserted that this makes it glaringly obvious that this group is worth direct consideration and DOE must acknowledge that its proposed standards create significant burden for them and adjust its proposal accordingly. (
DOE defined a well-water household as (1) having a dedicated water well for that particular household; (2) distributing water to no other households from its water well; and (3) having no connection to a public water utility water line.
Given that the majority of wells and septic tanks are located in rural areas, the probability of a household owning a well and/or a septic tank is significantly higher in rural areas than in urban areas. Therefore, DOE distinguishes rural and urban households when assigning the water and wastewater sources to the RECS household samples, and using different probability distributions of owning a well and a septic tank by Census Region based on AHS 2021 data.
Chapter 11 of the direct final rule TSD describes the consumer subgroup analysis.
DOE performed an MIA to estimate the financial impacts of amended energy conservation standards on manufacturers of dishwashers and to estimate the potential impacts of such standards on direct employment and manufacturing capacity. The MIA has both quantitative and qualitative aspects and includes analyses of projected industry cash flows, the INPV, investments in research and development (“R&D”) and manufacturing capital, and domestic manufacturing employment. Additionally, the MIA seeks to determine how amended energy conservation standards might affect manufacturing employment, capacity, and competition, as well as how standards contribute to overall regulatory burden. Finally, the MIA serves to identify any disproportionate impacts on manufacturer subgroups, including small business manufacturers.
The quantitative part of the MIA primarily relies on the GRIM, an industry cash flow model with inputs specific to this rulemaking. The key GRIM inputs include data on the industry cost structure, unit production costs, product shipments, manufacturer markups, and investments in R&D and manufacturing capital required to produce compliant products. The key GRIM outputs are the INPV, which is the sum of industry annual cash flows over the analysis period, discounted using the industry-weighted average cost of capital, and the impact to domestic manufacturing employment. The model uses standard accounting principles to estimate the impacts of more-stringent energy conservation standards on a given industry by comparing changes in INPV and domestic manufacturing employment between a no-new-standards case and the various standards cases. To capture the uncertainty relating to manufacturer pricing strategies following amended standards, the GRIM estimates a range of possible impacts under different manufacturer markup scenarios.
The qualitative part of the MIA addresses manufacturer characteristics and market trends. Specifically, the MIA considers such factors as a potential standard's impact on manufacturing capacity, competition within the industry, the cumulative impact of other
DOE conducted the MIA for this rulemaking in three phases. In Phase 1 of the MIA, DOE prepared a profile of the dishwasher manufacturing industry based on the market and technology assessment, and publicly available information. This included a top-down analysis of dishwasher manufacturers that DOE used to derive preliminary financial inputs for the GRIM (
In Phase 2 of the MIA, DOE prepared a framework industry cash-flow analysis to quantify the potential impacts of amended energy conservation standards. The GRIM uses several factors to determine a series of annual cash flows starting with the announcement of the standard and extending over a 30-year period following the compliance date of the standard. These factors include annual expected revenues, costs of sales, SG&A and R&D expenses, taxes, and capital expenditures. In general, energy conservation standards can affect manufacturer cash flow in three distinct ways: (1) creating a need for increased investment, (2) raising production costs per unit, and (3) altering revenue due to higher per-unit prices and changes in sales volumes.
In addition, during Phase 2, DOE developed interview guides to distribute to manufacturers of dishwashers in order to develop other key GRIM inputs, including product and capital conversion costs, and to gather additional information on the anticipated effects of energy conservation standards on revenues, direct employment, capital assets, industry competitiveness, and subgroup impacts.
In Phase 3 of the MIA, DOE conducted structured, detailed interviews with representative manufacturers. During these interviews, DOE discussed engineering, manufacturing, procurement, and financial topics to validate assumptions used in the GRIM and to identify key issues or concerns. As part of Phase 3, DOE also evaluated subgroups of manufacturers that may be disproportionately impacted by amended standards or that may not be accurately represented by the average cost assumptions used to develop the industry cash flow analysis. Such manufacturer subgroups may include small business manufacturers, low-volume manufacturers, niche players, and/or manufacturers exhibiting a cost structure that largely differs from the industry average. DOE identified one subgroup for a separate impact analysis: small business manufacturers. The small business subgroup is discussed in chapter 12 of the direct final rule TSD.
DOE uses the GRIM to quantify the changes in cash flow due to new or amended standards that result in a higher or lower industry value. The GRIM uses a standard, annual discounted cash-flow analysis that incorporates manufacturer costs, markups, shipments, and industry financial information as inputs. The GRIM models changes in costs, distribution of shipments, investments, and manufacturer margins that could result from an amended energy conservation standard. The GRIM spreadsheet uses the inputs to arrive at a series of annual cash flows, beginning in 2024 (the base year of the analysis) and continuing to 2056. DOE calculated INPVs by summing the stream of annual discounted cash flows during this period. For manufacturers of dishwashers, DOE used a real discount rate of 8.5 percent, which was derived from industry financials and then modified according to feedback received during manufacturer interviews.
The GRIM calculates cash flows using standard accounting principles and compares changes in INPV between the no-new-standards case and each standards case. The difference in INPV between the no-new-standards case and a standards case represents the financial impact of the new or amended energy conservation standard on manufacturers. As discussed previously, DOE developed critical GRIM inputs using a number of sources, including publicly available data, results of the engineering and shipments analysis, and information gathered from industry stakeholders during the course of manufacturer interviews conducted in support of the May 2023 NOPR. The GRIM results are presented in section V.B.2 of this document. Additional details about the GRIM, the discount rate, and other financial parameters can be found in chapter 12 of the direct final rule TSD.
Manufacturing more efficient products is typically more expensive than manufacturing baseline products due to the use of more complex components, which are typically more costly than baseline components. The changes in the MPCs of covered products can affect the revenues, gross margins, and cash flow of the industry.
For this analysis, DOE used a combination of design and efficiency engineering approaches. This approach involved physically disassembling commercially available products, reviewing publicly available cost information, and modeling equipment cost. From this information, DOE estimated the MPCs for a range of products currently available on the market. DOE then considered the incremental steps manufacturers may take to reach higher efficiency levels. In its modeling, DOE started with the baseline MPC and added the expected design options at each higher efficiency level to estimate incremental MPCs. For a complete description of the MPCs,
The GRIM estimates manufacturer revenues based on total unit shipment projections and the distribution of those shipments by efficiency level. Changes in sales volumes and efficiency mix over time can significantly affect manufacturer finances. For this analysis, the GRIM uses the NIA's annual shipment projections derived from the shipments analysis from 2024 (the base year) to 2056 (the end year of the analysis period).
New or amended energy conservation standards could cause manufacturers to incur conversion costs to bring their production facilities and dishwasher designs into compliance. DOE evaluated the level of conversion-related expenditures that would be needed to comply with each considered efficiency
DOE relied on information derived from manufacturer interviews, the engineering analysis, and product teardowns to evaluate the level of capital and product conversion costs manufacturers would likely incur at the various efficiency levels. During interviews, DOE asked manufacturers to estimate the capital conversion costs to meet the various efficiency levels. This feedback was compared to findings from the engineering analysis to determine the validity of investment levels. DOE also asked manufacturers to estimate the redesign effort, engineering resources, and marketing expenses required at various efficiency levels to quantify the product conversion costs. Based on manufacturer feedback, DOE also estimated “re-flooring” costs associated with replacing obsolete display models in big-box stores (
Manufacturer feedback on conversion costs was aggregated to protect confidential information. DOE then scaled up the aggregate capital and product conversion cost feedback from interviews to estimate total industry conversion costs. DOE adjusted the conversion cost estimates developed in support of the May 2023 NOPR to 2022$ for this direct final rule.
In general, DOE assumes all conversion-related investments occur between the year of publication of the direct final rule and the year by which manufacturers must comply with the new or amended standard. The conversion cost figures at each analyzed TSL can be found in section V.B.2.a of this document. For additional information on the estimated capital and product conversion costs,
MSPs include direct manufacturing production costs and all non-production costs (
Under the preservation of gross margin percentage scenario, DOE applied a single uniform “gross margin percentage” across all efficiency levels, which assumes that manufacturers would be able to maintain the same amount of profit as a percentage of revenues at all efficiency levels within a product class. As production costs increase with efficiency, this scenario implies that the per-unit dollar profit will increase. Based on publicly available financial information, as well as comments from manufacturer interviews, DOE assumed average gross margin percentages of 19.4 percent for both standard-size and compact-size product classes.
The tiered scenario starts with the three tiers of manufacturer markups wherein higher efficiency products have a higher markup than low efficiency products. In the no-new-standards case, the three tiers are baseline efficiency, ENERGY STAR V. 6.0, and ENERGY STAR V. 7.0 (which corresponds to the ENERGY STAR Most Efficient qualification criteria in 2022). In the standards case, DOE models the breadth of manufacturers' portfolio of products shrinking and amended standards, resulting in higher-tier products moving to lower tiers. As a result, higher efficiency products that previously commanded the ENERGY STAR V. 6.0 and 2022 ENERGY STAR Most Efficient manufacturer markups are assigned the baseline and ENERGY STAR V. 6.0 manufacturer markups, respectively. This scenario reflects a concern about product commoditization at higher efficiency levels as efficiency differentiators are eliminated.
A comparison of industry financial impacts under the two manufacturer markup scenarios is presented in section V.B.2.a of this document.
For this direct final rule, DOE considered comments it had received regarding its MIA presented in the May 2023 NOPR. The approach used for this direct final rule is largely the same approach DOE had used for the May 2023 NOPR analysis.
In response to the May 2023 NOPR, AHAM stated that it cannot comment on the accuracy of DOE's approach for including how manufacturers might or might not recover potential investments (
DOE models different standards-case manufacturer markup scenarios to represent the uncertainty surrounding the potential impacts on prices and profitability for manufacturers following the implementation of amended energy conservation standards (
AHAM urged DOE to consider cumulative regulatory burden in its analysis and decision-making process. AHAM commented that the nature of EPCA's requirements that energy conservation standards be reviewed every 6 years creates a never-ending cycle in which manufacturers need to constantly update or redesign products to meet new or amended standards. AHAM commented the cumulative regulatory burden is significant for home appliance manufacturers when redesigning products and product lines for consumer clothes dryers, residential clothes washers, conventional cooking products, dishwashers, refrigerators, refrigerator-freezers, and freezers, miscellaneous refrigeration products, room air conditioners, and microwave ovens. AHAM noted that many of these rulemakings are expected to have compliance dates in 2027. (AHAM, No. 51 at p. 22) AHAM asserted that engineers would need to spend all their time redesigning products to meet more stringent energy efficiency standards, pulling resources from other development efforts and business priorities. AHAM asserted that DOE's analysis does not adequately account for cumulative regulatory burden. AHAM encouraged DOE to acknowledge the cumulative regulatory burden its proposals place on industry and suggested that DOE could reduce cumulative regulatory burden by prioritizing rulemakings, spacing out the timing of final rules, allowing more lead time by delaying the publication of final rules in the
Whirlpool commented that manufacturers are facing unprecedented cumulative regulatory burden due to DOE energy conservation standards, citing more stringent proposed standards and tight compliance deadlines for over 10 DOE-covered product categories manufactured and sold by Whirlpool. Whirlpool commented that many of these proposed rules, if finalized, would have compliance dates in 2026 or 2027. Whirlpool, a member of AHAM and party to the Joint Agreement, asserted that manufacturers may be forced to make difficult tradeoffs and potentially stop many projects over a multi-year period focused on cost reduction, quality improvement, or innovation; and instead focus their resources mainly on compliance to these amended standards. (Whirlpool, No. 45, at p. 4)
DOE analyzes cumulative regulatory burden in accordance with section 13(g) of appendix A. As such, DOE details the rulemakings and expected conversion expenses of Federal energy conservation standards that could impact dishwasher original equipment manufacturers (“OEMs”) that take effect approximately 3 years before or after the 2027 compliance date in section V.B.2.e of this document. As shown in Table V.11, DOE considers the rulemakings referenced by AHAM and Whirlpool as potentially contributing to cumulative regulatory burden in this direct final rule analysis. DOE notes that regulations that are not finalized are not considered in its cumulative regulatory burden analysis, as the timing, cost, and impacts of unfinalized rules are speculative. However, to aid stakeholders in identifying potential cumulative regulatory burden, DOE does list rulemakings in Table V.11 that have proposed rules, which have tentative compliance dates, compliance levels, and compliance cost estimates. Regarding AHAM's suggestion about spacing out the timing of final rules for home appliance rulemakings, DOE has statutory requirements under EPCA on the timing of rulemakings. For dishwashers, refrigerators, refrigerator-freezers, and freezers, consumer cooking products, residential clothes washers, consumer clothes dryers, and room air conditioners, amended standards apply
In response to the May 2023 NOPR, Gazoobie commented
DOE does not expect that the levels adopted in this direct final rule, which align with the levels proposed in the May 2023 NOPR, would lead to product shortages. Manufacturers would have until 2027 (3 years after the direct final rule is published in the
The emissions analysis consists of two components. The first component estimates the effect of potential energy conservation standards on power sector and site (where applicable) combustion emissions of CO
The analysis of electric power sector emissions of CO
The on-site operation of dishwashers involves combustion of fossil fuels and results in emissions of CO
FFC upstream emissions, which include emissions from fuel combustion during extraction, processing, and transportation of fuels, and “fugitive” emissions (direct leakage to the atmosphere) of CH
The emissions intensity factors are expressed in terms of physical units per MWh or MMBtu of site energy savings. For power sector emissions, specific emissions intensity factors are calculated by sector and end use. Total emissions reductions are estimated using the energy savings calculated in the national impact analysis.
DOE's no-new-standards case for the electric power sector reflects the AEO, which incorporates the projected impacts of existing air quality regulations on emissions.
SO
However, beginning in 2016, SO
CSAPR also established limits on NO
The MATS limit mercury emissions from power plants, but they do not include emissions caps and, as such, DOE's energy conservation standards would be expected to slightly reduce Hg emissions. DOE estimated mercury emissions reduction using emissions factors based on
As part of the development of this final rule, for the purpose of complying with the requirements of Executive Order 12866, DOE considered the estimated monetary benefits from the reduced emissions of CO
To monetize the benefits of reducing GHG emissions, this analysis uses the interim estimates presented in the
DOE estimates the monetized benefits of the reductions in emissions of CO
DOE exercises its own judgment in presenting monetized climate benefits as recommended by applicable Executive orders, and DOE would reach the same conclusion presented in this rulemaking in the absence of the social cost of greenhouse gases. That is, the social costs of greenhouse gases, whether measured using the February 2021 interim estimates presented by the IWG on the Social Cost of Greenhouse Gases or by another means, did not affect the rule ultimately adopted by DOE.
DOE estimated the global social benefits of CO
As a member of the IWG involved in the development of the February 2021 SC-GHG TSD, DOE agreed that the interim SC-GHG estimates represent the most appropriate estimate of the SC-GHG until revised estimates are developed reflecting the latest, peer-reviewed science.
There are a number of limitations and uncertainties associated with the SC-GHG estimates. First, the current scientific and economic understanding of discounting approaches suggests discount rates appropriate for
For this direct final rule, DOE considered comments it had received regarding its approach for monetizing greenhouse gas emissions in the May 2023 NOPR. The approach used for this direct final rule is largely the same approach DOE had used for the May 2023 NOPR analysis.
In response to the May 2023 NOPR, AHAM objected to DOE using the social cost of carbon and other monetization of emissions reductions benefits in its analysis of the factors EPCA requires DOE to balance in determining the appropriate standard, which AHAM noted are constantly subject to change. (AHAM, No. 51 at p. 25) AHAM commented that DOE's decision making should not rely on the monetization of reductions benefits and that it is unclear to what extent DOE's deliberation to propose a TSL rely on the monetization of emissions reduction. (AHAM, No. 51 at pp. 24-25) AHAM stated that based on the extent to which DOE calculates climate and health benefits, it appears that DOE is prepared to rely upon the estimated monetary value of emissions reductions should the consumer NPV and energy savings not appear to justify a more stringent level. (
Zycher commented that the IWG analysis is deeply flawed because it asserts the benefits of GHG reductions on a global scale. (Zycher, No. 49 at pp. 22-23) Zycher stated that the IWG analysis incorporates explicitly in its benefit/cost calculation the purported global climate benefits from reductions in U.S. GHG emissions, presumably on the grounds that the assumed GHG externality is global in nature. Zycher asserted that this argument is fundamentally flawed, in substantial part because the global climate effect of all U.S. GHG emissions is very close to zero. (Zycher, No. 49 at p. 25)
In response to the AHAM and Zycher's comments regarding global impacts, DOE reiterates its view that the environmental and public health benefits associated with more efficient use of energy, including those connected to global climate change, are important to take into account when considering the need for national energy conservation. (
In addition, Executive Order 13563, which was re-affirmed on January 21, 2021, stated that each agency must, among other things: “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).” For these reasons, DOE considers the monetized value of emissions reductions in its evaluation of potential standard levels. While the benefits associated with reduction of GHG emissions inform DOE's evaluation of potential standards, DOE would reach the same conclusion regarding the economic justification of standards presented in this direct final rule without considering the social cost of greenhouse gases. As described in detail in section V.C.1 of this document, at the adopted TSL for dishwashers, the average LCC savings for both product classes are positive, a shipment-weighted 3 percent of consumers would experience a net cost, and the NPV of consumer benefits is positive using both a 3-percent and 7-percent discount rate.
Zycher commented
Zycher commented that the artificially low discount rate applied to the asserted climate benefits is incorrect analytically and that the opportunity cost of capital is the appropriate discount rate to be applied to the evaluation of the asserted climate benefits of the proposed rule because the allocation of resources to such endeavors imposes an opportunity cost in the form of forgone investments. (Zycher, No. 49 at p. 26) Zycher commented that the IWG estimates are flawed for a number of reasons, including the use of inconsistent and inappropriate discount rates: (1) “consumption rate of interest” is an incorrect conceptual discount rate for a proposed rule analysis because the use of resources for purposes of reductions in GHG emissions is obviously an investment, the opportunity cost of which is the marginal social return to investment and (2) incorrect identification of future generations' preferences. (Zycher, No. 49 at pp. 27-28) In regards to the consumption rate of interest, Zycher stated that the use of a low consumption rate of interest for the evaluation of climate benefits only would introduce an important bias in the allocation of resources among government policies and between government and private-sector resource use. Zycher commented that the private sector would not choose to use an artificially-low discount rate for the evaluation of alternative resource uses. (
The reasons for using a consumption discount rate rather than a rate based on the social rate of return on capital (estimated to be 7 percent under OMB's 2003 Circular A-4 guidance) is because the damage estimates developed for use in the SC-GHG are estimated in consumption-equivalent terms, and so an application of OMB Circular A-4's guidance for regulatory analysis would then use the consumption discount rate to calculate the SC-GHG. DOE reiterates that while OMB Circular A-4, as published in 2003, recommends using 3-percent and 7-percent discount rates as “default” values, Circular A-4 also reminds agencies that “different regulations may call for different emphases in the analysis, depending on the nature and complexity of the regulatory issues and the sensitivity of the benefit and cost estimates to the key assumptions.” On discounting, Circular A-4 recognizes that “special ethical considerations arise when comparing benefits and costs across generations,” and Circular A-4 acknowledges that analyses may appropriately “discount future costs and consumption benefits . . . at a lower rate than for intragenerational analysis.”
CEI
DOE notes that the IWG's SC-GHG estimates were developed over many years, using a transparent process, peer-reviewed methodologies, the best science available at the time of that process, and with input from the public. A number of criticisms raised in the comments were addressed by the IWG in its February 2021 SC-GHG TSD. DOE agrees that the interim SC-GHG values applied for this direct final rule are conservative estimates. In the February 2021 SC-GHG TSD, the IWG stated that the models used to produce the interim estimates do not include all of the important physical, ecological, and economic impacts of climate change recognized in the climate change literature. For these same impacts, the science underlying their “damage functions” lags behind the most recent research. In the judgment of the IWG, these and other limitations suggest that the range of four interim SC-GHG estimates presented in the TSD likely underestimate societal damages from GHG emissions.
DOE is aware that in December 2023, EPA issued a new set of SC-GHG estimates in connection with a final rulemaking under the Clean Air Act.
In response to Zycher's comment regarding the use of consumption discount rate instead of a rate based on the social rate of return on capital, DOE notes that DOE's analysis is only using the medium discount rate presented in the IWG TSD as a central estimate of climate benefits. The IWG TSD has provided significant details to justify the choice of discount rate and DOE agrees with the assessment. However, there is no suggested justification to use a 7 percent discount rate in the IWG TSD. DOE also wants to note that while DOE could have used other discount rate values (5 percent or 2.5 percent), as presented by the IWG, it would have only resulted in lower or higher climate benefit, but would not have changed DOE's conclusion of economic justification. As stated in section V.C.1 of this document, DOE concludes that the rule is economically justified even without factoring in the climate benefit.
DOE's derivations of the SC-CO
The SC-CO
DOE multiplied the CO
The SC-CH
DOE multiplied the CH
In December 2023, EPA issued an updated set of SC-GHG estimates (2023 SC-GHG) in connection with a final rulemaking under the Clean Air Act. These estimates incorporate recent research and address recommendations of the National Academies (2017) and comments from a 2023 external peer review of the accompanying technical report.
For this rulemaking, DOE used these updated 2023 SC-GHG values to
The overall climate benefits are greater when using the higher, updated 2023 SC-GHG estimates, compared to the climate benefits using the older IWG SC-GHG estimates. The results of the sensitivity analysis are presented in appendix 14C of the direct final rule TSD.
For the direct final rule, DOE estimated the monetized value of NO
DOE also estimated the monetized value of NO
DOE multiplied the site emissions reduction (in tons) in each year by the associated $/ton values, and then discounted each series using discount rates of 3 percent and 7 percent as appropriate.
The utility impact analysis estimates the changes in installed electrical capacity and generation projected to result for each considered TSL. The analysis is based on published output from the NEMS associated with
The output of this analysis is a set of time-dependent coefficients that capture the change in electricity generation, primary fuel consumption, installed capacity and power sector emissions due to a unit reduction in demand for a given end use. These coefficients are multiplied by the stream of electricity savings calculated in the NIA to provide estimates of selected utility impacts of potential new or amended energy conservation standards.
DOE considers employment impacts in the domestic economy as one factor in selecting a standard. Employment impacts from new or amended energy conservation standards include both direct and indirect impacts. Direct employment impacts are any changes in the number of employees of manufacturers of the products subject to standards. The MIA addresses those impacts. Indirect employment impacts are changes in national employment that occur due to the shift in expenditures and capital investment caused by the purchase and operation of more-efficient appliances. Indirect employment impacts from standards consist of the net jobs created or eliminated in the national economy, other than in the manufacturing sector being regulated, caused by (1) reduced spending by consumers on energy, (2) reduced spending on new energy supply by the utility industry, (3) increased consumer spending on the products to which the new standards apply and other goods and services, and (4) the effects of those three factors throughout the economy.
One method for assessing the possible effects on the demand for labor of such shifts in economic activity is to compare sector employment statistics developed by the Labor Department's Bureau of Labor Statistics (“BLS”). BLS regularly publishes its estimates of the number of jobs per million dollars of economic activity in different sectors of the economy, as well as the jobs created elsewhere in the economy by this same economic activity. Data from BLS indicate that expenditures in the utility sector generally create fewer jobs (both directly and indirectly) than expenditures in other sectors of the economy.
DOE estimated indirect national employment impacts for the standard levels considered in this direct final rule using an input/output model of the U.S. economy called Impact of Sector Energy Technologies version 4 (“ImSET”).
DOE notes that ImSET is not a general equilibrium forecasting model, and that the uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Because ImSET does not incorporate price changes, the employment effects predicted by ImSET may overestimate actual job impacts over the long run for this rule. Therefore, DOE used ImSET only to generate results for near-term timeframes (2027-2031), where these uncertainties are reduced. For more details on the employment impact analysis,
For any regulatory action that the Administrator of the Office of Information and Regulatory Affairs (“OIRA”) within OMB determines is a significant regulatory action under section 3(f)(1)) of E.O. 12866, section 6(a)(3)(C) of E.O. 12866 requires Federal agencies to provide an assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, identified by the agencies or the public (including improving the current regulation and reasonably viable non-regulatory actions), and an explanation why the planned regulatory action is preferable to the identified potential alternatives. 58 FR 51735, 51741. As discussed further in section VII.A of this document, OIRA has determined that this final regulatory action constitutes a “significant regulatory action” within the scope of section 3(f)(1) of E.O. 12866. Accordingly, DOE conducted a regulatory impact analysis (“RIA”) for this direct final rule.
As part of the RIA, DOE identifies major alternatives to standards that represent feasible policy options to reduce the energy and water consumption of the covered product. DOE evaluates each alternative in terms of its ability to achieve significant energy and water savings at a reasonable cost and compares the effectiveness of each alternative to the effectiveness of the finalized standard. DOE recognizes that voluntary or other non-regulatory efforts by manufacturers, utilities, and other interested parties can substantially affect energy and water efficiency or reduce energy and water consumption. DOE bases its assessment on the recorded impacts of any such initiatives to date, but also considers information presented by interested parties regarding the impacts current initiatives may have in the future. Further details regarding the RIA are provided in chapter 17 of the direct final rule TSD.
As discussed previously, DOE considered relevant comments, data, and information obtained during its own rulemaking process in determining whether the recommended standards from the Joint Agreement are in accordance with 42 U.S.C. 6295(o). And while some of those comments were directed at specific aspects of DOE's analysis of the Joint Agreement under 42 U.S.C. 6295(o), others were more generally applicable to DOE's energy conservation standards rulemaking program as a whole. The ensuing discussion focuses on these general comments concerning energy conservation standards issued under EPCA.
AHAM commented that it incorporated by reference its comments on the January 2022 Preliminary TSD regarding AHAM's position that there is more to be gained from increasing proper dishwasher use and ownership than from increasing energy conservation standards beyond efficiency level (“EL”) 1. (AHAM, No. 51 at p. 7) AHAM stated that the environmental goal for dishwasher cleaning should be to focus on dish cleaning as a process, as continued efficiency improvements for dishwashers themselves have diminishing returns with available technology. AHAM commented that the dishwasher is an important part of that process and increasing ownership and proper use of dishwashers has the potential to drive enormous water and significant energy savings that would dwarf the savings attributable to further amended standards. AHAM commented that in the future, conserving water—rather than energy—will continue to be the defining environmental issue for dishwasher cleaning performance. (
DOE acknowledges that a percentage of households do not own or own but do not use their dishwashers. DOE also acknowledges that non-regulatory options may exist to promote dishwasher ownership and property use to further push the potential for energy and water savings. However, DOE is required by EPCA to establish or amend standards for a covered product that are designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(g), (m), and (o)(2)(A)) DOE has determined that the energy conservation standards for dishwashers adopted in this direct final rule achieve the maximum improvement in energy efficiency which is technologically feasible and economically justified.
The CA IOUs recommended DOE adjust the current load usage factors to reflect changes in consumer pre-treating habits since 2001, the date of the studies DOE relies on in this rulemaking. (CA IOUs, No. 50 at pp. 5-6) The CA IOUs commented that a nationally representative study by Lawrence Berkeley National Laboratory (“LBNL”) in 2021 (“2021 LBNL Study”)
DOE notes that it established the load usage factors in the dishwasher test procedure in August 2003 to account for the varying energy and water performance of units that include soil sensors. 68 FR 51887, 51890. In that rulemaking, DOE relied on survey data gathered and analyzed by Arthur D. Little (“ADL”)
More recently, in the January 2023 TP Final Rule, DOE addressed comments from the CA IOUs and Samsung pertaining to whether consumers' pre-rinsing habits, including those surveyed in the 2021 LBNL Study, warranted amendments to the soil loads and corresponding usage factors in the dishwasher test procedure. DOE determined in the January 2023 TP Final Rule that it did not have, nor did commenters submit, any specific information about the types of soils that would be used to reflect pre-rinsing, or lack thereof, or the consumer relevance of such soils. 88 FR 3234, 3246. Accordingly, DOE did not amend the soil load usage factors in the January 2023 TP Final Rule.
DOE also notes that the 2021 LBNL Study focused on consumer priorities with respect to their dishwashers. The requirement for pre-treatment of dishes was identified as the second to last priority of 18 possibilities for the 1201 survey respondents (less important than cutlery tray location). Pre-treatment of dishes reflect consumer habit, rather than dishwasher performance.
The National Academies of Sciences, Engineering, and Medicine (“NAS”) periodically appoint a committee to peer review the assumptions, models, and methodologies that DOE uses in setting energy conservation standards for covered products and equipment. The most recent such peer review was conducted in a series of meetings in 2020, and NAS issued the report
AHAM stated that despite previous requests from AHAM and others, DOE has failed to review and incorporate the recommendations of the NAS report, instead indicating that it will conduct a separate rulemaking process without such a process having been initiated. (AHAM, No. 51 at p. 17) AHAM asserted that DOE seems to be ignoring the recommendations in the NAS Peer Review Report and even conducting analyses that are the opposite of these recommendations. AHAM stated that DOE cannot continue to perpetuate the errors in its analytical approach that have been pointed out by stakeholders and the NAS report, as to do so will lead to arbitrary and capricious rules. (
As discussed, the rulemaking process for establishing new or amended standards for covered products and equipment is specified at appendix A. DOE periodically examines and revises these provisions in separate rulemaking proceedings. The recommendations provided in the 2021 NAS report, which pertain to the processes by which DOE analyzes energy conservation standards, will be considered by DOE in a forthcoming rulemaking process.
The following section addresses the results from DOE's analyses with respect to the considered energy conservation standards for dishwashers. It addresses the TSLs examined by DOE, the projected impacts of each of these levels if adopted as energy conservation standards for dishwashers, and the standards levels that DOE is adopting in this direct final rule. Additional details regarding DOE's analyses are contained in the direct final rule TSD supporting this document.
In general, DOE typically evaluates potential new or amended standards for products and equipment by grouping individual efficiency levels for each class into TSLs. Use of TSLs allows DOE to identify and consider manufacturer cost interactions between the dishwasher classes, to the extent that there are such interactions, and price elasticity of consumer purchasing decisions that may change when different standard levels are set.
In the analysis conducted for this direct final rule, DOE analyzed the benefits and burdens of five TSLs for dishwashers. DOE developed TSLs that combine efficiency levels for each analyzed dishwasher class. DOE presents the results for the TSLs in this document, while the results for all efficiency levels that DOE analyzed are in the direct final rule TSD.
Table V.1 presents the TSLs and the corresponding efficiency levels that DOE has identified for potential amended energy conservation standards for dishwashers. TSL 5 represents the max-tech energy efficiency for both product classes and corresponds to EL 4 for standard-size dishwashers and EL
DOE analyzed the economic impacts on dishwasher consumers by looking at the effects that potential amended standards at each TSL would have on the LCC and PBP. DOE also examined the impacts of potential standards on selected consumer subgroups. These analyses are discussed in the following sections.
In general, higher-efficiency products affect consumers in two ways: (1) purchase price increases and (2) annual operating costs decrease. Because the technologies to improve energy efficiency may also reduce water usage (as discussed in IV.C.1.b), annual operating costs include both energy and water consumption. Inputs used for calculating the LCC and PBP include total installed costs (
Table V.2 through Table V.5 show the LCC and PBP results for the TSLs considered for each product class. In the first of each pair of tables, the simple payback is measured relative to the baseline product. In the second table, the impacts are measured relative to the efficiency distribution in the no-new-standards case in the compliance year (
In the consumer subgroup analysis, DOE estimated the impact of the considered TSLs on low-income households, senior-only households, and well-water households. Table V.6 and Table V.7 compare the average LCC savings and PBP at each efficiency level for the consumer subgroups with similar metrics for the entire consumer sample for standard-size dishwashers. In most cases, the average LCC savings and PBP for low-income households, senior-only households, and well-water households at the considered efficiency levels are not substantially different from the average for all households. The well-users have reduced water operating costs and therefore receive less operating cost savings (and lower LCC savings). The senior subgroup has
Chapter 11 of the direct final rule TSD presents the complete LCC and PBP results for the subgroups.
As discussed in section III.D.2 of this document, EPCA establishes a rebuttable presumption that an energy conservation standard is economically justified if the increased purchase cost for a product that meets the standard is less than three times the value of the first-year energy savings resulting from the standard. (42 U.S.C. 6295(o)(2)(B)(iii)) In calculating a rebuttable presumption payback period for each of the considered TSLs, DOE used discrete values, and, as required by EPCA, based the energy use calculation on the DOE test procedures for dishwashers. In contrast, the PBPs presented in section V.B.1.a of this document were calculated using distributions that reflect the range of energy use in the field.
Table V.8 presents the rebuttable-presumption payback periods for the considered TSLs for dishwashers. While DOE examined the rebuttable-presumption criterion, it considered whether the standard levels considered for this rule are economically justified through a more detailed analysis of the economic impacts of those levels, pursuant to 42 U.S.C. 6295(o)(2)(B)(i), that considers the full range of impacts to the consumer, manufacturer, Nation, and environment. The results of that analysis serve as the basis for DOE to definitively evaluate the economic justification for a potential standard level, thereby supporting or rebutting the results of any preliminary determination of economic justification.
DOE performed an MIA to estimate the impact of amended energy conservation standards on manufacturers of dishwashers. The following section describes the expected impacts on manufacturers at each considered TSL. Chapter 12 of the direct final rule TSD explains the analysis in further detail.
In this section, DOE provides GRIM results from the analysis, which examines changes in the industry that would result from a standard. The following tables illustrate the estimated financial impacts (represented by changes in INPV) of potential amended energy conservation standards on manufacturers of dishwashers, as well as the conversion costs that DOE estimates manufacturers of dishwashers would incur at each TSL.
To evaluate the range of cash-flow impacts on the dishwasher industry, DOE modeled two scenarios using different assumptions that correspond to the range of anticipated market responses to amended energy conservation standards: (1) a preservation of gross margin percentage scenario; (2) a tiered scenario, as discussed in section IV.J.2.d of this document. The preservation of gross margin percentage applies a “gross margin percentage” of 19.4 percent for both standard-size and compact-size product classes.
The tiered scenario starts with the three different product manufacturer markups in the no-new-standards case (baseline, ENERGY STAR V. 6.0, and ENERGY STAR V. 7.0
Each of the modeled scenarios results in a unique set of cash flows and corresponding INPV for each TSL. INPV is the sum of the discounted cash flows to the industry from the direct final rule publication year through the end of the analysis period (2024-2056). The “change in INPV” results refer to the difference in industry value between the no-new-standards case and standards case at each TSL. To provide perspective on the short-run cash flow impact, DOE includes a comparison of free cash flow between the no-new-standards case and the standards case at each TSL in the year before amended standards would take effect. This figure provides an understanding of the magnitude of the required conversion costs relative to the cash flow generated by the industry in the no-new-standards case.
Conversion costs are one-time investments for manufacturers to bring their manufacturing facilities and product designs into compliance with potential amended standards. As described in section IV.J.2.c of this document, conversion cost investments occur between the year of publication of the direct final rule and the year by which manufacturers must comply with the new standard. The conversion costs can have a significant impact on the short-term cash flow of the industry and generally result in lower free cash flow in the period between the publication of the direct final rule and the compliance date of potential amended standards. Conversion costs are independent of the manufacturer markup scenarios and are not presented as a range in this analysis.
At TSL 1, the standard represents EL 1 across both standard-size and compact-size dishwashers and the ENERGY STAR V. 6.0 level. The change in INPV is expected to range from −7.5 percent to −0.8 percent. At this level, free cash flow is estimated to decrease by 8.5 percent compared to the no-new-standards case value of $52.3 million in the year 2026, the year before the standards year. Currently, approximately 93 percent of domestic dishwasher shipments meet the efficiencies required at TSL 1. For standard-size dishwashers, which account for approximately 98 percent of annual shipments, 93 percent of shipments meet the efficiencies required. For compact-size dishwashers, which account for the remaining 2 percent of annual shipments, 87 percent of shipments meet the efficiencies required.
The design options DOE analyzed for standard-size dishwashers include implementing electronic controls, soil sensing, multiple spray arms, improved water filters, a separate drain pump, and tub insulation. The design options DOE analyzed for compact-size dishwashers include implementing improved controls. At this level, capital conversion costs are minimal since the majority of products already meet the efficiency levels required. As with all the analyzed TSLs, conversion costs incorporate industry testing costs as manufacturers implement the cleaning performance test and re-rate all their existing, compliant models in accordance with the new appendix C2. 10 CFR appendix C2 to subpart of part 430. DOE expects industry to incur some re-flooring costs associated with standard-size dishwashers as manufacturers redesign baseline products to meet the efficiency levels required by TSL 1. In interviews, manufacturers stated that there are not re-flooring costs associated with compact-size dishwashers as those are typically not on display at big-box stores. DOE estimates capital conversion costs of $1.0 million and product conversion costs of $11.8 million. Conversion costs total $12.7 million.
Under the tiered manufacturer markup scenario, which is discussed in IV.J.2.d of this document, the key driver of impacts to INPV at TSL 1 is the result of margin compression for both standard-size and compact-size dishwashers as manufacturers forfeit premiums and cut into margins as they try to maintain a competitively priced baseline product. Although only a small fraction of products (approximately 7 percent of shipments) would need to be redesigned at this level, the margin compression under the tiered scenario has a disproportionately large impact on INPV, since most of the market (approximately 84 percent of standard-size and compact-size dishwasher shipments) is at EL 1 (
At TSL 2, the standard represents the ENERGY STAR V. 6.0 level (EL 1) for standard-size dishwashers and the max-tech efficiency level (EL 2) for compact-size dishwashers. The change in INPV is expected to range from -8.4 percent to -1.7 percent. At this level, free cash flow is estimated to decrease by 16.3 percent compared to the no-new-standards case value of $52.3 million in the year 2026, the year before the standards year. Currently, approximately 92 percent of domestic dishwasher shipments meet the efficiencies required at TSL 2. As with TSL 1, 93 percent of standard-size dishwasher shipments meet the efficiencies required. For compact-size dishwashers, 21 percent of shipments currently meet the efficiencies required.
The design options DOE analyzed for standard-size dishwashers are the same as at TSL 1. The design options analyzed for compact-size dishwashers include implementing the design options at TSL 1 as well as permanent magnet motors, improved filters, hydraulic system optimization, heater incorporated into base of tub, and reduced sump volume. The increase in
Under the tiered manufacturer markup scenario, the key driver of impacts to INPV at TSL 2 is the result of margin compression for both standard-size and compact-size dishwashers as manufacturers forfeit premiums and cut into margins in an attempt to maintain a competitively priced baseline product. In particular, because TSL 2 sets standards for compact-size dishwashers at max-tech, manufacturers lose their premium markup for high-efficiency compact-size products, contributing to a reduction in future revenues and INPV.
At TSL 3, the standard represents the gap-fill efficiency level between the ENERGY STAR V. 6.0 level and ENERGY STAR V. 7.0 level (EL 2) for standard-size dishwashers and the ENERGY STAR V. 6.0 level (EL 1) for compact-size dishwashers. The change in INPV is expected to range from −20.2 percent to −13.1 percent. At this level, free cash flow is estimated to decrease by 97.1 percent compared to the no-new-standards case value of $52.3 million in the year 2026, the year before the standards year. Currently, approximately 11 percent of domestic dishwasher shipments meet the efficiencies required at TSL 3. For standard-size dishwashers, 9 percent of current shipments meet the efficiencies required. As with TSL 1, 87 percent of compact-size dishwasher shipments meet the efficiencies required.
The design options DOE analyzed for standard-size dishwashers include implementing the design options at TSL 1 and TSL 2 as well as improved control strategies, which could necessitate product redesign to more closely control water temperature, water fill volumes,
TSL 3 brings standards for standard-size dishwashers above ENERGY STAR V. 6.0 levels. Under the tiered scenario, the fraction of products that are eligible for any additional premium markups above baseline is further reduced as manufacturers sacrifice margins while seeking to maintain a low-price-point baseline model.
At TSL 4, the standard represents the highest efficiency levels providing positive LCC savings, which comprise the gap-fill efficiency level between the ENERGY STAR V. 6.0 level and ENERGY STAR V. 7.0 level (EL 2) for standard-size dishwashers and max-tech efficiency level (EL 2) for compact-size dishwashers. The change in INPV is expected to range from −21.2 percent to −14.0 percent. At this level, free cash flow is estimated to decrease by 104.8 percent compared to the no-new-standards case value of $52.3 million in the year 2026, the year before the standards year. Currently, approximately 10 percent of domestic dishwasher shipments meet the efficiencies required at TSL 4. As with TSL 3, 9 percent of standard-size dishwasher shipments meet the efficiencies required. As with TSL 2, 21 percent of compact-size dishwasher shipments meet the efficiencies required.
The design options DOE analyzed for standard-size dishwashers are the same as at TSL 3. The design options analyzed for compact-size dishwashers are the same as at TSL 2 and include implementing permanent magnet motors, improved filters, hydraulic system optimization, heater incorporated into base of tub, and reduced sump volume. The increase in conversion costs from the prior TSL is entirely due to the increased efficiency level required for compact-size dishwashers. As discussed previously, all manufacturers of compact-size countertop dishwashers with four or more place settings and in-sink dishwashers with less than four place settings would need to redesign their products to meet the efficiencies required, as DOE is not aware of any currently available products in these two configurations that meet TSL 4 (max-tech for compact-size dishwashers). Manufacturer feedback and the engineering analysis indicate that redesigning these compact-size dishwasher configurations to meet TSL 4 would require significant investment, both in terms of engineering resources and new tooling, relative to the size of the domestic compact-size dishwasher market. DOE expects industry to incur similar re-flooring costs compared to TSL 3. DOE estimates capital conversion costs of $73.7 million and product conversion costs of $63.5 million. Conversion costs total $137.2 million.
At TSL 4, the large conversion costs result in free cash flow dropping below zero in the years before the standards year. The negative free cash flow calculation indicates manufacturers may need to access cash reserves or outside capital to finance conversion efforts.
Under the tiered manufacturer markup scenario, one of the key drivers of impacts to INPV at TSL 4 is the result of margin compression for both standard-size and compact-size dishwashers as manufacturers forfeit premiums and cut into margins in an attempt to maintain a competitively priced baseline product. In particular, because TSL 4 sets standards for compact-size dishwashers at max-tech, manufacturers lose their premium markups for high-efficiency compact-size products, contributing to a reduction in future revenues and INPV.
At TSL 5, the standard represents the max-tech energy efficiency for both product classes and corresponds to EL 4 for standard-size dishwashers and EL 2 for compact-size dishwashers. The change in INPV is expected to range from −54.5 percent to −43.7 percent. At this level, free cash flow is estimated to decrease by 552.0 percent compared to the no-new-standards case value of $52.3 million in the year 2026, the year before the standards year. Currently, less than 1 percent of domestic dishwasher shipments meet the efficiencies required at TSL 5. For standard-size dishwashers, DOE estimates that no shipments currently meet the efficiencies required. As with TSL 4, 21 percent of compact-size dishwasher shipments meet the efficiencies required.
The design options DOE analyzed for standard-size dishwashers include design options considered at the lower efficiency levels (
All manufacturers interviewed stated that meeting max-tech would necessitate significant platform redesign in order to meet the required efficiencies and maintain the product attributes that consumers desire. Manufacturers noted that investments in new tooling, equipment, and production line modifications may be necessary to implement a range of design options. Specifically, manufacturers discussed tooling for additional spray arms, new sump tooling, new stamping equipment, door opening systems, improved filtration systems, and new dish racks. Manufacturers would likely need to convert all existing plastic tub designs to stainless steel tubs, which would necessitate expanding existing stainless steel tub production capacity and retiring plastic injection equipment used for plastic tubs. None of the manufacturers interviewed, which together account for approximately 90 percent of dishwasher shipments, currently offer standard-size dishwashers that meet max-tech. Therefore, most manufacturers expressed technical uncertainty about the extent of the design changes and production line updates that would be needed to meet max-tech and satisfy their consumer base. Some manufacturers suggested they would explore new water purification technology systems for water reuse. Other manufacturers noted that meeting max-tech may necessitate new tub architectures, which would require significant capital investment. These manufacturers noted that if new technology was necessary (
At TSL 5, the large conversion costs result in free cash flow dropping below zero in the years before the standards year. The negative free cash flow calculation indicates manufacturers may need to access cash reserves or outside capital to finance conversion efforts.
TSL 5 sets the standard for all products as high as technologically feasible, leaving manufacturers no ability to differentiate products by efficiency under the tiered manufacturer markup scenario. Thus, all margins collapse to the baseline levels.
To quantitatively assess the potential impacts of amended energy conservation standards on direct employment in the dishwasher industry, DOE used the GRIM to estimate the domestic labor expenditures and number of direct employees in the no-new-standards case and in each of the standards cases during the analysis period. For this direct final rule, DOE used the most up-to-date information available. DOE calculated these values using statistical data from the U.S. Census Bureau's 2021
Labor expenditures related to product manufacturing depend on the labor intensity of the product, the sales volume, and an assumption that wages remain fixed in real terms over time. The total labor expenditures in each year are calculated by multiplying the total MPCs by the labor percentage of MPCs. The total labor expenditures in the GRIM were then converted to total production employment levels by dividing production labor expenditures by the average fully burdened wage multiplied by the average number of hours worked per year per production worker. To do this, DOE relied on the
The total of production employees is then multiplied by the U.S. labor percentage to convert total production employment to total domestic production employment. The U.S. labor percentage represents the industry fraction of domestic manufacturing production capacity for the covered product. This value is derived from manufacturer interviews, product database analysis, and publicly available information. DOE estimates that approximately 78 percent of standard-size dishwashers are produced domestically. DOE estimates that no compact-size dishwashers are produced domestically. Therefore, overall, DOE estimates that approximately 76 percent of all covered dishwashers sold in the
The domestic production employees estimate covers production line workers, including line supervisors, who are directly involved in fabricating and assembling products within the OEM facility. Workers performing services that are closely associated with production operations, such as materials handling tasks using forklifts, are also included as production labor. DOE's estimates only account for production workers who manufacture the specific products covered by this direct final rule.
Non-production workers account for the remainder of the direct employment figure. The number of non-production employees covers domestic workers who are not directly involved in the production process, such as sales, engineering, human resources, management,
Using the GRIM, DOE estimates in the absence of new energy conservation standards there would be 3,950 domestic production and non-production workers for standard-size dishwashers in 2027 (the analyzed compliance year). To evaluate the range of cash-flow impacts on the dishwasher industry, DOE modeled two scenarios using different assumptions that correspond to the range of anticipated market responses to amended energy conservation standards: (1) a preservation of gross margin percentage scenario; (2) a tiered scenario, as discussed in section IV.J.2.d of this document. The preservation of gross margin percentage applies a “gross margin percentage” of 19.4 percent for both standard-size and compact-size product classes. This scenario assumes that a manufacturer's per-unit dollar profit would increase as MPCs increase in the standards cases and represents the upper-bound to industry profitability under potential amended energy conservation standards.
The tiered scenario starts with the three different product manufacturer markups in the no-new-standards case (baseline, ENERGY STAR V. 6.0, and ENERGY STAR V. 7.0). This scenario reflects a concern about product commoditization at higher efficiency levels as efficiency differentiators are eliminated and manufacturer markups are reduced. The tiered scenario results in the lower (or larger in magnitude) bound to impacts of potential amended standards on industry.
Each of the modeled scenarios results in a unique set of cash flows and corresponding INPV for each TSL. INPV is the sum of the discounted cash flows to the industry from the direct final rule publication year through the end of the analysis period (2024-2056). The “change in INPV” results refer to the difference in industry value between the no-new-standards case and standards case at each TSL. To provide perspective on the short-run cash flow impact, DOE includes a comparison of free cash flow between the no-new-standards case and the standards case at each TSL in the year before amended standards would take effect. This figure provides an understanding of the magnitude of the required conversion costs relative to the cash flow generated by the industry in the no-new-standards case.
Conversion costs are one-time investments for manufacturers to bring their manufacturing facilities and product designs into compliance with potential amended standards. As described in section IV.J.2.c of this document, conversion cost investments occur between the year of publication of the direct final rule and the year by which manufacturers must comply with the new standard. The conversion costs can have a significant impact on the short-term cash flow of the industry and generally result in lower free cash flow in the period between the publication of the direct final rule and the compliance date of potential amended standards. Conversion costs are independent of the manufacturer markup scenarios and are not presented as a range in this analysis.
Table V.9 Table V.10 shows the range of the impacts of energy conservation standards on U.S. manufacturing employment in the standard-size dishwasher industry. As previously noted, DOE did not identify any U.S. manufacturing facilities producing compact-size dishwashers for the domestic market, and therefore does not present a range of direct employment impacts. The following discussion provides a qualitative evaluation of the range of potential impacts presented in Table V.10.
The direct employment impacts shown in Table V.10 represent the potential domestic employment changes that could result following the compliance date for the standard-size dishwashers in this direct final rule. The upper bound estimate corresponds to an increase in the number of domestic workers that would result from amended energy conservation standards if manufacturers continue to produce the same scope of covered products within the United States after compliance takes effect.
To establish a conservative lower bound, DOE assumes all manufacturers would shift production to foreign countries or would shift to importing finished goods (versus manufacturing in-house). As previously discussed, the majority of standard-size dishwashers sold in the United States are manufactured in domestic production facilities. However, many major dishwasher OEMs with U.S. production facilities also have dishwasher manufacturing facilities located outside the United States. At lower TSLs (
Additional detail on the analysis of direct employment can be found in chapter 12 of the direct final rule TSD. Additionally, the employment impacts discussed in this section are independent of the employment impacts from the broader U.S. economy, which are documented in chapter 16 of the direct final rule TSD.
As discussed in section V.B.2.a of this document, implementing the different design options analyzed for this direct final rule would require varying levels of resources and investment. At higher efficiency levels, manufacturers noted that balancing more stringent energy and water use requirements while maintaining the product attributes their consumers value becomes increasingly challenging. All manufacturers interviewed, which together account for approximately 90 percent of industry shipments, noted that meeting the standard-size dishwasher max-tech efficiencies and cleaning performance requirement while maintaining internal targets for other product attributes such as drying performance, cycle duration, and noise levels, would require significant investment. None of the manufacturers interviewed currently offer a max-tech product, and they expressed technical uncertainty about the exact technologies and production line changes that would be needed to meet both the required efficiencies and the manufacturers' internal design standards. In interviews, several manufacturers expressed concerns that the 3-year time period between the announcement of the direct final rule and the compliance date of the amended energy conservation standard might be insufficient to design, test, and manufacture the necessary number of products to meet consumer demand. These manufacturers noted that the 3-year time period would be particularly problematic if the standard necessitated completely new tub architectures. However, because TSL 3 (
Using average cost assumptions to develop industry cash-flow estimates may not capture the differential impacts among subgroups of manufacturers. Small manufacturers, niche players, or manufacturers exhibiting a cost structure that differs substantially from the industry average could be affected disproportionately. DOE investigated small businesses as a manufacturer subgroup that could be disproportionally impacted by energy conservation standards and could merit additional analysis. DOE did not identify any other adversely impacted manufacturer subgroups for this rulemaking based on the results of the industry characterization.
DOE analyzes the impacts on small businesses in a separate analysis for the standards proposed in the NOPR published elsewhere in this issue of the
One aspect of assessing manufacturer burden involves looking at the cumulative impact of multiple DOE standards and the regulatory actions of other Federal agencies and States that affect the manufacturers of a covered product or equipment. While any one regulation may not impose a significant burden on manufacturers, the combined effects of several existing or impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Multiple regulations affecting the same manufacturer can strain profits and lead companies to abandon product lines or markets with lower expected future returns than competing products. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to appliance efficiency.
For the cumulative regulatory burden analysis, DOE examines Federal, product-specific regulations that could affect dishwasher manufacturers that take effect approximately 3 years before or after the 2027 compliance date (2024 to 2030). This information is presented in Table V.11.
As shown in Table V.11, the rulemakings with the largest overlap of dishwasher OEMs include refrigerators, refrigerator-freezers, and freezers, consumer conventional cooking products, residential clothes washers, consumer clothes dryers, and miscellaneous refrigeration products, which are all part of the multi-product Joint Agreement submitted by interested parties.
The multi-product Joint Agreement states the “jointly recommended compliance dates will achieve the overall energy and economic benefits of this agreement while allowing necessary lead-times for manufacturers to redesign products and retool manufacturing plants to meet the recommended standards across product categories.” (Joint Agreement, No. 55 at p. 2) The staggered compliance dates help mitigate manufacturers' concerns about their ability to allocate sufficient resources to comply with multiple concurrent amended standards and about the need to align compliance dates for products that are typically designed or sold as matched pairs.
This section presents DOE's estimates of the national energy savings, NWS, and the NPV of consumer benefits that would result from each of the TSLs considered as potential amended standards.
To estimate the energy and water savings attributable to potential amended standards for dishwashers, DOE compared their energy and water consumption under the no-new-standards case to their anticipated energy and water consumption under each TSL. The savings are measured over the entire lifetime of products purchased in the 30-year period that begins in the year of anticipated compliance with amended standards (2027-2056). Table V.13 and Table V.14 present DOE's projections of the national energy and water savings for each TSL considered for dishwashers. The savings were calculated using the approach described in section IV.H.2 of this document.
OMB Circular A-4
DOE estimated the cumulative NPV of the total costs and savings for consumers that would result from the TSLs considered for dishwashers. In accordance with OMB's guidelines on regulatory analysis,
The NPV results based on the aforementioned 9-year analytical period are presented in Table V.18. The impacts are counted over the lifetime of products purchased during the period 2027-2035. As mentioned previously, such results are presented for informational purposes only and are not indicative of any change in DOE's analytical methodology or decision criteria.
The previous results reflect the use of a default trend to estimate the change in price for dishwashers over the analysis period (
DOE estimates that amended energy conservation standards for dishwashers will reduce energy expenditures for consumers of those products, with the resulting net savings being redirected to other forms of economic activity. These expected shifts in spending and economic activity could affect the demand for labor. As described in section IV.N of this document, DOE used an input/output model of the U.S. economy to estimate indirect employment impacts of the TSLs that DOE considered. There are uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Therefore, DOE generated results for near-term timeframes (2027-2056), where these uncertainties are reduced.
The results suggest that the adopted standards are likely to have a negligible impact on the net demand for labor in the economy. The net change in jobs is so small that it would be imperceptible in national labor statistics and might be offset by other, unanticipated effects on employment. Chapter 16 of the direct final rule TSD presents detailed results regarding anticipated indirect employment impacts.
As stated, EPCA, as codified, contains the provision that the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))
As discussed in this section, DOE has concluded that the standards adopted in this direct final rule will not lessen the utility or performance of the dishwashers under consideration in this rulemaking. Manufacturers of these products currently offer units that meet or exceed the adopted standards.
In making this determination for this direct final rule, DOE considered comments it had received in response to the May 2023 NOPR.
EPCA authorizes DOE to design test procedures that measure energy efficiency, energy use, water use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(3)) Representative average use of a dishwasher reflects, in part, a consumer using the dishwasher to achieve an acceptable level of cleaning performance. As discussed, the amended standards adopted in this direct final rule require the use of the test procedure at appendix C2, which includes a minimum cleaning performance threshold as a condition for a valid test cycle to determine if a dishwasher, when tested according to the DOE test procedure, “completely washes a normally soiled load of dishes,” so as to better represent consumer use of the product.
In response to the May 2023 NOPR, ASAP
Samsung supported DOE's revised cleaning index threshold value of 70 and commented that the minimum cleaning index would help incentivize dishwasher designs that do not require multiple runs to perform basic functionality, thereby avoiding increased energy use from running multiple cycles. (Samsung, No. 52 at p. 3) NEEA also commented in support of DOE's requirement of a certain cleaning performance level for the normal cycle to ensure dishwasher cleaning performance is maintained. NEEA noted that NEEA's dishwasher market research, previously shared confidentially with DOE, shows no correlation between cleaning performance and efficiency for current models. (NEEA, No. 53 at p. 2)
AHAM commented that DOE must further evaluate the impact of amended standards on performance despite the newly finalized cleaning performance metric in the test procedure. AHAM stated that the test procedure requirement alone is not sufficient to satisfy EPCA's requirement that standards not result in the unavailability of products with performance characteristics substantially the same as those currently available. AHAM commented that DOE has not presented any consumer data to demonstrate that its test and/or threshold are relevant to consumers nor has it produced sufficient data to demonstrate that its proposed standards will not result in a degradation of performance. (AHAM, No. 51 at p. 10).
Sub-Zero asserted that the degradation in dishwasher performance that will result from the proposed standards will affect consumer opinions of Sub-Zero's products and disproportionately harm the segment of the market in which Sub-Zero operates. (Sub-Zero, No. 47 at pp. 1-2)
CEI
Zycher commented that DOE claims the proposed standard would not reduce the utility or performance of the products under consideration in this rulemaking, but Zycher asserted that the
In response to comments from stakeholders over concerns about product cleaning performance for standard-size dishwashers at EL 2, DOE reiterates that the amended standards adopted in this direct final rule require the use of the test procedure at appendix C2, which includes a minimum cleaning performance threshold to determine if a dishwasher, when tested according to the DOE test procedure, “completely washes a normally soiled load of dishes,” so as to better represent consumer use of the product. That is, the new test procedure at appendix C2 ensures that the rated energy and water consumption of dishwashers are representative of a consumer-acceptable level of cleaning performance.
DOE further references its investigatory testing data that was presented in the January 2022 Preliminary Analysis, which demonstrated that standard-size dishwashers within the test sample could achieve the threshold cleaning performance finalized in the January 2023 TP Final Rule at all soil levels for efficiency levels up to EL 3. DOE also notes that feedback from some manufacturers during confidential interviews indicates that the adopted standards are achievable without impacting consumer utility. Additionally, DOE identified dishwasher models that are certified as 2024 ENERGY STAR Most Efficient,
Furthermore, as previously discussed, on February 14, 2024, DOE received a second joint statement from the same group of stakeholders that submitted the Joint Agreement in which the signatories reaffirmed the standards recommended in the Joint Agreement.
Accordingly, DOE has concluded, based not only on its newly adopted test procedure, but also on confirmatory testing data, confidential interviews, and ENERGY STAR's performance requirements, that the standards adopted here will not negatively impact dishwasher performance.
CEI
Whirlpool commented that it was concerned with any amended dishwashers energy conservation standards beyond EL 1. Whirlpool commented that the proposed rule would lessen the utility and performance of dishwashers, especially as compared to consumer expectations of dishwashers today, and the experiences from past dishwashers that consumers may have owned. (Whirlpool, No. 45 at pp. 3, 4) Whirlpool also commented that DOE should not take any action that would potentially degrade the performance or lower the utility of dishwashers, especially because dishwashers have among the lowest household penetration rates of any major appliance in U.S. households. (
AHAM asserted that further cost-effective efficiency gains may threaten performance and product functionality as opportunities for additional energy and water savings beyond those already achieved are severely diminished as products are near maximum efficiency under available technology. (AHAM, No. 51 at pp. 1-2) AHAM noted that while DOE does account for the cleaning performance outcome, DOE does not account for the relationship of cleaning performance to other performance elements in the dishwasher system including washing temperatures, length of washing cycles, types and amounts of detergent applied, and mechanics (power). (
Sub-Zero asserted that any standard beyond ENERGY STAR V. 6.0 (
CEI
DOE does not anticipate that significant design changes will be necessary for standard-size dishwashers to reach EL 2 because DOE's teardown analysis, described in chapter 5 of the direct final rule TSD, showed that existing products at EL 2 utilize the same design options as those at EL 1 with improved control strategies. Improved control strategies would allow manufacturers to more closely control water temperature and water fill volumes, thereby optimizing the wash cycle and minimizing losses. For these reasons, DOE does not expect any impact to utility or performance at the standards adopted in this direct final rule. As such, DOE's analysis indicates that it is possible to meet the adopted standards in this direct final rule without making significant design changes and without impacting a dishwasher's cleaning performance or other performance attributes, as discussed further in this section (regarding cleaning performance) and sections IV.H.2 (regarding impact on non-dishwasher cleaning patterns), V.B.4.b (regarding drying performance), and V.B.4.c (regarding cycle length) of this document.
Furthermore, in this direct final rule, DOE is adopting standards for dishwashers that are consistent with the standards recommended in the Joint Agreement. Additionally, as previously discussed, on February 14, 2024, DOE received a second joint statement from the same group of stakeholders that submitted the Joint Agreement in which the signatories reaffirmed the standards recommended in the Joint Agreement, and stated that they would not negatively affect features or performance, including cycle times.
Whirlpool asserted that DOE's proposed standards for dishwashers will be difficult for manufacturers to meet while meeting consumer demand for dishwashers capable of drying dishes thoroughly. (Whirlpool, No. 45 at p. 5) Whirlpool stated that the low final rinse temperatures and shorter heated drying durations that would be required to meet stringent energy conservation standards beyond EL 1 would make it increasingly difficult to completely dry all items in the dishwasher. Whirlpool stated that DOE must not set standards beyond EL 1, which would further reduce the total allowable energy usage that manufacturers can dedicate to effective drying performance and further reduce consumer satisfaction with drying performance. (
In response to concerns over drying performance, DOE expects existing drying options would continue to be available on dishwashers regardless of amended standards up to at least EL 3 because there are no unique drying technologies at EL2 and EL3. In the May 2023 NOPR TSD as well as in this final rule, DOE noted that dishwasher models could reach EL 2 or EL 3 with the same drying technology options on the regulated cycle as at EL 1 (
Furthermore, as previously discussed, on February 14, 2024, DOE received a second joint statement from the same group of stakeholders that submitted the Joint Agreement (including AHAM, of which Whirlpool is a member) in which the signatories reaffirmed the standards recommended in the Joint Agreement.
CEI
In this rulemaking, DOE considered dishwasher performance, including comments raised about cycle times. In the January 2022 Preliminary TSD, DOE provided data from its investigatory testing sample that determined cycle
Finally, as noted previously, the Fifth Circuit Court of Appeals recently remanded to DOE the January 2022 Rule for further consideration. As noted elsewhere in this document, DOE has published an RFI regarding short-cycle products. 89 FR 17338.
Whirlpool commented that water dilution and soil and detergent redeposition remain an issue under amended standards beyond EL 1, and that DOE does not cite new technology in its supporting analysis to indicate that this problem will be resolved. (Whirlpool, No. 45 at p. 5) As a result, Whirlpool asserted that according to its own test data, dishwasher cleaning performance will degrade under the proposed standards. (
As noted in the May 2023 NOPR, while DOE recognizes that poor water dilution can impact cleaning performance, as mentioned elsewhere in this document (as well as the May 2023 NOPR and January 2022 Preliminary TSD), DOE's testing and analysis indicates that satisfactory cleaning performance is achievable at all efficiencies. (S
CEI
DOE determines the lifetime of dishwashers from an analysis of historical shipments, AHS and RECS data.
Zycher asserted that energy savings
In regard to the purported adverse effects of reduction in energy consumption in terms of the quality of dishwasher performance, DOE does not expect any rebound effect due to reduced energy and water consumption in the standards case. More detailed discussion can be found in section IV.H.2 of this document regarding the rebound effect and in section V.B.4.a of this document regarding the standards' impact on the cleaning performance.
In response to comments regarding the significance of annualized LCC savings, as described in section IV.E of this document, DOE's LCC analysis captures the variability of consumer's life cycle costs. For example, DOE's energy and water use analysis relied on RECS 2020, which provides sample household's dishwasher usage frequency information ranging from one to 21 cycles per week. DOE also considered the variability of energy and water costs based on the sample household's geographic location, as well as the range of product lifetime. Taking into account the variability of those inputs allows DOE to observe the full range of LCC savings and to understand the distribution of results, enabling a more informed evaluation of the potential impact of the adopted standards. DOE presents all statistic results of LCC savings in chapter 8 of the direct final rule TSD. Based on the LCC savings estimates of 10,000 household samples, 97 percent of the sample households would either not be affected (11 percent) or experience a positive savings (86 percent). The weighted average LCC savings are $17 for the selected TSL which is significantly different from zero. In addition, DOE's decision on amended standards is not solely determined by LCC savings. While they play an important role, they may be considered alongside other critical factors, including the percentage of negatively impacted consumers, the simple payback period, and the overall impact on the manufacturers.
DOE considered any lessening of competition that would be likely to result from new or amended standards. As discussed in section III.E.1.d of this document, EPCA directs the Attorney General of the United States (“Attorney General”) to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination in writing to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. To assist the Attorney General in making this
Enhanced energy efficiency, where economically justified, improves the Nation's energy security, strengthens the economy, and reduces the environmental impacts (costs) of energy production. Reduced electricity demand due to energy conservation standards is also likely to reduce the cost of maintaining the reliability of the electricity system, particularly during peak-load periods. Chapter 15 of the direct final rule TSD presents the estimated impacts on electricity generating capacity, relative to the no-new-standards case, for the TSLs that DOE considered in this rulemaking.
Energy conservation resulting from potential energy conservation standards for dishwashers is expected to yield environmental benefits in the form of reduced emissions of certain air pollutants and greenhouse gases. Table V.19 provides DOE's estimate of cumulative emissions reductions expected to result from the TSLs considered in this rulemaking. The emissions were calculated using the multipliers discussed in section III.C of this document. DOE reports annual emissions reductions for each TSL in chapter 13 of the direct final rule TSD.
As part of the analysis for this rule, DOE estimated monetary benefits likely to result from the reduced emissions of CO
As discussed in section IV.L.2 of this document, DOE estimated the climate benefits likely to result from the reduced emissions of methane and N
DOE is well aware that scientific and economic knowledge about the contribution of CO
DOE also estimated the monetary value of the economic benefits associated with NO
Not all the public health and environmental benefits from the reduction of greenhouse gases, NO
The Secretary of Energy, in determining whether a standard is economically justified, may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII)) No other factors were considered in this analysis.
Table V.25 presents the NPV values that result from adding the estimates of the economic benefits resulting from reduced GHG and NO
When considering new or amended energy conservation standards, the standards that DOE adopts for any type (or class) of covered dishwasher must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i)) The new or amended standard must also result in significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
For this direct final rule, DOE considered the impacts of amended standards for dishwashers at each TSL, beginning with the maximum technologically feasible level, to determine whether that level was economically justified. Where the max-tech level was not justified, DOE then considered the next most efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.
To aid the reader as DOE discusses the benefits and/or burdens of each TSL, tables in this section present a summary of the results of DOE's quantitative analysis for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. These include the impacts on identifiable subgroups of consumers who may be disproportionately affected by a national standard and impacts on employment.
DOE also notes that the economics literature provides a wide-ranging discussion of how consumers trade off upfront costs and energy savings in the absence of government intervention. Much of this literature attempts to explain why consumers appear to undervalue energy efficiency improvements. There is evidence that consumers undervalue future energy savings as a result of (1) a lack of information; (2) a lack of sufficient salience of the long-term or aggregate benefits; (3) a lack of sufficient savings to warrant delaying or altering purchases; (4) excessive focus on the short term, in the form of inconsistent weighting of future energy cost savings relative to available returns on other investments; (5) computational or other difficulties associated with the evaluation of relevant tradeoffs; and (6) a divergence in incentives (for example, between renters and owners, or builders and purchasers). Having less than perfect foresight and a high degree of uncertainty about the future, consumers may trade off these types of investments at a higher than expected rate between current consumption and uncertain future energy cost savings.
In DOE's current regulatory analysis, potential changes in the benefits and costs of a regulation due to changes in consumer purchase decisions are included in two ways. First, if consumers forego the purchase of a product in the standards case, this decreases sales for product manufacturers, and the impact on manufacturers attributed to lost revenue is included in the MIA. Second, DOE accounts for energy and water savings attributable only to products actually used by consumers in the standards case; if a standard decreases the number of products purchased by consumers, this decreases the potential energy and water savings from an energy conservation standard. DOE provides estimates of shipments and changes in the volume of product purchases in chapter 9 of the direct final rule TSD. However, DOE's current analysis does not explicitly control for heterogeneity in consumer preferences, preferences across subcategories of products or specific features, or consumer price
While DOE is not prepared at present to provide a fuller quantifiable framework for estimating the benefits and costs of changes in consumer purchase decisions due to an energy conservation standard, DOE is committed to developing a framework that can support empirical quantitative tools for improved assessment of the consumer welfare impacts of appliance standards. DOE has posted a paper that discusses the issue of consumer welfare impacts of appliance energy conservation standards, and potential enhancements to the methodology by which these impacts are defined and estimated in the regulatory process.
Table V.26 and Table V.27 summarize the quantitative impacts estimated for each TSL for dishwashers. The national impacts are measured over the lifetime of dishwashers purchased in the 30-year period that begins in the anticipated year of compliance with amended standards (2027-2056). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results. The consumer operating savings are inclusive of energy and water. DOE is presenting monetized benefits of GHG emissions reductions in accordance with the applicable Executive Orders and DOE would reach the same conclusion presented in this notice in the absence of the social cost of greenhouse gases, including the Interim Estimates presented by the IWG. The efficiency levels contained in each TSL are described in section V.A of this document.
DOE first considered TSL 5, which represents the max-tech efficiency levels for both product classes. Specifically, for a standard-size dishwasher, this efficiency level includes design options considered at the lower efficiency levels (
The cumulative emissions reductions at TSL 5 are 38.89 Mt of CO
Using a 7-percent discount rate for consumer benefits and costs, health benefits from reduced SO
At TSL 5, the average LCC impact is a loss of $145 for standard-size dishwashers and a $4 savings for compact-size dishwashers. The simple payback period is 15.9 years for standard-size dishwashers and 5.5 years for compact-size dishwashers. The fraction of consumers experiencing a net LCC cost is 97 percent for standard-size dishwashers and 54 percent for compact-size dishwashers. Notably, for the standard-size product class, which as discussed represents 98 percent of the market, TSL 5 (which includes EL 4 for this product class) would increase the first cost by $178. This associated increase in first cost at TSL 5 for standard-size dishwashers could impact the number of new shipments by approximately less than 2 percent annually due to consumers shifting to extending the lives of their existing dishwashers beyond their useful life, repairing instead of replacing, or handwashing their dishes. In the national impact analysis, DOE modeled a scenario where part of this 2-percent of consumers forgoing the purchase of a new dishwasher due to price increases will substitute to handwashing. This results in a small increase in energy and water use, which is then subtracted from the energy and water savings projected to result from the amended standards at TSL5.
For the low-income consumer group, the average LCC impact is a loss of $29 for standard-size dishwashers and a savings of $62 for compact-size dishwashers. The simple payback period is 6.6 years for standard-size dishwashers and 2.3 years for compact-size dishwashers. The fraction of low-income consumers experiencing a net LCC cost is 46 percent for standard-size dishwashers and 26 percent for compact-size dishwashers. For the senior-only households consumer group, the average LCC impact is a loss of $159 for standard-size dishwashers and a loss of $14 for compact-size dishwashers. The simple payback period is 19.8 years for standard-size dishwashers and 6.8 years for compact-size dishwashers. The fraction of senior-only consumers experiencing a net LCC cost is 98 percent for standard-size dishwashers and 62 percent for compact-size dishwashers. For the consumer sub-group of well-water households, the average LCC impact is a loss of $162 for standard-size dishwashers and a loss of $19 for compact-size dishwashers. The simple payback period is 21.4 years for standard-size dishwashers and 6.9 years for compact-size dishwashers. The fraction of well-water consumers experiencing a net LCC cost is 98 percent for standard-size dishwashers and 63 percent for compact-size dishwashers.
At TSL 5, the projected change in INPV ranges from a decrease of $334.4 million to a decrease of $414.6 million, which corresponds to decreases of 54.5 percent and 43.7 percent, respectively. Industry conversion costs could reach $681.0 million at this TSL, as manufacturers work to redesign their portfolios of model offerings, transition their standard-size dishwasher platforms entirely to stainless steel tubs, and renovate manufacturing facilities to accommodate changes to the production line and manufacturing processes.
DOE estimates that less than 1 percent of dishwasher shipments currently meet the max-tech levels. Standard-size dishwashers account for approximately 98 percent of annual shipments. Of the 19 standard-size dishwasher OEMs, only one OEM, which accounts for approximately 2 percent of basic models in the CCD, currently offers products that meet the max-tech efficiencies required. All manufacturers interviewed, which together account for approximately 90 percent of the industry shipments, expressed uncertainty as to whether they could reliably meet the standard-size dishwasher max-tech efficiencies and the cleaning performance threshold and noted meeting max-tech would require a platform redesign and significant investment in tooling, equipment, and production line modifications. Many manufacturers would need to increase production capacity of stainless steel tub designs. Some manufacturers noted that a max-tech standard could necessitate new tub architectures.
For compact-size dishwashers, which account for the remaining 2 percent of annual shipments, DOE estimates that 14 percent of shipments currently meet the required max-tech efficiencies. Of the five compact-size dishwasher OEMs, two OEMs currently offer compact-size products that meet max-tech. At TSL 5, compact-size countertop dishwashers with four or more place settings and in-sink dishwashers with less than four place settings are not currently available in the market. Meeting TSL 5 is technologically feasible for those products; however, DOE expects that it would take significant investment relative to the size of the compact-size dishwasher market to redesign products to meet the max-tech efficiencies.
Based on the above considerations, the Secretary concludes that at TSL 5 for dishwashers, the benefits of energy and water savings, emissions reductions, and the estimated monetary value of the health benefits and climate benefits from emissions reductions would be outweighed by the negative NPV of consumer benefits and the impacts on manufacturers, including the large potential reduction in INPV. At TSL 5, a majority of standard-size dishwasher consumers (97 percent) would experience a net cost and the average LCC loss is $145 for this product class. Additionally, at TSL 5, manufacturers would need to make significant upfront investments to redesign product platforms and update manufacturing facilities. Some manufacturers expressed concern that they would not be able to complete product and production line updates within the 3-year conversion period. Consequently, the Secretary has concluded that TSL 5 is not economically justified.
DOE next considered TSL 4, which represents the highest efficiency levels providing positive LCC savings. TSL 4 comprises the gap-fill efficiency level between the ENERGY STAR V. 7.0 level and the ENERGY STAR V. 6.0 level (EL 2) for standard-size dishwashers and the max-tech efficiency level for compact-size dishwashers. Specifically, for a standard-size dishwasher, this efficiency level includes design options considered at the lower efficiency levels (
The cumulative emissions reductions at TSL 4 are 10.33 Mt of CO
Using a 7-percent discount rate for consumer benefits and costs, health benefits from reduced SO
At TSL 4, the average LCC impact is a savings of $17 for standard-size dishwashers and $4 for compact-size dishwashers. The simple payback period is 3.9 years for standard-size dishwashers and 5.5 years for compact-size dishwashers. The fraction of consumers experiencing a net LCC cost is 3 percent for standard-size dishwashers and 54 percent for compact-size dishwashers.
For the low-income consumer group, the average LCC impact is a savings of $21 for standard-size dishwashers and $62 for compact-size dishwashers. The simple payback period is 1.6 years for standard-size dishwashers and 2.3 years for compact-size dishwashers. The fraction of low-income consumers experiencing a net LCC cost is 2 percent for standard-size dishwashers and 26 percent for compact-size dishwashers. For the senior-only households consumer group, the average LCC impact is a savings of $13 for standard-size dishwashers and a loss of $14 for compact-size dishwashers. The simple payback period is 4.9 years for standard-size dishwashers and 6.8 years for compact-size dishwashers. The fraction of senior-only consumers experiencing a net LCC cost is 4 percent for standard-size dishwashers and 62 percent for compact-size dishwashers. For the consumer sub-group of well-water households, the average LCC impact is a savings of $12 for standard-size dishwashers and a loss of $19 for compact-size dishwashers. The simple payback period is 5.5 years for standard-size dishwashers and 6.9 years for compact-size dishwashers. The fraction of well-water consumers experiencing a net LCC cost is 4 percent for standard-size dishwashers and 63 percent for compact-size dishwashers.
At TSL 4, the projected change in INPV ranges from a decrease of $155.9 million to a decrease of $103.1 million, which corresponds to decreases of 21.2 percent and 14.0 percent, respectively. Industry conversion costs could reach $137.2 million at this TSL as some manufacturers of standard-size dishwashers redesign products to enable improved controls and better design tolerances and manufacturers of certain compact-size dishwashers redesign products to meet max-tech.
DOE estimates that approximately 10 percent of dishwasher shipments currently meet the TSL 4 efficiencies, of which approximately 9 percent of standard-size dishwasher shipments and 14 percent of compact-size dishwasher shipments meet the required efficiencies. Compared to max-tech, more manufacturers offer standard-size dishwashers that meet the required efficiencies. Furthermore, since the May 2023 NOPR, more manufacturers now offer standard-size dishwasher models that meet the TSL 4 efficiencies. DOE believes that the recent introduction of more high-efficiency standard-size dishwashers is largely in response to ENERGY STAR V. 7.0, which went into effect in July 2023. Of the 19 OEMs offering standard-size products, 16 OEMs offer products that meet the efficiency level required. For compact-size dishwashers, TSL 4 represents the same efficiency level as for TSL 5. Just as with TSL 5, compact-size countertop dishwashers with four or more place settings and in-sink dishwashers with less than four place settings are not currently available in the market at TSL 4 levels. Meeting TSL 4 is technologically feasible for those products; however, DOE expects that it would take significant investment (nearly $11 million) relative to the size of the compact-size dishwasher market (no-new-standards case INPV of $15.4 million) for them to meet the max-tech efficiencies.
Based upon the above considerations, the Secretary concludes that at TSL 4 for dishwashers, the benefits of energy and water savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the health benefits and climate benefits from emissions reductions would be outweighed by negative LCC savings for the senior-only households for the compact-size dishwasher product class and the high percentage of consumers with net costs for the compact-size dishwasher product class. Consequently, the Secretary has concluded that TSL 4 is not economically justified.
DOE then considered the Recommended TSL (
The cumulative emissions reductions at the Recommended TSL are 9.48 Mt of CO
Using a 7-percent discount rate for consumer benefits and costs, health benefits from reduced SO
At the Recommended TSL, the average LCC impact is a savings of $17 for standard-size dishwashers and $32 for compact-size dishwashers. The simple payback period is 3.9 years for standard-size dishwashers and 0.0 years for compact-size dishwashers. The fraction of consumers experiencing a net LCC cost is 3 percent for standard-size dishwashers and 0 percent for compact-size dishwashers.
For the low-income consumer group, the average LCC impact is a savings of $21 for standard-size dishwashers and $39 for compact-size dishwashers. The simple payback period is 1.6 years for standard-size dishwashers and 0.0 years for compact-size dishwashers. The fraction of low-income consumers experiencing a net LCC cost is 2 percent for standard-size dishwashers and 0 percent for compact-size dishwashers. For the senior-only households consumer group, the average LCC impact is a savings of $13 for standard-size dishwashers and $26 for compact-size dishwashers. The simple payback period is 4.9 years for standard-size dishwashers and 0.0 years for compact-size dishwashers. The fraction of senior-only consumers experiencing a net LCC cost is 4 percent for standard-size dishwashers and 0 percent for compact-size dishwashers. For the consumer sub-group of well water households, the average LCC impact is a savings of $12 for standard-size dishwashers and $23 for compact-size dishwashers. The simple payback period is 5.5 years for standard-size dishwashers and 0.0 years for compact-size dishwashers. The fraction of well water consumers experiencing a net LCC cost is 4 percent for standard-size dishwashers and 0 percent for compact-size dishwashers.
At the Recommended TSL, the projected change in INPV ranges from a decrease of $148.8 million to a decrease of $96.7 million, which corresponds to decreases of 20.2 percent and 13.1 percent, respectively. Industry conversion costs could reach $126.9 million at this TSL as some manufacturers redesign standard-size products to enable improved controls and better design tolerances.
DOE estimates that approximately 11 percent of dishwasher shipments currently meet the Recommended TSL efficiencies, of which approximately 9 percent of standard-size dishwasher shipments and 87 percent of compact-size dishwasher shipments meet the required efficiencies. At this level, the decrease in conversion costs compared to TSL 4 is entirely due to the lower efficiency level required for compact-size dishwashers, as the efficiency level required for standard-size dishwashers is the same as for TSL 4 (EL 2). All the compact-size dishwasher OEMs currently offer products that meet the Recommended TSL. At this level, DOE expects manufacturers of compact-size dishwashers would implement improved controls, which would likely require minimal upfront investment.
After considering the analysis and weighing the benefits and burdens, the Secretary has concluded that a standard set at the Recommended TSL for dishwashers would be economically justified. At this TSL, the shipments weighted-average LCC savings for both product classes is $17. The shipments weighted-average share of consumers with a net LCC cost for both product classes is 3 percent. For all consumer sub-groups, the LCC savings are positive and the net share of consumers with a net LCC cost is below 5 percent for both product classes. The FFC national energy and water savings are significant and the NPV of consumer benefits is $2.90 billion and $1.23 billion using both a 3-percent and 7-percent discount rate respectively. Notably, the benefits to consumers vastly outweigh the cost to manufacturers. At the Recommended TSL, the NPV of consumer benefits, even measured at the more conservative discount rate of 7 percent, is over eight times higher than the maximum estimated manufacturers' loss in INPV. The standard levels at the Recommended TSL are economically justified even without weighing the estimated monetary value of emissions reductions. When those emissions reductions are included—representing $0.54 billion in climate benefits (associated with the average SC-GHG at a 3-percent discount rate), and $0.94 billion (using a 3-percent discount rate) or $0.37 billion (using a 7-percent discount rate) in health benefits—the rationale becomes stronger still.
The adopted standards are applicable to the regulated cycle type (
The test procedure in appendix C2, which includes provisions for a minimum cleaning index threshold of 70 to validate the selected test cycle, will go into effect at such time as compliance is required with any amended energy conservation standards. At the Recommended TSL, both standard-size and compact-size dishwasher models achieving the efficiencies, as measured by appendix C2, including the cleaning performance threshold, are readily available on the market.
As stated, DOE conducts the walk-down analysis to determine the TSL that represents the maximum improvement in energy efficiency that is technologically feasible and economically justified as required under EPCA. The walk-down is not a comparative analysis, as a comparative analysis would result in the maximization of net benefits instead of energy savings that are technologically feasible and economically justified, which would be contrary to the statute. 86 FR 70892, 70908. Although DOE has not conducted a comparative analysis to select the amended energy conservation standards, DOE considers amended standard levels for dishwashers by grouping the efficiency levels for each product class into TSLs and evaluates all analyzed efficiency levels in its LCC analysis and all efficiency levels with positive LCC savings for the NIA and MIA. For both standard-size and compact-size dishwashers, the adopted standard level represents the maximum energy savings that do not result in a large percentage of consumers experiencing a net LCC cost. The efficiency levels at the adopted standard level result in positive LCC savings for both product classes, significantly reduce the number of consumers experiencing a net cost, and reduce the decrease in INPV and conversion costs to the point where DOE has concluded they are economically justified, as discussed for the Recommended TSL in the preceding paragraphs.
At the Recommended standard level for the standard-size product class, the average LCC savings are $17, the percentage of consumers experiencing a net cost is 3 percent (
Therefore, based on the previous considerations, DOE adopts the energy conservation standards for dishwashers at the Recommended TSL.
While DOE considered each potential TSL under the criteria laid out in 42 U.S.C. 6295(o) as discussed in the preceding paragraphs, DOE notes that the Recommended TSL for dishwashers adopted in this direct final rule is part of a multi-product Joint Agreement covering six rulemakings (refrigerators, refrigerator-freezers, and freezers; miscellaneous refrigeration products; consumer conventional cooking products; residential clothes washers; consumer clothes dryers; and dishwashers). The signatories indicate that the Joint Agreement for the six rulemakings should be considered as a joint statement of recommended standards, to be adopted in its entirety. As discussed in section V.B.2.e of this document, many dishwasher OEMs also manufacture refrigerators, refrigerator-freezers, and freezers, miscellaneous refrigeration products, consumer conventional cooking products, residential clothes washers, and consumer clothes dryers. Rather than requiring compliance with five amended standards in a single year (2027),
The amended energy conservation standards for dishwashers, which are expressed in EAEU and per-cycle water consumption, shall not exceed the values shown in Table V.28.
The benefits and costs of the adopted standards can also be expressed in terms of annualized values. The annualized net benefit is 1) the annualized national economic value (expressed in 2022$) of the benefits from operating products that meet the adopted standards (consisting primarily of operating cost savings from using less energy and water), minus increases in product purchase costs, and 2) the annualized monetary value of the climate and health benefits.
Table V.29 shows the annualized values for dishwashers under the Recommended TSL, expressed in 2022$. The results under the primary estimate are as follows.
Using a 7-percent discount rate for consumer benefits and costs and NO
Using a 3-percent discount rate for all benefits and costs, the estimated cost of the adopted standards for dishwashers is $14.0 million per year in increased equipment costs, while the estimated
DOE added a new paragraph (3) into section 10 CFR 430.32(f) to provide that each energy and water conservation for each dishwasher category is separate and severable from one another, and that if any energy or water conservation standard is stayed or determined to be invalid by a court of competent jurisdiction, the remaining standards shall continue in effect. This severability clause is intended to clearly express the Department's intent that should an energy or water conservation standard for any product class be stayed or invalidated, the other conservation standards shall continue in effect. In the event a court were to stay or invalidate one or more energy or water conservation standards for any product class as finalized, the Department would want the remaining energy or conservation standards as finalized to remain in full force and legal effect.
Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) and amended by E.O. 14094, “Modernizing Regulatory Review,” 88 FR 21879 (Apr. 11, 2023), 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, OIRA in the 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 this preamble, this final regulatory action is consistent with these principles.
Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this final regulatory action constitutes a “significant regulatory action” within the scope of section 3(f) of E.O. 12866. DOE has provided to OIRA an assessment, including the underlying analysis, of benefits and costs anticipated from the final regulatory action, together with, to the extent feasible, a quantification of those costs; and an assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, and an explanation why the planned regulatory action is preferable to the identified potential alternatives. These assessments are summarized in this preamble and further detail can be found in the technical support document for this rulemaking.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE is not obligated to prepare a regulatory flexibility analysis for this rulemaking because there is not a requirement to publish a general notice of proposed rulemaking under the Administrative Procedure Act.
Manufacturers of dishwashers must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for dishwashers, including any amendments adopted for those test
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Pursuant to the National Environmental Policy Act of 1969 (“NEPA”), DOE has analyzed this proposed action rule in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). DOE has determined that this rule qualifies for categorical exclusion under 10 CFR part 1021, subpart D, appendix B5.1 because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, none of the exceptions identified in B5.1(b) apply, no extraordinary circumstances exist that require further environmental analysis, and it meets the requirements for application of a categorical exclusion.
E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE 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 rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) Therefore, no further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this direct final rule meets the relevant standards of E.O. 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
DOE has concluded that this direct final rule may require expenditures of $100 million or more in any one year by the private sector. Such expenditures may include (1) investment in research and development and in capital expenditures by dishwashers manufacturers in the years between the direct final rule and the compliance date for the new standards and (2) incremental additional expenditures by consumers to purchase higher-efficiency dishwashers, starting at the compliance date for the applicable standard.
Section 202 of UMRA authorizes a Federal agency to respond to the content requirements of UMRA in any other statement or analysis that accompanies the direct final rule. (2 U.S.C. 1532(c)) The content requirements of section 202(b) of UMRA relevant to a private sector mandate substantially overlap the economic analysis requirements that apply under section 325(o) of EPCA and Executive Order 12866. The
Under section 205 of UMRA, DOE is obligated to identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a written statement under section 202 is required. (2 U.S.C. 1535(a)) DOE is required to select from those alternatives the most cost-effective and least burdensome alternative that achieves the objectives of the rule unless DOE publishes an explanation for doing otherwise, or the selection of such an alternative is inconsistent with law. As required by 42 U.S.C. 6295(m), this direct final rule establishes amended energy conservation standards for dishwashers that are designed to achieve the maximum improvement in energy efficiency that DOE has determined to be both technologically feasible and economically justified, as required by 6295(o)(2)(A) and 6295(o)(3)(B). A full discussion of the alternatives considered by DOE is presented in chapter 17 of the TSD for this direct final rule.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. Although this direct final rule would not have any impact on the autonomy or integrity of the family as an institution as defined, this rule could impact a family's well-being. When developing a Family Policymaking Assessment, agencies must assess whether: (1) the action strengthens or erodes the stability or safety of the family and, particularly, the marital commitment; (2) the action strengthens or erodes the authority and rights of parents in the education, nurture, and supervision of their children; (3) the action helps the family perform its functions, or substitutes governmental activity for the function; (4) the action increases or decreases disposable income or poverty of families and children; (5) the proposed benefits of the action justify the financial impact on the family; (6) the action may be carried out by State or local government or by the family; and whether (7) the action establishes an implicit or explicit policy concerning the relationship between the behavior and personal responsibility of youth, and the norms of society.
DOE has considered how the proposed benefits of this rule compare to the possible financial impact on a family (the only factor listed that is relevant to this rule). As part of its rulemaking process, DOE must determine whether the energy conservation standards contained in this final rule are economically justified. As discussed in section V.C.1 of this document, DOE has determined that the standards are economically justified because the benefits to consumers far outweigh the costs to manufacturers. Families will also see LCC savings as a result of this rule. Moreover, as discussed further in section V.B.1 of this document, DOE has determined that for the for low-income households, average LCC savings and PBP at the considered efficiency levels are improved (
Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), DOE has determined that this rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has concluded that this regulatory action, which sets forth amended energy conservation standards for dishwashers, is not a significant energy action because the standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this direct final rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (“OSTP”), issued its Final Information Quality Bulletin for Peer Review (“the Bulletin”). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the Bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.” 70 FR 2664, 2667.
In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and prepared a report describing that peer review.
The following standard appears in the amendatory text of this document and was previously approved for the locations in which it appears: AHAM DW-1-2020.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that the Office of Information and Regulatory Affairs has determined that this rule meets the criteria set forth in 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of this direct final rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
This document of the Department of Energy was signed on April 12, 2024 by Jeffrey Marootian, Principal Deputy 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
For the reasons set forth in the preamble, DOE amends part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
(f)
(i) Standard size dishwashers shall not exceed 307 kwh/year and 5.0 gallons per cycle. Standard size dishwashers have a capacity equal to or greater than eight place settings plus six serving pieces as specified in AHAM DW-1-2020 (incorporated by reference, see § 430.3) using the test load specified in section 2.3 of appendix C1 or section 2.4 of appendix C2 to subpart B of this part, as applicable.
(ii) Compact size dishwashers shall not exceed 222 kwh/year and 3.5 gallons per cycle. Compact size dishwashers have a capacity less than eight place settings plus six serving pieces as specified in AHAM DW-1-2020 (incorporated by reference, see § 430.3) using the test load specified in section 2.3 of appendix C1 or section 2.4 of appendix C2 to subpart B of this part, as applicable.
(2) All dishwashers manufactured on or after April 23, 2027, shall not exceed the following standard—
(3) The provisions of paragraph (f)(2) of this section are separate and severable from one another. Should a court of competent jurisdiction hold any provision(s) of this section to be stayed or invalid, such action shall not affect any other provision of this section.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS has reassessed the statutorily mandated findings supporting its January 19, 2021 final rule, “Regulations Governing Taking Marine Mammals Incidental to Geophysical Survey Activities in the Gulf of Mexico,” issued pursuant to the Marine Mammal Protection Act (MMPA), as the estimates of incidental take of marine mammals anticipated from the activities analyzed for the 2021 final rule were erroneous. NMFS has corrected this error and considered and incorporated other newly available and pertinent information relevant to the analyses supporting some of the findings in the 2021 final rule and the taking allowable under the regulations. There are no changes to the specified activities or the specified geographical region in which those activities would be conducted, nor to the original 5-year period of effectiveness. In light of the new information, NMFS presents new analyses supporting our affirmance of the negligible impact determinations for all species, and affirms that the existing regulations, which contain mitigation, monitoring, and reporting requirements, are consistent with the “least practicable adverse impact (LPAI) standard” of the MMPA.
Effective from May 24, 2024 through April 19, 2026.
Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
On January 19, 2021 (86 FR 5322), in response to a petition request from the Bureau of Ocean Energy Management (BOEM), NMFS issued a final rule under the MMPA, 16 U.S.C. 1361
Errors in the estimates of the maximum annual and 5-year take numbers, discovered during implementation of the ITR, preclude NMFS from issuing LOAs for the full amount of activity described by BOEM in the petition (as revised) and intended to be covered under the ITR. As a result, the utility of the ITR has been limited. NMFS has produced corrected take estimates, including updates to the best available science incorporated into the take estimation process (
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to 5 years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the LPAI on the affected species or stocks and their habitat (see the discussion below in the Mitigation section), as well as monitoring and reporting requirements. Under NMFS' implementing regulations for section 101(a)(5)(A), NMFS issues LOAs to individuals (including entities) seeking authorization for take under the activity-specific incidental take regulations (50 CFR 216.106).
Following is a summary of the major provisions of the current ITR regarding geophysical survey activities, which NMFS reaffirms through this rulemaking. The regulations contain requirements for mitigation, monitoring, and reporting, including:
• Standard detection-based mitigation measures, including use of visual and acoustic observation to detect marine mammals and shut down acoustic sources in certain circumstances;
• A time-area restriction designed to avoid effects to bottlenose dolphins in times and places believed to be of particular importance;
• Vessel strike avoidance measures; and
• Monitoring and reporting requirements.
See 50 CFR 217.180
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other means of effecting the LPAI on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the
On October 17, 2016, BOEM submitted a revised petition
NMFS published a notice of proposed rulemaking in the
On February 24, 2020, BOEM submitted a notice to NMFS of its “updated proposed action and action area for the ongoing [ITR] process[.]” This update consisted of removal of the area then under a Congressional leasing moratorium under the Gulf of Mexico Energy Security Act (GOMESA) (Sec. 104, Pub. L. 109-432)
While processing requests for individual LOAs under the ITR using the methodology for developing LOA-specific take numbers presented in the 2021 final rule, NMFS discovered that the estimated maximum annual incidental take and estimated total 5-year take from all survey activities that BOEM projected for its revised scope appeared to be in error, in that maximum annual incidental take was likely to be reached much sooner than anticipated for some species based on the level of activity described in BOEM's petition as revised in 2020. NMFS contacted BOEM regarding this, and BOEM determined that, when it reduced its scope of specified activity in March 2020 by removing the GOMESA moratorium area from its proposed action, it underestimated the level of take by inadvertently factoring species density estimates into its revised exposure estimates twice. Generally, this miscalculation caused BOEM to underestimate the total predicted exposures of species from all survey activities in its revision to the petition, most pronouncedly for those species with the lowest densities (
BOEM provided NMFS with an explanation of the miscalculation with regard to its incidental take estimate and revised take estimates, which is available online at:
Our proposed and final rule together provide analysis of the same activities and activity levels considered for the 2021 final rule, for the original 5-year period, and utilize the same modeling methodology described in the 2021 final rule. We incorporate the best available information, including consideration of specific new information that has become available since the 2021 rule was published, and updates to currently available marine mammal density information. We also incorporate expanded modeling results that estimate take utilizing the existing methodology but also consider the effects of using smaller (relative to the proxy source originally defined by BOEM) airgun arrays currently prevalent, as evidenced by LOA applications received by NMFS to date (see
There are no changes to the nature or level of the specified activities within or across years or to the geographic scope of the activity. Based on our assessment of the specified activity in light of the revised take estimates and other new information, we have determined that the 2021 ITR at 50 CFR 217.180
As to the negligible impact findings, the revised take numbers remain within those previously analyzed for most species. (Take numbers increased compared with the 2021 final rule for 4 species: Rice's whale (formerly Bryde's whale), Fraser's dolphin, rough-toothed dolphin, and striped dolphin. See tables 5 and 6. Because of the new category of “blackfish,” there is uncertainty on any change in the take numbers for the individual species that comprise that category, though collectively the take numbers for all species in the blackfish category remain within the levels previously analyzed.) However, we revisited the risk assessment framework used in analyses for the 2021 final rule for all species, as elements of the framework are dependent on information related to stock abundance,
The specified activity for this action is unchanged from the specified activity considered for the 2021 ITR, consisting of geophysical surveys conducted for a variety of reasons. BOEM's 2016 petition described a 10-year period of geophysical survey activity and provided estimates of the amount of effort by survey type and location. BOEM's 2020 update to the scope of activity included revisions to these level-of-effort projections, including reducing the projections to 5 years and removing activity assumed to occur within the areas removed from the scope of activity. Actual total amounts of effort (including by survey type and location) are not known in advance of receiving LOA requests, but take in excess of what is analyzed in this rule would not be authorized. Applicants seeking authorization for take of marine mammals incidental to survey activities outside the geographic scope of the rule (
Geophysical surveys in the GOM are typically conducted in support of hydrocarbon exploration, development, and production by companies that provide such services to the oil and gas industry. Broadly, these surveys include deep penetration surveys using large airgun arrays as the acoustic source; shallow penetration surveys using a small airgun array, single airgun, or other systems that may achieve similar objectives (here considered broadly as including other similar sources such as boomers and sparkers) as the acoustic source; or high-resolution surveys, which may use a variety of acoustic sources. Geophysical surveys and associated acoustic sources were described in detail in NMFS' 2018 notice of proposed rulemaking and in the notice of issuance for the 2021 final rule (83 FR 29212, June 22, 2018; 86 FR 5322, January 19, 2021). Please refer to those notices for detailed discussion of geophysical survey operations, associated acoustic sources, and the specific sources and survey types that were the subject of acoustic exposure modeling. Information provided therein remains accurate and relevant and is not repeated here. The use of these acoustic sources produces underwater sound at levels that have the potential to result in harassment of marine mammals. Marine mammal species with the potential to be present in the GOM are described below (see table 2).
The specified geographical region is illustrated below but generally speaking, survey activity may occur within U.S. territorial waters and waters of the U.S. Exclusive Economic Zone (EEZ) within the GOM (
The dates and duration of the specified activities considered for this rule are unchanged from the dates and duration for the 2021 final rule, which may occur at any time during the period of validity of the regulations (April 19, 2021, through April 18, 2026).
The specified geographical region for this action is unchanged from the one considered for the 2021 final rule. The OCS planning areas are depicted in Figure 1, and the specified geographical region (with the modeling zones and depicting the area withdrawn from leasing consideration) is depicted in Figure 2. NMFS provided a detailed discussion of the specified geographical region in the 2018 notice of proposed rulemaking.
The 2021 final rule allows for the authorization of take, through LOAs, incidental to use of airgun sources of different sizes and configurations (as well as similar sources). The supporting modeling considered two specific airgun array sizes/configurations (as well as a single airgun). Acoustic exposure modeling performed in support of the 2021 rule was described in detail in “Acoustic Propagation and Marine Mammal Exposure Modeling of Geological and Geophysical Sources in the Gulf of Mexico” and “Addendum to Acoustic Propagation and Marine Mammal Exposure Modeling of Geological and Geophysical Sources in the Gulf of Mexico” (Zeddies
Representative sources for the modeling include three different airgun arrays, a single airgun, and an acoustic source package including a CHIRP sub-bottom profiler in combination with multibeam echosounder and side-scan sonar. Two major survey types were considered: large-area (including 2D, 3D narrow azimuth (NAZ), 3D wide azimuth (WAZ), and coil surveys) and small-area (including single airgun surveys and high-resolution surveys; the single airgun was used as a proxy for surveys using a boomer or sparker). The nominal airgun sources used for analysis of the specified activity include a single airgun (90-cubic inch (in
While it was necessary to identify representative sources for the purposes of modeling take estimates for the analysis for the 2021 rule, the analysis is intended to be, and is appropriately, applicable to takes resulting from the use of other sizes or configurations of airguns (
While these descriptions reflect existing technologies and current practice, new technologies and/or uses of existing technologies may come into practice during the remaining period of validity of these regulations. As stated in the 2021 final rule (86 FR 5322, 5442; January 19, 2021), NMFS will evaluate any such developments on a case-specific basis to determine whether expected impacts on marine mammals are consistent with those described or referenced in this document and, therefore, whether any anticipated take incidental to use of those new technologies or practices may appropriately be authorized under the existing regulatory framework. See Letters of Authorization for additional information.
As noted above, estimated levels of effort are unchanged from those considered in the 2021 final rule. Please see the 2021 final rule notice for additional detailed discussion of those estimates and of the approach to delineating modeling zones (shown in Figure 2).
In support of its 2020 revision of the scope of the rule, BOEM provided NMFS with revised 5-year level of effort predictions and associated acoustic exposure estimates. Table 1 provides those effort projections for the 5-year period, which are unchanged. This table corrects table 2 in NMFS' notice of issuance of the 2021 ITR, which erroneously presented the difference in activity levels between the 2018 proposed ITR and the revised levels after GOMESA removal. The correct information was used in the take calculations, and was concurrently made available to the public via BOEM's 2020 notice to NMFS of its updated scope.
The preceding description of the specified activity is a summary of critical information. The interested reader should refer to the 2018 notice of proposed rulemaking (83 FR 29212, June 22, 2018), as well as BOEM's petition (with addenda) and Programmatic Environmental Impact Statement (PEIS), for additional detail regarding these activities and the region.
NMFS published a notice of proposed rulemaking in the
During the 30-day comment period, we received 22,832 comment letters. Of this total, we determined that approximately 71 comment letters represented unique submissions, including 6 letters from various organizations (described below) and 65 unique submissions from private citizens. The remaining approximately 22,756 comment letters followed a generic template format in which respondents provided comments that were identical or substantively the same. (For purposes of counting, we considered comments using this template as a single unique submission.)
A letter was submitted jointly by the EnerGeo Alliance (formerly the International Association of Geophysical Contractors), the American Petroleum Institute, the National Ocean Industries Association, and the Offshore Operators Committee (hereafter, the “Associations”). A separate letter was submitted jointly by the Natural Resources Defense Council (NRDC), Association of Zoos and Aquariums, Center for Biological Diversity, Earthjustice, Healthy Gulf, and Surfrider Foundation (hereafter, “NRDC”). Additional letters were submitted by the following: Beacon Offshore Energy (Beacon), BOEM, Chevron USA Inc. (Chevron), and the Marine Mammal Commission (MMC). We note that several of these entities refer to, or restate, comments they provided in response to NMFS' 2018 proposed rulemaking—in some cases appending the entirety of the 2018 letters to the current comment letters, and stating that the 2018 comments are incorporated to the current comments. All comments received in response to the 2018 proposed rulemaking were previously responded to by NMFS (86 FR 5322, January 19, 2021). Where new information or context warranted additional response to the prior comments, we provide it here. However, in most cases no new response is required, and we rely on our prior responses in the 2021 final rule.
NMFS has reviewed all public comments received on the 2023 proposed rule. All relevant comments and our responses are described below. All comments received are available online at:
A large majority of commenters, including all of those following the aforementioned generic template, expressed general opposition towards oil and gas industry geophysical survey activity, suggesting that NMFS has decision-making authority regarding whether such surveys occur. Numerous letters also provide commentary regarding climate change and the relative merits of U.S. use of various sources of energy. As these comments are outside the scope of NMFS' authority and NMFS' decision under the MMPA, we do not respond further. NMFS' action here concerns only the authorization of marine mammal take incidental to projected geophysical surveys, provided that the required analyses, findings, and other requirements have been satisfied. Jurisdiction concerning decisions to allow the surveys themselves rests solely with BOEM, pursuant to its authority under the Outer Continental Shelf Lands Act (OCSLA). We also note that this rulemaking addresses only marine mammals (and their habitat). As such, effects of the surveys on other aspects of the marine environment are not relevant to NMFS' analyses and authorities under section 101(a)(5)(A) of the MMPA.
In addition, numerous commenters (including all of those following the aforementioned generic template) make unsupported assertions regarding the potential impacts of oil and gas industry geophysical survey activity, stating that such activity can deafen and cause the death of marine mammals. As the commenters provide no evidence in support of these assertions, and NMFS is not aware of any such evidence, we do not respond further to these comments.
NMFS further explained in its 2023 proposed rule that “all aspects of the modeling (including source, propagation, and animal movement modeling) are the same as described in Zeddies
The Associations do not describe any specific model inputs or outputs or other information that they believe to have been withheld, or specifically describe any assumptions or methodology that they believe has been insufficiently explained. However, during the public comment period, EnerGeo contacted NMFS to request the following:
• Model outputs, specifically the modeled sound pressure levels across depth and range for all modeled radials for modeled seismic arrays and modeling locations/seasons.
Upon receipt of this request, NMFS contacted JASCO to ascertain the availability of the requested products (which are specific output files rather than the descriptions of model outputs that are provided in the modeling report). NMFS then communicated with EnerGeo that JASCO could provide the requested sound field files, but noted that there are several thousand files for each array volume, and that the files are in a proprietary format. Therefore, NMFS explained to EnerGeo that the request would require coordination between EnerGeo and JASCO in order to produce the requested volume of files in a format that might be useful to EnerGeo, and requested EnerGeo's response on how to conduct the necessary coordination. EnerGeo did not respond.
• At each modeling location, the specific geographic location of the centerpoint, the number of radials modeled, and the specific inputs used in the modeling including bathymetry, sound speed profiles, and the geoacoustic parameters of the seabed, as well as the sea surface assumption (sea state or other assumptions).
Regarding this request, NMFS reiterated to EnerGeo the explanation provided in the proposed rule: all of the requested information remains unchanged from the original modeling effort and is described in the original modeling report. However, NMFS noted that if EnerGeo could specify any needed information that it could not find in the modeling report, NMFS would work to provide it. EnerGeo did not respond.
• Summarized metrics on R
Regarding this request, NMFS explained to EnerGeo that JASCO did not specifically calculate R
NMFS reiterates that the Associations provide no specific information regarding any aspect of the modeling that they believe has been inappropriately withheld from the public. Moreover, NMFS made a good faith effort to respond to EnerGeo's request for information during the public comment period, and EnerGeo neither followed up with additional questions nor responded to NMFS' offer to facilitate a working interaction with the modelers to obtain requested data files. NMFS has provided all details regarding model inputs and outputs, as well as modeling assumptions and methods, and has provided the public with a meaningful opportunity for review. NMFS has further responded to all comments, both here and in its 2021 final rule.
As in their 2018 public comment letter, the Associations inappropriately characterize statements from NMFS' notice of proposed rulemaking as admissions of purposeful conservativeness. The Associations refer to NMFS' description of the take numbers subject to analysis for purposes of the negligible impact determinations in this rule. In contrast to the 2018 proposed rule, for which NMFS used modeling of one airgun array, for this final rule, NMFS considered acoustic exposure modeling results from three different airgun arrays, and stated simply that, for each species, the maximum take number resulting from analysis of the three different arrays was subject to evaluation as part of NMFS' negligible impact determinations. This approach ensures that the potential takes of each species that could occur from survey effort this final rule is designed to cover—surveys that may involve various airgun arrays—are appropriately analyzed to enable issuance of LOAs for those activities with reasonably accurate take estimates.
The Associations also refer again to the 2017 Acoustic Exposure Model Variable Analysis (Zeddies
• Airgun array size (including total volume, number of array elements, element air pressure, array geometry and spacing) used in source and propagation models;
• Acoustic threshold criteria and associated weighting used to calculate exposures;
• Animal densities used for adjusting simulated computer model exposures to potential real-world animal exposures;
• Natural aversive behaviors of marine mammals; and
• The addition of mitigative measures that lessen the potential for animals' exposure to threshold levels of seismic sound.
The primary finding of the Zeddies
We addressed the Associations' investigation of quantitative consideration of animal aversion and mitigation effectiveness in responses to comments provided in the 2021 final rule. In summary, these factors were not quantified in the modeling because there is too much inherent uncertainty regarding the effectiveness of detection-based mitigation for these activities to support any reasonable quantification of its effect in reducing injurious exposure, and there is too little information regarding the likely level of onset and degree of aversion to justify its use in the modeling via precise quantitative control of animat movements (as compared to post-hoc adjustment of the modeling results, as was done in the 2021 final rule and carried forward here). Importantly, while aversion and mitigation implementation are expected to reduce somewhat the modeled levels of injurious exposure, they would not be expected to result in any meaningful reduction in assumed exposures resulting in Level B harassment, nor in total takes by harassment, as any averted injurious (Level A harassment) takes would be appropriately changed to behavioral disturbance (Level B harassment) takes. With regard to marine mammal density information, NMFS has used in both the 2021 final rule and this rule the best available scientific information.
NMFS previously responded to the Associations' comments that the selected array (8,000 in
With regard to the large number of other data inputs and/or choices made in the modeling, the Associations do not specifically identify any issue where they believe a meaningful data or process error was made in the modeling. NMFS reiterates its conclusion that, while the modeling required that a number of assumptions and choices be made by subject matter experts, these are reasonable, scientifically acceptable choices. These choices do not represent a series of “overly conservative, worst-case assumptions” that, as the Associations state, result in a “compounding error yielding unrealistic calculations lacking scientific basis.” To the extent that the results of the modeling may be conservative, they are the most credible, science-based information available at this time.
NMFS reiterates its conclusion that the modeling effort incorporated representative sound sources and projected survey scenarios (based on the best available information obtained by BOEM, as supplemented by NMFS to address additional airgun sizes that are reasonably likely based on LOA applications to date—which alleviates the primary source of conservativeness about which NMFS and the Associations find agreement), physical and geological oceanographic parameters at multiple locations within the GOM and during different seasons, the best available information regarding marine mammal distribution and
Because it remains relevant, we quote the MMC's 2018 public comment on this topic: “Complex sound propagation and animat modeling was used to estimate the numbers of potential takes from various types of geophysical surveys in the Gulf. NMFS received comments from industry operators suggesting that the modeling results were overly conservative [. . .]. However, the Commission has reviewed the modeling approach and parameters used to estimate takes and believes they represent the best available information regarding survey scenarios, sound sources, physical and oceanographic conditions in the Gulf, and marine mammal densities and behavior. As such, the Commission agrees with NMFS and BOEM that the resulting take estimates were conservative but reasonable, thereby minimizing the likelihood that actual takes would be underestimated.”
Survey effort (kilometers of survey trackline) was partitioned into segments within a grid of cells and matched to physical oceanographic parameter values within each cell. All available oceanographic and physiographic variables were included in the model selection for Rice's whales. The selected model included water depth, chlorophyll-a concentration, geostrophic velocity, bottom temperature, and bottom salinity, and indicated that Rice's whale density was highest in waters between 100-400 meter (m) depth with intermediate bottom temperatures between 10-19 °C and intermediate surface chlorophyll-a concentrations,
We agree that ideally, passive acoustic data could be incorporated to the spatial density models to improve the model predictions. However, incorporation of visual and acoustic data to spatial density models remains cutting edge science, and such models have only rarely been produced. NRDC refers to Roberts
We note that the same areas in which the acoustic detections were made are predicted by the spatial density model as being suitable Rice's whale habitat (see
NMFS acknowledges that supporting technical reports related to the marine mammal density data used in the exposure modeling informing this rule were not publicly available at the time that NMFS' proposed rule was released to the public for review. NMFS did not have discretion over the timeline for release of supporting technical reports,
The NOAA Information Quality guidelines expressly address and allow for the use of supporting information which cannot be disclosed. In this case, the supporting information (
To determine the abundance and spatial distribution of marine mammals in the GOM, NMFS' SEFSC conducts visual line transect surveys aboard NOAA research vessels or aircraft, with survey effort designed to support estimation of abundance for all marine mammals in the GOM. Similar survey efforts and abundance estimation have been ongoing in the GOM since the early 1990s and have been subject to both peer and other public review on numerous occasions.
In addition to abundance, line transect survey data can be used to develop habitat models that map animal density as a function of environmental conditions. Historically, distance sampling methodology (Buckland
In summary, the modeling effort follows accepted, state of the science density modeling procedures (Rappucci
Predictions from the updated density models were publicly released in July 2022, and we note that the authors of the previously best available density models (Roberts
We also note that it is not unusual for updated density information to be released without supporting technical reports. The latest major update to the Roberts
Further, concerning the MMC's reference to the actual density values and associated CVs used in the take estimation process, this information was provided upon request during the public comment period to both the MMC and NRDC as well as to the Associations. (We note that the specific density values used in the prior modeling effort were included in the comprehensive modeling report. As minimal new information was associated with the current updated effort, the updated values were not included in the brief modeling memorandum, but could be duplicated by the public using available information.) None of the aforementioned entities included any comments regarding the specific density values and associated CVs used in the take estimation process in their comment letters. NMFS does not agree that the recommendations to allow for an additional 30-day comment period for the public to review supplementary technical reports in advance of issuing the final rule are warranted.
In summary, there is no information supporting identification of this area (
In addition, we note the MMC's statement in support of this recommendation that “[i]t is not clear from the information presented by NMFS how much the increase in the numbers of takes is attributed to geophysical surveys that are expected to occur in the expanded core distribution area [. . .].” As described in the 2023 proposed rule, changes in take estimates for all species result from (1) correction of BOEM's errors in calculating updated estimated take following its revision of scope for the 2021 final rule; (2) revisions to species definition files governing animat behavior during animal movement modeling; and (3) new density information for all species other than Fraser's dolphin and rough-toothed dolphin. In addition, for Rice's whale only, propagation modeling of a new array specification produced the greatest values for estimated instances of take.
The process for estimating take numbers did not involve placement of projected survey effort in specific locations, such as the portion of the core distribution area that overlaps the geographic scope of the ITR. Instead, within each modeling zone, acoustic source and propagation modeling was performed using zone-specific environmental parameters, following which animal movement modeling results in zone-specific exposure estimates for animats. These estimates were then scaled to real-world values using zone-specific density estimates, generating 24-hour exposure estimates that were then scaled to totals based on zone-specific level of effort projections (see table 1). No survey effort is specifically assumed to occur within the portion of the core distribution area that overlaps the area within scope of the ITR.
The MMC goes on to state that “the year-round restriction on geophysical surveys in the Rice's whale core distribution area was the basis of NMFS's negligible impact determination for the final rule.” This is incorrect. As one consideration in support of our negligible impact determination for Rice's whales, we noted that no survey activity would occur in the northeastern GOM core habitat area (please see discussion provided in the Description of Marine Mammals in the Area of the Specified Activities section regarding the distinction between Rice's whale core habitat and the core distribution area discussed herein). This was not the result of any restriction, but rather, BOEM's removal of the GOMESA area from the scope of the rule.
The Associations suggest NMFS has claimed that the Rice's whale population has declined. NMFS made no such statement in the 2023 proposed rule. NMFS referenced the low population abundance of the Rice's whale while citing modeling results relating to the quantification of injury from the DWH spill. The Associations are incorrect in stating that NMFS has made erroneous statements regarding the modeling results concerning quantification of injury. NMFS refers the Associations to the detailed discussion provided in the 2018 proposed rule, as well as to DWH NRDA Trustees (2016), which presents the estimates of concern to the Associations (
Perhaps the most important new information is the acoustic detection of Rice's whales in areas along the shelf break in the central and western GOM, which for the first time demonstrates year-round Rice's whale occurrence in areas outside of the previously identified core habitat. Soldevilla
Additional information regarding Rice's whale acoustic detections has become available since publication of the 2023 proposed rule. A subsequent study placed acoustic recorders in shelf break waters in the same central GOM area, and added a location in the western GOM offshore of Texas (Soldevilla
The rate of call detections throughout the year is considerably higher in the eastern GOM than at the central GOM sites where calls were most commonly detected, with at least 8.3 calls/hour among 4 eastern GOM sites over 110 deployment days (Rice
Caution should always be used when interpreting passive acoustic detection results because call detection rates are not necessarily correlated with the density or abundance of whales in a given area. Several factors influence call detection rates, including the rate at which whales call (which can vary by demographic group, individual, time of year, etc.) and the range over which calls can be detected (which is affected by auditory masking from competing noise sources, site characteristics and other factors) (Erbe
Regarding the suggestion that NMFS has not adequately considered habitat in its consideration of mitigation, we disagree. Habitat value is informed by marine mammal presence and use, and the available data can support the consideration and discussion of impacts to (and mitigation for) both marine mammals and their habitat simultaneously. The discussion above clearly considers physical features that can drive habitat use (
In summary, the newly available data related to marine mammal presence and habitat were considered under the LPAI standard, and we concluded additional mitigation for Rice's whale was not warranted under that standard.
To bolster that discussion, we turned to the same sources of data referenced in the RIA in analysis of potential closure areas considered therein (see
Regarding NRDC's suggestions concerning OCSLA—a statute administered by BOEM—NMFS' statutory obligations arise under the MMPA (with associated requirements under the Endangered Species Act, National Environmental Policy Act, and Administrative Procedure Act, among others). NMFS has no statutory obligation relative to OCSLA. Similarly, NMFS' obligations under the MMPA require that we prescribe the means of effecting the LPAI on the affected species or stock and their habitat, which we have done here. E.O. 13990 does not require NMFS to consider the social cost of carbon in determining whether potential mitigation requirements are practicable under the MMPA.
Regarding the suggestion to allow some surveys but prohibit others, section 101(a)(5)(A) of the MMPA requires NMFS to make a determination that the take incidental to a “specified activity” will have a negligible impact on the affected species or stocks of marine mammals, and will not result in an unmitigable adverse impact on the availability of marine mammals for taking for subsistence uses. NMFS' implementing regulations require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals. 50 CFR 216.104(a)(1). Thus, the “specified activity” for which incidental take coverage is being sought under section 101(a)(5)(A) is generally defined and described by the applicant. Here, BOEM is the applicant for the ITR in support of industry operators, and we are responding to the specified activity as described in that petition (and making the necessary findings on that basis). BOEM's petition made no distinction between surveys that may be speculative or otherwise fall into a category of surveys that NRDC suggests should be prohibited, and those that are not.
Moreover, NRDC does not describe any useful metric for determining which surveys should be allowed, aside from vague reference to “surveys undertaken by leaseholders to develop their lease blocks.” The MMC similarly does not provide any useful definition of the “speculative” surveys it believes NMFS should prohibit, aside from stating that it believes these are typically “2D or similar surveys.” No 2D surveys have been conducted in the GOM during the period of time since the ITR became effective. During that time, NMFS has issued over 50 LOAs. Less than 10 of these were issued to what are sometimes referred to as “multi-client operators,” or companies that conduct surveys in order to acquire data that may be sold to one or more development companies. Regardless of the small proportion of LOAs issued to such companies, the surveys conducted under those LOAs are not necessarily what the commenters may refer to as “speculative,” but instead may be designed to cover multiple lease areas and therefore provide data to multiple leaseholders. The suggestions are not sufficiently developed to allow for adequate consideration.
Regarding vessel strike avoidance measures, NRDC does not specify to what measures it is referring. However, the ITR already contains a suite of vessel strike avoidance measures that apply wherever survey activity is occurring.
Finally, NRDC does not describe any useful scheme by which “lowest practicable source levels within the whales' communication frequencies” might be defined. Further, NMFS previously responded to a similar, if more detailed, comment in its 2021 final rule (86 FR 5387, January 19, 2021).
NRDC is incorrect that use of the median value is inappropriate or that it has “no biological basis.” We note that mean (or average) values can be more heavily skewed by outliers with small sample size than median values. Thus, we chose the median as a better descriptor of central tendency, which is a more appropriate perspective for the risk analysis. (We also rounded up values of .5 (
As we discussed in response to NRDC's public comment on the 2018 proposed rule (January 19, 2021, 86 FR 5322, 5359), one of the fundamental values of the analytical framework is that it is structured in a spatially explicit way that can be applied at multiple scales, based on the scope of the action and the information available, to inform an assessment of the risk associated with the activity (or suite of activities). This allows one to generate overall risk ratings while also evaluating risk on finer scales. In this case, severity ratings were generated on the basis of seven different GOM zones, allowing an understanding not only of the relative scenario-specific risk across the entire GOM, as is demanded for this analysis, but also to better understand the particular zones where risk may be relatively high (depending on actual future survey effort) and what part of the stock's range may be subject to relatively high risk.
NRDC cites the Expert Working Group (EWG) Report in support of its comment, stating it was “[telling]” that “the [EWG] Report did not contrive a Gulf-wide risk assessment” and that “doing so would have belied the very different purpose underlying its design: a relative risk assessment across multiple species and geographies.” Although the initial EWG report (Southall
NRDC continues to suggest (as it did in its 2018 comment letter) that the risk ratings are the primary or even sole basis for NMFS' negligible impact determinations, and repeats the assertion that NMFS has erroneously used the relativistic assessment presented in the EWG report as the basis for the negligible impact determination, thereby incorrectly applying the EWG report as though it evaluated absolute risk. These claims are incorrect. We reiterate our 2021 response to NRDC's previous comments on these topics (January 19, 2021, 86 FR 5322, 5359): the EWG analysis is an important component of the negligible impact analysis, but is not the sole basis for our determination. While the EWG analysis comprehensively considered the spatial and temporal overlay of the activities and the marine mammals in the GOM, as well as the number of takes predicted by the described modeling, there are details about the nature of any “take” anticipated to result from these activities that were not considered directly in the EWG analysis and which warrant explicit consideration in the negligible impact analysis. Accordingly, NMFS' analysis considers the results of the EWG analysis, the effects of the required mitigation, and the nature and context of the takes that are predicted to occur. NMFS' analysis also explicitly considers the effects of predicted Level A harassment, duration of Level B harassment events, and impacts to marine mammal habitat, which respectively were not integrated into or included in the EWG risk ratings. These components of the full analysis, along with any germane species or stock-specific information, are integrated and summarized for each species or stock in the Species and Stock-specific Negligible Impact Analysis Summaries section of the negligible impact analysis.
While the EWG framework produces relativistic risk ratings, its components consist of absolute concepts, some of which are also absolutely quantified (
Table 2 lists all species with expected potential for occurrence in the GOM and summarizes information related to the population or stock, including potential biological removal (PBR). PBR, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population, is considered in concert with known sources of ongoing anthropogenic mortality (as described in NMFS' stock assessment reports (SAR)). For status of species, we provide information regarding U.S. regulatory status under the MMPA and Endangered Species Act (ESA). The affected species and stocks have not changed from those described in the notice of issuance of the 2021 rule. We incorporate information newly available since that rule, including updated information from NMFS' SARs, but do not otherwise repeat discussion provided in this section of the 2018 proposed rule and 2021 final rule.
In some cases, species are treated as guilds (as was the case for the analysis conducted in support of the 2021 ITR). In general ecological terms, a guild is a group of species that have similar requirements and play a similar role within a community. However, for purposes of stock assessment or abundance prediction, certain species may be treated together as a guild because they are difficult to distinguish visually and many observations are ambiguous. For example, NMFS' GOM SARs assess stocks of
The use of guilds in the 2021 final rule followed the best available density information at the time (
Twenty-one species (with 24 managed stocks) have the potential to co-occur with the prospective survey activities. For detailed discussion of these species, please see the 2018 proposed rule. In addition, the West Indian manatee (
All values presented in table 2 are the most recent available at the time the analyses for this notice were completed, including information presented in NMFS' 2022 SARs (the most recent SARs available at the time of publication) (available online at:
In table 2 above, we report two sets of abundance estimates: those from NMFS' SARs and those predicted by habitat-based cetacean density models. Please see footnote 3 of table 2 for more detail. NMFS' SAR estimates are typically generated from the most recent shipboard and/or aerial surveys conducted. GOM oceanography is dynamic, and the spatial scale of the GOM is small relative to the ability of most cetacean species to travel. U.S. waters only comprise about 40 percent of the entire GOM, and 65 percent of GOM oceanic waters are south of the U.S. EEZ. Studies based on abundance and distribution surveys restricted to U.S. waters are unable to detect temporal shifts in distribution beyond U.S. waters that might account for any changes in abundance within U.S. waters. NMFS' SAR estimates also in some cases do not incorporate correction for detection bias. Therefore, for cryptic or long-diving species (
The model-based abundance estimates represent the output of predictive models derived from multi-year observations and associated environmental parameters and which incorporate corrections for detection bias (the same models and data from which the density estimates are derived). Incorporating more data over multiple years of observation can yield different results in either direction, as the result is not as readily influenced by fine-scale shifts in species habitat preferences or by the absence of a species in the study area during a given year. NMFS' SAR abundance estimates show substantial year-to-year variability in some cases. Incorporation of correction for detection bias should systematically result in greater abundance predictions. For these reasons, the model-based estimates are generally more realistic and, for the purposes of assessing estimated exposures relative to abundance—used in this case to understand the scale of the predicted takes compared to the population—NMFS generally believes that the model-based abundance predictions are the best available information and most appropriate because they were used to generate the exposure estimates and therefore, provide the most relevant comparison.
NMFS' 2021 final rule provided take estimates separately for the melon-headed whale, false killer whale, pygmy killer whale, and killer whale. This rule provides a single take estimate for those four species grouped together as the blackfish. This approach was dictated by the best available science. The model authors determined it necessary to aggregate the few sightings data available for each of the four species with sightings data that could not be resolved to the species level in order to develop a density model, as there were not sufficient confirmed sightings of individual species to create individual spatial models (Garrison
NMFS does not have sufficient information to support apportioning the blackfish takes to the constituent species, but we note that the sum of annual average evaluated take for the 4 species in the 2021 final rule is 64,742, while the new annual average take estimate for blackfish (using the updated density information) is 55,441.
NMFS' ability to issue LOAs under the 2021 rule to date has been limited specifically with regard to killer whales, because BOEM's error most severely affected killer whale take numbers. (Evaluated Rice's whale takes were similarly affected, but were generally not implicated in LOA requests based on the location of planned surveys.) Effects to killer whales from the specified activity have not presented particular concern in a negligible impact context, even considering the original take numbers evaluated in NMFS' 2018 proposed rule (annual average take of 1,160), which produced overall scenario-specific risk ratings of low to moderate. Evaluated risk is similar across the 2018 proposed rule and this rule.
Further, we note that we make a conservative assumption in this rule in the application of the risk assessment framework to blackfish. Risk is a product of severity and vulnerability. While severity is based on density and abundance and is, therefore, reflective of the new density information, vulnerability is based on species-specific factors and is different for the four species. We applied the highest vulnerability score of the four to combine with the severity to get the overall risk rating for the group. Please see Negligible Impact Analysis and Determinations for additional discussion.
As part of our analyses for incidental take rules, we consider any known areas of importance as marine mammal habitat. We also consider other relevant information, such as unusual mortality events (UME) and the 2010 DWH oil
As noted above in table 2, the former GOM Bryde's whale has been described as a new species, Rice's whale (Rosel
NOAA's ESA status review of the former GOM Bryde's whale (Rosel
NMFS SEFSC subsequently developed a description of what is referred to as a Rice's whale “core distribution area”
Our knowledge of Rice's whale distribution is based on a combination of historic and contemporary sightings, passive acoustic detections, and spatial modeling. The evidence collected from these methods indicates that Rice's whales occupy waters along the continental shelf and slope and adjacent waters throughout the U.S. GOM, and in particular, waters between 100 and 400 m deep. The widest swath of habitat occurs in the species' core distribution area in the northeastern GOM, south and west of Alabama and Florida. However, a contiguous strip of habitat also extends south of the core distribution area toward the Florida Keys, and westward along the continental shelf and slope offshore of Mississippi, Louisiana, and Texas (Garrison
In NMFS' 2018 proposed rule (83 FR 29212, June 22, 2018), this section included a comprehensive summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat, including general background information on sound and specific discussion of potential effects to marine mammals from noise produced through use of airgun arrays. NMFS provided a description of the ways marine mammals may be affected by the same activities considered herein, including sensory impairment (permanent and temporary threshold shifts and acoustic masking), physiological responses (particularly stress responses), behavioral disturbance, or habitat effects, as well as of the potential for serious injury or mortality. The 2021 final rule (86 FR 5322, January 19, 2021) provided updates to the discussion of potential impacts, as well as significantly expanded discussion of certain issues (
The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by the specified activity. The Negligible Impact Analysis and Determinations section includes an analysis of how these activities will impact marine mammals and considers the content of this section, the Estimated Take section, and the Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations.
This section provides an estimate of the numbers and type of incidental takes that may be expected to occur under the specified activity, which informs NMFS' negligible impact determinations. Realized incidental takes would be determined by the actual levels of activity at specific times and places that occur under any issued LOAs and by the actual acoustic source used. While the methodology and modeling for estimating take remains identical to that originally described in the 2018 proposed and 2021 final rules, updated species density values have been used, and take estimates are available for three different airgun array configurations. The highest modeled estimated take (annual and 5-year total) for each species is analyzed for the negligible impact analysis.
Except with respect to certain activities not pertinent here, section 3(18) of 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). As with the 2021 final rule, harassment is the only type of take expected to result from these activities. It is unlikely that lethal takes would occur even in the absence of the mitigation and monitoring measures, and no such takes are anticipated or will be authorized.
Anticipated takes would primarily be by Level B harassment, as use of the described acoustic sources, particularly airgun arrays, is likely to disrupt behavioral patterns of marine mammals upon exposure to sound at certain levels. There is also some potential for auditory injury (Level A harassment) to result for low- and high-frequency species due to the size of the predicted auditory injury zones for those species, though none is predicted to occur for Rice's whales (the only low-frequency cetacean in the GOM). NMFS does not expect auditory injury to occur for mid-frequency species. See discussion provided in the 2018 notice of proposed rulemaking (83 FR 29212, June 22, 2018) and in responses to public comments provided in the notice of issuance for the 2021 final rule (86 FR 5322, January 19, 2021).
Below, we summarize how the take that may be authorized was estimated using acoustic thresholds, sound field modeling, and marine mammal density data. Detailed discussion of all facets of the take estimation process was provided in the 2018 notice of proposed rulemaking (83 FR 29212, June 22, 2018), which is incorporated by reference here, as it was into the 2021 final rule, as most aspects of the modeling have not changed; any aspects of the modeling that have changed are noted below and in Weirathmueller
NMFS uses acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals generally would be reasonably expected to exhibit disruption of behavioral patterns (Level B harassment) or to incur permanent threshold shift (PTS) of some degree (Level A harassment). Acoustic criteria used herein were described in detail in the preceding notices associated with the 2018 proposed rule and 2021 final rule; that discussion is not repeated as no changes have been made to the relevant acoustic criteria. See tables 3 and 4.
Zeddies
All acoustic exposure modeling, including source and propagation modeling, was redone in support of this final rule to address the additional airgun array configurations and the new data on marine mammal density and species definition files, as described below in this section. However, all aspects of the modeling (including source, propagation, and animal movement modeling) are the same as described in Zeddies
Differences from the modeling and modeling products described in previous notices associated with this ITR are limited to source and propagation modeling of the new 5,110-in
For species occurring in oceanic waters, the updated density models are based upon data collected during vessel surveys conducted in 2003-04, 2009, and 2017-18 (and including surveys conducted in 2019 for Rice's whale). Survey effort was generally conducted in a survey region bounded by the shelf break (approximately the 200-m isobath) to the north and the boundary of the U.S. EEZ to the south. Separate models were created for species occurring in shelf waters (Atlantic spotted dolphin and bottlenose dolphin) based on seasonal aerial surveys conducted in 2011-12 and 2017-18. Based on water depth, the shelf models were used to predict acoustic exposures for these two species in Zones 2 and 3, and the oceanic models were used to predict exposures in Zones 4-7.
As discussed above, the updated density modeling effort retains the previous approach of treating beaked whales and
Exposure estimates above Level A and Level B harassment criteria, originally developed by Zeddies
Of even greater import for mid-frequency cetaceans is that the small calculated Level A harassment zone size in conjunction with the properties of sound fields produced by arrays in the near field versus far field leads to a logical conclusion that Level A harassment is so unlikely for species in this hearing group as to be discountable. For all mid-frequency cetaceans, following evaluation of the available scientific literature regarding the auditory sensitivity of mid-frequency cetaceans and the properties of airgun array sound fields, NMFS does not expect any reasonable potential for Level A harassment to occur. This issue was addressed in detail in the response to public comments provided in NMFS' 2021 notice of issuance for the rule (86 FR 5322, January 19, 2021; see 86 FR 5354). NMFS expects the potential for Level A harassment of mid-frequency cetaceans to be discountable, even before the likely moderating effects of aversion and mitigation are considered, and NMFS does not believe that Level A harassment is a likely outcome for any mid-frequency cetacean. Therefore, the updated modeling results provided by Weirathmueller
As discussed in greater detail in the 2018 notice of proposed rulemaking (83 FR 29212, June 22, 2018), NMFS considered the possibility of incorporating quantitative adjustments within the modeling process to account for the effects of mitigation and/or aversion, as these factors would lead to a reduction in likely injurious exposure. However, these factors were ultimately not quantified in the modeling. In summary, there is too much inherent uncertainty regarding the effectiveness of detection-based mitigation to support any reasonable quantification of its effect in reducing injurious exposure, and there is too little information regarding the likely level of onset and degree of aversion to quantify this behavior in the modeling process. This does not mean that mitigation is not effective (to some degree) in avoiding incidents of Level A harassment, nor does it mean that aversion is not a meaningful real-world effect of noise exposure that should be expected to reduce the number of incidents of Level A harassment. As discussed in greater detail in responses to public comments provided in the 2021 notice of issuance for the final rule (86 FR 5322, January 19, 2021; see 86 FR 5353), there is ample evidence in the literature that aversion is one of the most common responses to noise exposure across varied species, though the onset and degree may be expected to vary across individuals and in different contexts. Therefore, NMFS incorporated a reasonable adjustment to modeled Level A harassment exposure estimates to account for aversion for low- and high-frequency species. That approach, which is retained here, assumes that an 80 percent reduction in modeled exposure estimates for Level A harassment for low- and high-frequency cetaceans is reasonable (Ellison
While processing requests for individual LOAs in 2021 under the rule using the methodology for developing LOA-specific take numbers presented in the rule, NMFS discovered discrepancies between the revised total take numbers provided by BOEM when addressing its revision to the scope of activity through removal of the GOMESA area and the underlying modeling results. (Note that the underlying modeling results are in the form of 24-hour exposure estimates, specific to each species, zone, survey type, and season. These 24-hour exposure estimates can then be scaled to generate take numbers appropriate to the specific activity or, in the case of BOEM's petition for rulemaking, to the
NMFS contacted BOEM regarding the issue in June 2021. Following an initial discussion, BOEM determined that when it reduced its scope of specified activity by removing the GOMESA moratorium area from the proposed action, it underestimated the level of take by inadvertently factoring species density estimates into its revised exposure estimates twice. Generally, this miscalculation caused BOEM to underestimate the total predicted exposures of species from all survey activities in its revision to the incidental take rule application, most pronouncedly for those species with the lowest densities. The practical effect of this miscalculation is that the full amount of activity for which BOEM sought incidental take coverage in its application cannot be authorized under the existing incidental take rule.
In September 2021, BOEM provided corrected exposure estimates. These are available in BOEM's September 2021 “Corrected Exposure Estimates” letter, available online at:
The result of BOEM's process was that errors of varying degrees were introduced to the BOEM-derived take numbers evaluated in the final rule. Although NMFS was unable to replicate the derivation of the species-specific scaling factors, or to adequately compare the erroneous BOEM-derived values to the values evaluated in NMFS' 2018 proposed rule or to other published values, it remained clear that the take estimates were significantly underestimated for multiple species. Because of this, recalculation of appropriate take numbers was necessary.
As discussed previously, through NMFS' experience implementing the 2021 final rule, it has become evident that operators are not currently using airgun arrays as large as the proxy array specified by BOEM for the original exposure modeling effort, and that the use of that 72-element, 8,000-in
Since the time of the original acoustic exposure modeling, JASCO has reviewed all species definition files and applied extensive updates for many species. These files define the species-specific parameters that control animat behavior during animal movement modeling. In particular, changes in the minimum and maximum depth preferences affected the coverage area for several species, which resulted in significant changes to some estimated exposures for some species.
In addition, at the time NMFS determined it would conduct a rulemaking to address the corrected take estimates, new cetacean density modeling (including incorporation of new Rice's whale data) was nearing completion, in association with the BOEM-funded GoMMAPPS effort (see:
Estimated instances of take,
Typically, and especially in cases where PTS is predicted, NMFS anticipates that some number of individuals may incur temporary threshold shift (TTS). However, it is not necessary to separately quantify those takes, as it is unlikely that an individual marine mammal would be exposed at the levels and duration necessary to incur TTS without also being exposed to the levels associated with potential disruption of behavioral patterns (
Differences between the estimated instances of take evaluated in the 2021 final rule (table 5) and those evaluated herein (table 6) may be attributed to multiple factors. Due to the confounding nature of these factors, it is challenging to attribute species-specific differences by degree to any particular factor. These factors include: (1) BOEM errors in calculating estimated take in support of its revision of scope for the 2021 final rule, which are related to species-specific density values by zone, as well as to species-specific “correction factors” developed by BOEM; (2) JASCO revisions to species definition files governing animat behavior during animal movement modeling; and (3) new density information for all species other than Fraser's dolphin and rough-toothed dolphin. In addition, for the Rice's whale, propagation modeling of a new array specification produced the greatest values for estimated instances of take. While it is difficult to attribute species-specific changes to specific factors, we do know that the correction of the BOEM error could only result in take number increases from the 2021 final rule, while density changes and species definition file changes could result in either increases or decreases in take estimates. (However, most density values decreased, in many cases significantly.) NMFS has addressed BOEM's error to the extent possible in the discussion provided previously (see
Regarding the species characteristics used in the new modeling, as discussed above, all species behavior files were reviewed by JASCO prior to the new
New modeling for the smaller, 5,110-in
While the larger array did produce greater predicted exposures for all species, with the exception of Rice's whales, the differences between predicted exposure estimates for the two larger arrays were not as great as may have been expected on the basis of total array volume alone. The 5,110- and 8,000-in
NMFS cautions against interpretation of the changes presented in table 7 at face value for a variety of reasons. First, reasons for the differences in the take estimates are difficult to interpret due to the confounding nature of the different factors discussed in this section. Second, the meaning of the differences in terms of impacts to the affected
Overall, NMFS has determined, to the extent possible, that aside from the confounding effect of BOEM's calculation errors, differences between the current and prior results for the 8,000-in
NMFS has determined the values shown in table 6 are a reasonable estimate of the maximum potential instances of take that may occur in each year of the regulations based on projected effort (more specifically, each of these “takes” represents a day in which one individual is exposed above the Level B harassment criteria, even if only for minutes). However, these take numbers do not represent the number of individuals expected to be taken, as they do not consider the fact that certain individuals may be exposed above harassment thresholds on multiple days. Accordingly, as described in the 2018 notice of proposed rulemaking, NMFS developed a “scalar ratio” approach to inform two important parts of the analyses: understanding a closer approximation of the number of individuals of each species or stock that may be taken within a survey, and understanding the degree to which individuals of each species or stock may be more likely to be repeatedly taken across multiple days within a year.
In summary, comparing the results of modeling simulations that more closely match longer survey durations (30 days) to the results of 24-hour take estimates scaled up to 30 days (as the instances of take in table 6 were calculated) provides the comparative ratios of the numbers of individuals taken/calculated (within a 30-day survey) to instances of take, in order to better understand the comparative distribution of exposures across individuals of different species. These products are used to inform a better understanding of the nature in which individuals are taken across the multiple days of a longer duration survey given the different behaviors that are represented in the animat modeling and may appropriately be used in combination with the calculated instances of take to predict the number of individuals taken for surveys of similar duration, in order to support evaluation of take estimates in requests for LOAs under the “small numbers” standard, which is based on the number of individuals taken. A detailed discussion of this approach was provided in the 2018 notice of proposed rulemaking. As NMFS retains without change this “scalar ratio” approach to approximating the number of individuals taken, both here (see Negligible Impact Analysis and Determinations) and in support of the necessary small numbers determination on an LOA-specific basis, we do not repeat the discussion but refer the reader to previous
These adjusted take numbers, representing a closer approximation of the number of individuals taken (shown in table 8), provide a more realistic basis upon which to evaluate severity of the expected taking. Please see the Negligible Impact Analysis and Determinations section later in this document for additional detail. It is important to recognize that while these scaled numbers better reflect the number of individuals likely to be taken within a single 30-day survey than the number of instances in table 6, they will still overestimate the number of individuals taken across the aggregated GOM activities, because they do not correct for (
As noted in the beginning of this section and in the Small Numbers section, using modeled instances of take (table 6) and the method used here to scale those numbers allows one to more accurately predict the number of individuals that will be taken as a result of exposure to one survey and, therefore, these scaled predictions are more appropriate to consider in requests for LOAs to assess whether a resulting LOA would meet the small numbers standard. However, for the purposes of ensuring that the total taking authorized pursuant to all issued LOAs is within the scope of the analysis conducted to support the negligible impact finding in this rule, authorized instances of take (which are the building blocks of the analysis) also must be assessed. Specifically, reflecting table 6 and what has been analyzed, the total instances of take that may be authorized for any given species or stock over the course of the 5 years covered under these regulations must not, and is not expected to, exceed the sum of the 5 years of take indicated for the 5 years in that table. Additionally, in any given year, the instances of take of any species must not, and are not expected to, exceed the highest annual take listed in table 6 for any of the 5 years for a given species.
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the LPAI on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses, often referred to in shorthand as “mitigation.” NMFS does not have a regulatory definition for LPAI. However, NMFS' implementing regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the LPAI upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). In the Mitigation section of the 2021 final rule, NMFS included a detailed description of our interpretation of the LPAI standard (including its relationship to the negligible impact standard) and how the LPAI standard is implemented (86 FR 5322, 5407, January 19, 2021). We refer readers to the full LPAI discussion in the 2021 final rule, but repeat the discussion on implementation here to facilitate understanding of the analyses that follow.
NMFS' evaluation of potential mitigation measures includes consideration of two primary factors:
(1) The manner in which, and the degree to which, implementation of the potential measure(s) is expected to reduce adverse impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses (where relevant). This analysis considers such things as the nature of the potential adverse impact (such as likelihood, scope, and range), the likelihood that the measure will be effective if implemented, and the likelihood of successful implementation; and
(2) The practicability of the measures for applicant implementation. Practicability of implementation may consider such things as cost, impact on activities, personnel safety, and practicality of implementation.
While the language of the LPAI standard calls for minimizing impacts to affected species or stocks and their habitat, NMFS recognizes that the reduction of impacts to those species or stocks accrues through the application of mitigation measures that limit impacts to individual animals. Accordingly, NMFS' analysis focuses on measures that are designed to avoid or minimize impacts on individual marine mammals that are likely to increase the probability or severity of population-level effects.
While direct evidence of impacts to species or stocks from a specified activity is rarely available, and additional study is still needed to understand how specific disturbance events affect the fitness of individuals of certain species, there have been improvements in understanding the process by which disturbance effects are translated to the population. With recent scientific advancements (both marine mammal energetic research and the development of energetic frameworks), the relative likelihood or degree of impacts on species or stocks may often be inferred given a detailed understanding of the activity, the environment, and the affected species or stocks. This same information is used in the development of mitigation measures and helps us understand how mitigation measures contribute to lessening effects (or the risk thereof) to species or stocks. NMFS also acknowledges that there is always the potential that new information, or a new recommendation that had not previously been considered, becomes available and necessitates re-evaluation of mitigation measures (which may be addressed through adaptive management) to see if further reductions of population impacts are possible and practicable.
In the evaluation of specific measures, the details of the specified activity will necessarily inform each of the two primary factors discussed above (expected reduction of impacts and practicability) and are carefully considered to determine the types of mitigation that are appropriate under the LPAI standard. Analysis of how a potential mitigation measure may
1.
The emphasis given to a measure's ability to reduce the impacts on a species or stock considers the degree, likelihood, and context of the anticipated reduction of impacts to individuals (and how many individuals) as well as the status of the species or stock.
The ultimate impact on any individual from a disturbance event (which informs the likelihood of adverse species- or stock-level effects) is dependent on the circumstances and associated contextual factors, such as duration of exposure to stressors. Though any proposed mitigation needs to be evaluated in the context of the specific activity and the species or stocks affected, measures with the following types of effects have greater value in reducing the likelihood or severity of adverse species- or stock-level impacts: avoiding or minimizing injury or mortality; limiting interruption of known feeding, breeding, mother/young, or resting behaviors; minimizing the abandonment of important habitat (temporally and spatially); minimizing the number of individuals subjected to these types of disruptions; and limiting degradation of habitat. Mitigating these types of effects is intended to reduce the likelihood that the activity will result in energetic or other types of impacts that are more likely to result in reduced reproductive success or survivorship. It is also important to consider the degree of impacts that are expected in the absence of mitigation in order to assess the added value of any potential measures. Finally, because the LPAI standard gives NMFS discretion to weigh a variety of factors when determining appropriate mitigation measures and because the focus of the standard is on reducing impacts at the species or stock level, the LPAI standard does not compel mitigation for every kind of take, or every individual taken, if that mitigation is unlikely to meaningfully contribute to the reduction of adverse impacts on the species or stock and its habitat, even when practicable for implementation by the applicant.
The status of the species or stock is also relevant in evaluating the appropriateness of potential mitigation measures in the context of LPAI. The following are examples of factors that may (either alone, or in combination) result in greater emphasis on the importance of a mitigation measure in reducing impacts on a species or stock: the stock is known to be decreasing or status is unknown, but believed to be declining; the known annual mortality (from any source) is approaching or exceeding the PBR level; the affected species or stock is a small, resident population; or the stock is involved in a UME or has other known vulnerabilities, such as recovering from an oil spill.
Habitat mitigation, particularly as it relates to rookeries, mating grounds, and areas of similar significance, is also relevant to achieving the standard and can include measures such as reducing impacts of the activity on known prey utilized in the activity area or reducing impacts on physical habitat. As with species- or stock-related mitigation, the emphasis given to a measure's ability to reduce impacts on a species or stock's habitat considers the degree, likelihood, and context of the anticipated reduction of impacts to habitat. Because habitat value is informed by marine mammal presence and use, in some cases there may be overlap in measures for the species or stock and for use of habitat.
NMFS considers available information indicating the likelihood of any measure to accomplish its objective. If evidence shows that a measure has not typically been effective nor successful, then either that measure should be modified or the potential value of the measure to reduce effects should be lowered.
2.
Factors considered may include those costs, impact on activities, personnel safety, and practicality of implementation.
In carrying out the MMPA's mandate for this action, NMFS applies the context-specific balance between the manner in which and the degree to which measures are expected to reduce impacts to the affected species or stocks and their habitat and practicability for operators. See NMFS' notice of issuance for the 2021 final rule (January 19, 2021, 86 FR 5322, 5405). The effects of concern (
Our rulemaking for the 2021 final rule focused on measures with proven or reasonably presumed ability to avoid or reduce the intensity of acute exposures that have potential to result in these anticipated effects. To the extent of the information available to NMFS, we considered practicability concerns, as well as potential undesired consequences of the measures,
NMFS' 2021 rule included a suite of basic mitigation protocols that are required regardless of the status of a stock. Additional or enhanced protections were required for species whose stocks are in particularly poor health and/or are subject to some significant additional stressor that lessens that stock's ability to weather the effects of the specified activities without worsening its status. NMFS' evaluation process was described in detail in the 2018 proposed rule (83 FR 29212, June 22, 2018), and mitigation requirements included in the incidental take regulations at 50 CFR 217.180
For this current rulemaking, NMFS' evaluation built off the existing mitigation requirements from the 2021 final rule, which will remain in effect, and considered additional mitigation under the LPAI standard as it relates to Rice's whales, in light of the species' status, increase in take estimates relative to the 2021 final rule, and other new information. In addition to other potential changes to mitigation requirements suggested by public commenters and addressed in the Comments and Responses section of this rule, we evaluated (1) a potential restriction on survey activities within the small portion of the Rice's whale “core distribution area” that overlaps the geographic scope of the specified activity covered by this rule (see discussion of the core distribution area earlier in Description of Marine Mammals in the Area of the Specified Activities) and (2) the potential for a restriction on survey activity in other areas between 100-400 m in depth throughout the geographic area covered by the rule,
For all other species, although there are slight increases in estimated take (for three species) and increases in evaluated risk (for other species) relative to the 2021 final rule (see Negligible Impact Analysis and Determinations), there are no known specific areas of particular importance to consider for time-area restrictions, and no changes to our prior analysis for the sufficiency of the existing standard operational mitigation requirements to effect the LPAI on the affected species or stocks and their habitat. (We also note that NMFS' 2018 proposed rule made this determination even in the context of significantly higher takes, as well as evaluated risk.)
Of relevance here, the reduced geographic scope of the specified activity for this rule (and the 2021 final rule) in relation to the 2018 proposed rule excludes the eastern GOM through removal of the GOMESA area (see Figure 2). This reduced scope effectively minimizes potential impacts to Rice's whales and their core habitat (as recognized by the 2016 status review team) relative to the impacts considered through NMFS' 2018 proposed rule. Thus, although potential takes considered herein are higher relative to those analyzed in the 2021 final rule (maximum of 30 annual incidents of take (Level B harassment only) compared with 10, respectively), they remain significantly under the take numbers evaluated in the 2018 proposed rule (maximum of 572 annual incidents of take by Level B harassment with additional take by Level A harassment).
It is in the aforementioned context that our 2023 proposed rule evaluated two potential measures for additional Rice's whale mitigation: (1) restriction of survey activity within the 5 percent of the core distribution area (
We reiterate that the amount of anticipated take of Rice's whales over the 5-year duration of the incidental take regulation is relatively low and
For this rulemaking, NMFS independently examined each of the two area-based restrictions in the context of the LPAI standard to determine whether either restriction is warranted to minimize the impacts from seismic survey activities on the affected marine mammal species or stocks. This analysis is consistent with the consideration of the LPAI criteria described above when determining appropriateness of mitigation measures. These potential requirements were evaluated (see below) in the context of the proposed seismic survey activities (including the geographic scope of the rule) and the existing mitigation measures that would be implemented to minimize impacts on the affected marine mammal species or stocks from these activities.
To reiterate, the scope of the rule does not cover Rice's whale core habitat in the northeastern GOM, which is the area (absent buffering) that contains the highest known densities of Rice's whale and which has defined the movements of previously tagged Rice's whales. Thus, even though individual Rice's whales occurring outside of the core habitat area may experience harassment, this geographic scope likely precludes significant impacts to Rice's whales at the species level by avoiding takes of the majority of individuals and by avoiding impacts to the habitat that supports the highest densities of the species. This important context generally lessens the total number of takes, and means that the takes that do occur are expected to have lower potential to have negative energetic effects or deleterious effects on reproduction that could reduce the likelihood of survival or reproductive success. In addition, NMFS has required mitigation measures that would minimize or alleviate the likelihood of injury (PTS), TTS, and more severe behavioral responses (the 1,500-m shutdown zone). In addition, exposures to airgun noise would occur in open water areas where animals can more readily avoid the source and find alternate habitat relatively easily. The existing mitigation requirements are expected to be effective in ensuring that impacts are limited to lower-level responses with limited potential to significantly alter natural behavior patterns in ways that would affect the fitness of individuals and by extension the affected species.
As noted previously, in evaluating mitigation for species or stocks and their habitat, we consider the expected benefits of the mitigation measures for the species or stocks and their habitats against the practicability of implementation. This consideration includes assessing the manner in which, and the degree to which, the implementation of the measure(s) is expected to reduce impacts to marine mammal species or stocks (including through consideration of expected reduced impacts on individuals), their habitat, and their availability for subsistence uses (where relevant). This analysis considers such things as the nature of the proposed activity's adverse impact (likelihood, scope, range); the likelihood that the measure will be effective if implemented; the likelihood of successful implementation. Practicability of implementing the measure is also assessed and may involve consideration of such things as cost and impact on operations (16 U.S.C. 1371(a)(5)(A)(iii)).
Taking into account the above considerations, NMFS' evaluation of the two potential survey restrictions is described below:
The significant concern that led NMFS to consider restrictions on survey activity in the core habitat area was largely alleviated through removal of GOMESA and the associated reduction in predicted take and impacts in a known area of important habitat. (Although predicted take numbers for this final rule are higher relative to the 2021 final rule (annual average Level B harassment events of 26 versus 8, respectively), they remain significantly lower than the annual average of 462 Level B harassment events considered in that 2018 analysis (plus some potential for Level A harassment to occur)—an almost 18-fold reduction.) Moreover, the functional absence of survey activity in the eastern GOM, and particularly within Rice's whale core habitat area, means that the anticipated protection afforded by the previously considered restriction was functionally achieved by virtue of the reduced scope for the 2021 final rule (which is unchanged for this action). Regardless, because the core habitat area was entirely located in the GOMESA moratorium area removed from the scope of the 2021 final rule, it was no longer relevant for consideration as mitigation.
More recently, Rosel and Garrison (2022) described a Rice's whale “core distribution area” (Figure 3). This core distribution area description included a precautionary 30-km buffer around the core habitat area to account for uncertainty associated with both the location of observed whales and the possible movement whales could make in any direction from an observed sighting. It is not the result of new information warranting an expansion of the previously considered core habitat area, but rather is the result of additional precaution in defining the area within which existing Rice's whale sightings and tag locations suggest that whales could occur. As a result of this buffer, approximately 5 percent of the polygon for the core distribution area described in Rosel and Garrison (2022) overlaps with the current geographic scope of the rule, which led us to consider whether additional mitigation is warranted under the LPAI standard.
The result of this precautionary approach is that areas shallower than 100 m and deeper than 400 m (
Thus, we evaluate the potential mitigative benefits of a restriction on survey activity in the remaining approximately one-quarter of the considered area that is preferred habitat for Rice's whales. The absence of survey activity would avoid likely Level B harassment of any individuals that may occur in the area, but there is no information suggesting that the area is of particular importance relative to the remainder of GOM waters between 100-400 m that are outside the northeastern GOM core habitat, and Level B harassment that occurs to whales present outside the core habitat area may be expected to carry less potential for disruption of important behavior or significance to the affected individual. The amount of anticipated take is already low, and the existing mitigation requirements are expected with a high degree of confidence to minimize the duration and intensity of any instances of take that do occur. Therefore, we have low confidence that this potential restriction would meaningfully reduce impacts at the species or stock level. Regarding practicability, although the considered area is relatively small, it would have outsize impacts should any operator need to conduct new survey activity on existing interests in the area or inform developers' understanding of potential reserves in the area.
In summary, there is no information supporting identification of this area (
As background, a NOAA survey reported observation of a Rice's whale in the western GOM in 2017 (NMFS, 2018). Genetic analysis of a skin biopsy that was collected from the whale confirmed it to be a Rice's whale. There had not previously been a genetically verified sighting of a Rice's whale in the western GOM, and given the importance of this observation, additional survey effort was conducted in an attempt to increase effort in the area. However, no additional sightings were recorded. (Note that there were two sightings of unidentified large baleen whales in 1992 in the western GOM, recorded as
The acoustic detections provide significant evidence of year-round Rice's whale presence outside of the northeastern GOM core habitat area. Soldevilla
A subsequent follow-up study (Soldevilla
The rate of call detections throughout the year is considerably higher in the eastern GOM than at the central/western GOM site where calls were most commonly detected, with at least 8.3 calls/hour among four eastern GOM sites within the core habitat area over 110 deployment days (Rice
The passive acoustic data discussed above provide evidence that waters 100-400 m deep in the central and western GOM are Rice's whale habitat and are being used by Rice's whales in all seasons. This could imply that the population size is larger than previously estimated, or it could indicate that some individual Rice's whales have a broader distribution in the GOM than previously understood (Soldevilla
While these acoustic data and few confirmed sightings support the presence of Rice's whales in western and central GOM waters (within the 100-400 m water depth), the information is consistent with the predictions of Rice's whale density modeling, on which basis NMFS already anticipated and evaluated the potential for and effects of takes of Rice's whale in western and central GOM waters, even without these new data. Little is known about the number of whales that may be present, the nature of these individuals' use of the habitat, or the timing, duration, or frequency of occurrence for individual whales. Conversely, the importance of northeastern GOM waters to Rice's whale recovery is very clear (Rosel
Restricting survey activity in central/western GOM waters from 100-400 m depth would avoid likely Level B harassment of any individuals that may occur in the area, but aside from the very large area within the 100-400 m isobaths throughout the GOM generally, there is no information supporting further delineation of any specific area within which a restriction on survey activity might be expected to provide targeted reductions in adverse impacts to Rice's whales or their habitat, and no such information was provided through public comment. Further, Level B harassment that may occur in the central/western GOM may be expected to have lower potential for meaningful consequences relative to Level B harassment events that occur in the northeastern GOM core habitat area, where important behavior may be more likely disrupted, and where greater numbers of Rice's whale are expected to occur. The relatively low level of take predicted for Rice's whales in the geographic scope for the specified activity under this final rule, as well as the existing mitigation measures (including expanded shutdowns for Rice's whales), which are expected with a high degree of confidence to minimize the duration and intensity of any instances of take that do occur, factor into NMFS' consideration of the potential benefits of any restriction on survey effort in central and western GOM waters 100-400 m depth.
Habitat that supports all of the Rice's whale life-history states is generally considered to consist of the aforementioned strip of continental shelf waters within the 100-400 m isobaths throughout the U.S. GOM (Roberts
We also considered data available specifically for the area under consideration (Rice's whale habitat in the central and western GOM). While Rice's whale habitat (
In summary, the foregoing supports that (1) we are unable to delineate specific areas of Rice's whale habitat in the central and western GOM where restrictions on survey activity would be appropriate because there is currently uncertainty about Rice's whale density, abundance, habitat usage patterns and other factors in the central and western GOM; and (2) there is high likelihood that closures or other restrictions on survey activity in all waters of 100-400 m depth in the central and western GOM would have significant economic impacts. Therefore, while new information regarding Rice's whale presence in areas of the GOM outside of the northeastern core habitat suggests that a restriction on survey effort may be expected to reduce adverse impacts to the species, there is a lack of information supporting the importance of or appropriately specific timing or location of such a restriction and an unclear understanding of the importance of particular areas to individual whales or the population as a whole. On the other hand, information regarding the potential for economic impacts resulting from a year-round restriction broadly in the 100-400 m area supports our conclusion that there are significant practicability concerns. As a result, NMFS has determined that no additional mitigation is warranted to effect the LPAI on the species.
NMFS has reevaluated the suite of mitigation measures required through the 2021 final regulations and considered other measures in light of the new information considered in this rule. Based on our evaluation of these measures, we have affirmed that the required mitigation measures contained in the current regulations provide the means of effecting the LPAI on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an incidental take authorization for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of the authorized taking. NMFS' MMPA implementing regulations further describe the information that an applicant should provide when requesting an authorization (50 CFR 216.104 (a)(13)), including the means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and the level of taking or impacts on populations of marine mammals. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
We have made no changes to the current LOA reporting requirements, which have been sufficient to date. Accordingly, the monitoring and reporting requirements for this rule remain identical to the 2021 final rule and ITR, and we refer readers back to that document (86 FR 5322, January 19, 2021) for the discussion.
NMFS' implementing regulations define negligible impact 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 (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
For each potential activity-related stressor, NMFS considers the potential effects to marine mammals and the likely significance of those effects to the species or stock as a whole. Potential risk due to vessel collision in view of the related mitigation measures, as well as potential risk due to entanglement and contaminant spills, were addressed in the Proposed Mitigation and Potential Effects of the Specified Activity on Marine Mammals sections of the 2018 and 2021 notices of proposed and final rulemaking and are not discussed further, as there are minimal risks expected from these potential stressors.
The “specified activity” for this rule continues to be a broad program of geophysical survey activity that could occur at any time of year in U.S. waters of the GOM, within the same specified geographical region as the 2021 final rule (
In summary, the systematic risk assessment framework uses the modeling results to put into biologically-relevant context the level of potential risk of injury and/or disturbance to marine mammals. The framework considers both the aggregation of acute effects and the broad temporal and spatial scales over which chronic effects may occur. Generally, this approach is a relativistic risk assessment that provides an interpretation of the exposure estimates within the context of key biological and population parameters (
Spectral, temporal, and spatial overlaps between survey activities and animal distribution are the primary factors that drive the type, magnitude, and severity of potential effects on marine mammals, and these considerations are integrated into both the severity and vulnerability assessments. The risk assessment framework utilizes a strategic approach to balance the weight of these considerations between the two assessments, specifying and clarifying where and how the interactions between potential disturbance and species within these dimensions are evaluated.
This risk assessment framework is one component of the negligible impact analysis. As we explain more below, overall risk ratings from that assessment are then considered in conjunction with the required mitigation (and any additional relevant contextual information) to ultimately inform our negligible impact determinations. Elements of this approach are subjective and relative within the context of this program of projected survey activity and, overall, the analysis necessarily requires the application of professional judgment. Please review the 2018 proposed and 2021 final rule notices, as well as Southall
As shown in tables 5 and 6, estimated take numbers for most species have decreased relative to those evaluated in the notice of issuance for the 2021 final rule. We note that this includes the blackfish guild (consisting of the false killer whale, pygmy killer whale, melon-headed whale, and killer whale), for which species-specific take information is not available. Both the annual maximum and 5-year total take numbers for the group have decreased relative to the sum of the previous species-specific values (annual maxima and 5-year totals) evaluated in the 2021 final rule.
As elements of the risk assessment framework are dependent on information related to stock abundance, we revisited the risk assessment methodology for all species and present updated information below. Specifically, as discussed below, severity ratings are the product of comparison between estimated take numbers and modeled population abundance, on a zone-specific basis. As the zone-specific modeled population abundance values have been updated through new density modeling (Garrison
Estimated take numbers increased (relative to the 2021 final rule) for only 4 species: Rice's whale, Fraser's dolphin, rough-toothed dolphin, and striped dolphin (we note that overall relative risk ratings remained static for Rice's whale and Fraser's dolphin). The change in estimated take numbers for each of the 4 species within the blackfish category relative to the take estimates for those 4 species in the 2021 final rule is unknown under NMFS' approach to estimating take numbers. However, overall relative risk ratings increased slightly for most species. Of the species for which estimated take decreased, relative risk ratings remained static (or declined) for the sperm whale, beaked whales, bottlenose dolphins, and spinner dolphin. No new information is available for these four taxa that would suggest that the existing negligible impact analyses should be revisited. Therefore, we rely on the previous negligible impact analyses for the sperm whale, all beaked whale species, all bottlenose dolphin stocks, and the spinner dolphin. Please see the notice of issuance for the 2021 final rule (86 FR 5322, January 19, 2021) for analysis related to these species and stocks, which we incorporate here by reference.
For those species for which evaluated take numbers increased and/or for which the assessed relative risk rating increased, our negligible impact analyses begin with the risk assessment framework, which comprehensively considers the aggregate impacts to marine mammal populations from the specified activities in the context of both the severity of the impacts and the vulnerability of the affected species. However, it does not consider the effects of the mitigation required through the regulations in identifying risk ratings for the affected species. In addition, while the risk assessment framework comprehensively considers the spatial and temporal overlay of the activities and the marine mammals in the GOM, as well as the number of predicted takes, there are details about the nature of any “take” anticipated to result from these activities that were not considered directly in the framework analysis that warrant explicit consideration in the negligible impact determination.
Accordingly, following the description of the framework analysis presented below, NMFS highlights a few factors regarding the nature of the predicted “takes,” then synthesizes the results of implementation of the framework, the additional factors regarding the nature of the predicted takes, and the anticipated effects of the mitigation to consider the negligible impact determination for each of the species considered here. The risk assessment analysis below is performed for 2 representative years, one representing a relatively high-effort scenario (Year 1 of the effective period of rule) and the other representing a moderate-effort scenario (Year 4 of the rule). Please see table 1 for details
Severity ratings consider the scaled Level B harassment takes relative to zone-specific population abundance to evaluate the severity of effect. As described above in Estimated Take, a significant model assumption was that populations of animals were reset for each 24-hour period. Exposure estimates for the 24-hour period were then aggregated across all assumed survey days as completely independent events, assuming populations turn over completely within each large zone on a daily basis. In order to evaluate modeled daily exposures and determine more realistic exposure probabilities for individuals across multiple days, we used information on species-typical movement behavior to determine a species-typical offset of modeled daily exposures, summarized under Estimated Take (and discussed in further detail in the 2021 notice of issuance for the final rule). Given that many of the evaluated survey activities occur for 30-day or longer periods, particularly some of the larger surveys for which the majority of the modeled exposures occur, this scaling process is appropriate to evaluate the likely severity of the predicted exposures. (For consideration of LOA applications, scaling is appropriate to estimate take and estimate the numbers of individual marine mammals likely to be taken (although, for surveys significantly longer than 30 days, the take numbers with this scaling applied would still be expected to overestimate the number of individuals, given the greater degree of repeat exposures that would be expected the longer the survey goes on)). This scaling output was used in a severity assessment. This approach is also discussed in more detail in the Southall
The scaled Level B harassment takes were then rated through a population-dependent binning system used to evaluate risk associated with behavioral disruption across species—a simple, logical means of evaluating relative risk across species and areas. See the notice of issuance for the 2021 final rule for more detail regarding the definition of relative risk ratings. Results of the reassessed severity ratings are shown in table 9.
Level A harassment (including PTS) is not expected to occur for any of the species evaluated here, with the exception of
Vulnerability rating seeks to evaluate the relative risk of a predicted effect given species-typical and population-specific parameters (
In the final step of the framework, severity and vulnerability ratings are integrated to provide relative impact ratings of overall risk,
Table 11 provides relative impact ratings for overall risk by zone and activity effort scenario (high and moderate), and table 12 provides GOM-wide relative impact ratings for overall risk for representative high and moderate effort scenarios.
In order to characterize the relative risk for each species across their entire range in the GOM, we used the median of the seven zone-specific risk ratings for each activity scenario (high and moderate effort), not counting those in which less than 0.05 percent of the GOM-wide abundance occurred (“n/a” in table 11), to describe a GOM-wide risk rating for each of the representative activity scenarios (table 12).
As noted above, for sperm whale, beaked whales, bottlenose dolphins, and spinner dolphin, estimated take numbers decreased and relative risk ratings remained static (or decreased) compared with the 2021 final rule. Therefore, we rely on the analysis provided in the notice of issuance for the 2021 final rule for those species and stocks, which are not discussed further here.
Overall, the results of the risk assessment show that (as expected) risk is highly correlated with effort and density. Areas where little or no survey activity is predicted to occur or areas within which few or no animals of a particular species are believed to occur generally have very low or no potential risk of negatively affecting marine mammals, as seen across activity scenarios in Zones 1-4 (no activity will occur in Zone 1, which was entirely removed from scope of the rule, and less than 2 percent of Zone 4 remains within scope of the rule). Fewer species are expected to be present in Zones 1-3, where only bottlenose and Atlantic spotted dolphins occur in meaningful numbers. Areas with consistently high projected levels of effort (Zones 5-7) are generally predicted to have higher overall evaluated risk across all species. In Zone 7, animals are expected to be subject to less other chronic noise and non-noise stressors, which is reflected in the vulnerability scoring for that zone. Therefore, despite consistently high levels of projected effort, overall rankings for Zone 7 are lower than for Zones 5 and 6.
A “high” level of relative risk due to behavioral disturbance was identified in Zone 5 under both scenarios for most of the species evaluated further below (excepting Rice's whale (both scenarios) and
Changes to relative risk ratings may be seen by comparing table 12 above with table 15 from the 2021 final rule, and changes (in numerical terms) are indicated in parentheses for each scenario. All increases to assessed relative risk represent minor changes,
Although the scores generated by the risk assessment framework and further aggregated across zones (as described above) are species-specific, additional stock-specific information is also considered in our analysis, where appropriate, as indicated in the Description of Marine Mammals in the Area of the Specified Activity, Potential Effects of the Specified Activity on Marine Mammals and Their Habitat, and Mitigation sections of the 2018 notice of proposed rulemaking, 2021 final rule, 2023 notice of proposed rulemaking, and this action.
In order to more fully place the predicted amount of take into meaningful context, it is useful to understand the duration of exposure at or above a given level of received sound, as well as the likely number of repeated exposures across days. While any exposure above the criteria for Level B harassment counts as an instance of take, that accounting does not make any distinction between fleeting exposures and more severe encounters in which an animal may be exposed to that received level of sound for a longer period of time. Yet, this information is meaningful to an understanding of the likely severity of the exposure, which is relevant to the negligible impact evaluation and not directly incorporated into the risk assessment framework. Each animat modeled has a record or time history of received levels of sound over the course of the modeled 24-hour period. For example, for the 4 blackfish species exposed to noise from 3D WAZ surveys, the 50th percentile of the cumulative distribution function indicates that the time spent exposed to levels of sound above 160 dB rms SPL (
Additionally, as we discussed in the Estimated Take section of the 2018 notice of proposed rulemaking for Test Scenario 1 (and summarized above), by comparing exposure estimates generated by multiplying 24-hour exposure estimates by the total number of survey days versus modeling for a full 30-day survey duration for 6 representative species, we were able to refine the exposure estimates to better reflect the number of individuals exposed above threshold within a single survey. Using this same comparison and scalar ratios described above, we are able to predict an average number of days each of the representative species modeled in the test scenario were exposed above the Level B harassment thresholds within a single survey. As with the duration of exposures discussed above, the number of repeated exposures is important to an understanding of the severity of effects. For example, the ratio for dolphins indicates that the 30-day modeling showed that approximately 29 percent as many individual dolphins (compared to the results produced by multiplying average 24-hour exposure results by the 30-day survey duration) could be expected to be exposed above harassment thresholds. However, the approach of scaling up the 24-hour exposure estimates appropriately reflects the instances of exposure above threshold (which cannot be more than 1 in 24 hours), so the inverse of the scalar ratio suggests the average number of days in the 30-day modeling period that dolphins are exposed above threshold is approximately 3.5. It is important to remember that this is an average within a given survey, and that it is more likely some individuals would be exposed on fewer days and some on more. table 13 reflects the average days exposed above threshold for the indicated species after the scalar ratios were applied.
In general, NMFS expects that noise-induced hearing loss as a result of airgun survey activity, whether temporary (temporary threshold shift, equivalent to Level B harassment) or permanent (PTS, equivalent to Level A harassment), is only possible for low-frequency and high-frequency cetaceans. The best available scientific information indicates that low-frequency cetacean species (
Level A harassment is predicted to occur for
Some subset of the individual marine mammals predicted to be taken by Level B harassment may incur some TTS. For Rice's whales, TTS may occur at frequencies important for communication. However, any TTS incurred would be expected to be of a relatively small degree and short duration. This is due to the low likelihood of sound source approaches of the proximity or duration necessary to cause more severe TTS, given the fact that both sound source and marine mammals are continuously moving, the anticipated effectiveness of shutdowns, and general avoidance by marine mammals of louder sources.
For these reasons, and in conjunction with the required mitigation, NMFS does not believe that Level A harassment (here, PTS) or Level B harassment in the form of TTS will play a meaningful role in the overall degree
Potential impacts to marine mammal habitat, including to marine mammal prey, were discussed in detail in the 2018 notice of proposed rulemaking as well as in the 2021 notice of issuance for the final rule, including in responses to comments concerning these issues (83 FR 29212, 29241, June 22, 2018; 86 FR 5322, 5335, January 19, 2021). There is no new information that changes that assessment, and we rely on the assessment provided in those documents and reiterated below.
Regarding impacts to prey species such as fish and invertebrates, NMFS' review of the available information leads to a conclusion that the most likely impact of survey activity would be temporary avoidance of an area, with a rapid return to pre-survey distribution and behavior, and minimal impacts to recruitment or survival anticipated. Therefore, the specified activities are not likely to have more than short-term adverse effects on any prey habitat or populations of prey species. Further, any impacts to prey species are not expected to result in significant or long-term consequences for individual marine mammals, or to contribute to adverse impacts on their populations.
Regarding potential impacts to acoustic habitat, NMFS provided a detailed analysis of potential cumulative and chronic effects to marine mammals (found in the Cumulative and Chronic Effects report, available online at
Implications for acoustic masking and reduced communication space resulting from noise produced by airgun surveys in the GOM are expected to be particularly heightened for animals that actively produce low-frequency sounds or whose hearing is attuned to lower frequencies (
In this section, for the species evaluated herein (
Although Rice's whale core habitat in the northeastern GOM is not the subject of restrictions on survey activity, as the scope of the specified activity does not include the area (see Figures 3-4), the beneficial effect for the species remains the same. The absence of survey activity in the eastern GOM (see Figure 2) benefits GOM marine mammals by reducing the portion of a stock likely exposed to survey noise and avoiding impacts to certain species in areas of importance for them. Habitat areas of importance in the eastern GOM are discussed in detail in the Proposed Mitigation section of the 2018 notice of proposed rulemaking.
The risk assessment analysis, which evaluated the relative significance of the aggregated impacts of the survey activities across seven GOM zones in the context of the vulnerability of each species, concluded that the GOM-wide risk ratings for Rice's whales are low, regardless of activity scenario. We note that, although the evaluated severity of take for Rice's whales is very low in all zones where take could occur, vulnerability for the species is assessed as high in 5 of the 6 zones where the species occurs (vulnerability is assessed as moderate in Zone 3, where less than 1 percent of GOM-wide abundance is predicted to occur). When integrated through the risk framework described above, overall risk for the species is therefore assessed as low for both the high and moderate effort scenarios. The evaluated risk rating is the same as what was considered in the 2021 notice of issuance of the final rule, despite increased take numbers (see tables 5-6). In the context of what remain relatively low predicted take numbers, the relative risk ratings for the species remain driven by the assessed vulnerability.
We further consider the likely severity of any predicted behavioral disruption of Rice's whales in the context of the likely duration of exposure above Level B harassment thresholds. Specifically, the average modeled time per day spent at received levels above 160 dB rms (the threshold at which 50 percent of the exposed population is considered taken) ranges from 6.8-21.4 minutes for deep penetration survey types. The average time spent exposed to received levels between 140 and 160 dB rms (where 10 percent of the exposed population is considered taken) ranges from 55-164 minutes for 2D, 3D NAZ, and 3D WAZ surveys, and 401 minutes for coil surveys (which comprise approximately 10 percent of the total activity days).
Importantly, no survey activity will occur within the eastern GOM pursuant to this rule. Although there is new evidence of Rice's whale occurrence in the central and western GOM from passive acoustic detections (Soldevilla
This new information does not affect the prior conclusion that the absence of survey activity in the eastern GOM benefits Rice's whales and their habitat by minimizing a range of potential effects of airgun noise, both acute and chronic, that could otherwise accrue to impact the reproduction or survival of individuals in this area, and that the absence of survey activity in the eastern GOM will minimize disturbance of the species in the place most important to them for critical behaviors such as foraging and socialization. The absence of survey activity in this area and significant reduction in associated exposures of Rice's whales to seismic airgun noise is expected to eliminate the likelihood of auditory injury of Rice's whales. Finally, the absence of survey activity in the eastern GOM will reduce chronic exposure of Rice's whales to higher levels of anthropogenic sound and the associated effects including masking, disruption of acoustic habitat, long-term changes in behavior such as vocalization, and stress.
As described in the preceding
The estimated take numbers for Rice's whale in this final rule are higher than those considered in the 2021 final rule (see tables 5-6). Accordingly, NMFS re-evaluated the relative risk rating for Rice's whale (tables 11-12), and considered other relevant information for the species. As discussed above, the risk ratings did not change from those assessed in the 2021 final rule, and new information considered herein does not affect the determinations previously made in that analysis. No mortality of Rice's whales is anticipated or authorized. It is possible that Rice's whale individuals, if encountered, will be taken briefly on one or more days during a year of activity by one type of survey or another and some subset of those exposures above thresholds may be of comparatively long duration within a day. However, the amount of take remains low (annual average of 26, with a maximum in any year of 30), and the significant and critical functional protection afforded through the absence of survey activity in the species' northeastern GOM core habitat and the extended shutdown requirement means that the impacts of the expected takes from these activities are not likely to impact the reproduction or survival of any individual Rice's whales, much less adversely affect the species through impacts on annual rates of recruitment or survival. Accordingly, we conclude the taking from the specified activity will have a negligible impact on Rice's whales as a species.
The risk assessment analysis, which evaluated the relative significance of the aggregated impacts of the survey activities across seven GOM zones in the context of the vulnerability of each species, concluded that the GOM-wide risk ratings for
Odontocetes echolocate to find prey, and while there are many different strategies for hunting, one common pattern, especially for deeper diving species, is to conduct multiple repeated deep dives within a feeding bout, and multiple bouts within a day, to find and catch prey. While exposures of the short durations noted above could potentially interrupt a dive or cause an individual to relocate to feed, such a short-duration interruption would be unlikely to have significant impacts on an individual's energy budget and, further, for these species and this open-ocean area, there are no specific known reasons (
NMFS has analyzed the likely impacts of potential hearing impairment, including the estimated upper bounds of permanent threshold shift (Level A harassment) that could be authorized under the rule and do not expect that they would result in impacts on reproduction or survival of any individuals. As described in the previous section, the degree of injury for individuals would be expected to be mild, and the predicted PTS resulting from airgun exposure is not likely to affect echolocation performance or communication for
Of note, due to their pelagic distribution, small size, and cryptic behavior, pygmy sperm whales and dwarf sperm whales are rarely sighted during at-sea surveys and difficult to distinguish when visually observed in the field. Accordingly, abundance estimates in NMFS SARs are recorded for
No mortality of
In consideration of the similarities in the nature and scale of impacts, we consider the GOM stocks of the following species together in this section: rough-toothed dolphin, Clymene dolphin, Atlantic spotted dolphin, pantropical spotted dolphin, striped dolphin, Fraser's dolphin, Risso's dolphin, melon-headed whale, pygmy killer whale, false killer whale, killer whale, and short-finned pilot whale. With the exception of Fraser's dolphin, rough-toothed dolphin, and striped dolphin, estimated (and allowable) take of these stocks (including both the maximum annual take and the total take over 5 years) is lower as compared to the 2021 final rule.
The risk assessment analysis, which evaluated the relative significance of the aggregated impacts of the survey activities across seven GOM zones in the context of the vulnerability of each species, concluded that the GOM-wide risk ratings for high and moderate effort scenarios ranged from very low to between low and moderate for these species. For the Fraser's dolphin, evaluated risk is the same as what was considered in the 2021 final rule, despite increased take numbers (see tables 5-6).
We further considered the likely severity of any predicted behavioral disruption of the individuals of these species in the context of the likely duration of exposure above Level B harassment thresholds. Specifically, the average modeled time per day spent at received levels above 160 dB rms (where 50 percent of the exposed population is considered taken) ranges from 1.4-11.7 minutes for 2D, 3D NAZ, and 3D WAZ surveys and up to 25.7 minutes for coil surveys (which comprise less than 10 percent of the total projected activity days). The average time per day spent between 140 and 160 dB rms for individuals that are taken is from 8-58.1 minutes, with the one exception of killer whales exposed to noise from coil surveys, which average 73.6 minutes (though we note that the overall risk rating for the blackfish group, including killer whales, is low).
Odontocetes echolocate to find prey, and there are many different strategies for hunting. One common pattern for deeper-diving species is to conduct multiple repeated deep dives within a feeding bout, and multiple bouts within a day, to find and catch prey. While exposures of the shorter durations noted above could potentially interrupt a dive or cause an individual to relocate to feed, such a short-duration interruption would be unlikely to have significant impacts on an individual's energy budget and, further, for these species and this open-ocean area, there are no specific known reasons (
Of note, the Atlantic spotted dolphin is expected to benefit (via lessening of both number and severity of takes) from the coastal waters time-area restriction developed to benefit bottlenose dolphins, and several additional species can be expected to benefit from the absence of survey activity in important eastern GOM habitat.
No mortality or Level A harassment of these species is anticipated or authorized. It is likely that the majority of the individuals of these species will be impacted briefly on one or more days during a year of activity by one type of survey or another. Based on the nature of the individual exposures and takes, as well as the very low to low aggregated scale of the impacts across the GOM and considering the mitigation discussed here, the impacts of the expected takes from these activities are not likely to impact the reproduction or survival of any individuals, much less adversely affect the GOM stocks of any of these 12 species through impacts on annual rates of recruitment or survival. Accordingly, we conclude the taking from the specified activity will have a negligible impact on GOM stocks of these 12 species.
Based on the analysis contained herein, and the analysis presented in the 2021 final rule for the other species and stocks for which take is authorized (table 6), of the likely effects of the specified activities on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and related monitoring measures, NMFS finds that the total marine mammal take from the specified activities for the 5-year period of the regulations will have a negligible impact on all affected marine mammal species and stocks.
For reference, we summarize how NMFS interprets and applies the small numbers standard, which is substantively unchanged from the full discussion provided in the 2018 notice of proposed rulemaking. Additional discussion was provided in the Comments and Responses section of the notice of issuance for the 2021 final rule to address specific comments, questions, or recommendations received from the public.
In summary, when quantitative take estimates of individual marine mammals are available or inferable through consideration of additional factors, and the number of animals taken is one-third or less of the best available abundance estimate for the species or stock, NMFS considers it to be of small numbers. For additional discussion, please see NMFS' notice of issuance for the 2021 final rule (86 FR 5322, January 19, 2021; see 86 FR 5363, 86 FR 5438). NMFS may also appropriately find that one or two predicted group encounters will result in small numbers of take relative to the range and distribution of a species, regardless of the estimated proportion of the abundance.
Our 2021 final rule also concluded that NMFS may appropriately elect to make a “small numbers” finding based on the estimated annual take in individual LOAs issued under the rule. This approach does not affect the negligible impact analysis for a rule, which is the biologically relevant inquiry and based on the total annual estimated taking for all activities the regulations will govern over the 5-year period. NMFS determined this approach is a permissible interpretation of the relevant MMPA provisions.
For this rule, as in the 2021 final rule, up-to-date species information is available, and sophisticated models have been used to estimate take in a manner that will allow for quantitative comparison of the take of individuals versus the best available abundance estimates for the species or guilds. Specifically, while the modeling effort utilized for this rule enumerates the estimated instances of takes that will occur across days as the result of the operation of certain survey types in certain areas, the modeling report also includes the evaluation of a test scenario that allows for a reasonable modification of those generalized take estimates to better estimate the number of individuals that will be taken within one survey (as discussed under Estimated Take). Use of modeling results from the rule allows one to reasonably approximate the number of marine mammal individuals taken in association with survey activities. The estimated take of marine mammals for each species or guild will then be compared against the best available abundance estimate as determined, and estimates that do not exceed one-third of that estimate will be considered small numbers.
Our 2021 final rule contained a fuller explanation of this interpretation and application of “small numbers” and explained how small numbers would be evaluated under the rule. We make no changes to our treatment of the small numbers standard in this rule, as the new information considered herein has no bearing on those discussions. See the Small Numbers section of the 2021 final rule at 86 FR 5438-5440 and responses to comments on small numbers at 86 FR 5363-5368 (January 19, 2021).
The regulations governing the take of marine mammals incidental to geophysical survey activities contain an adaptive management component. We make no changes here. The comprehensive reporting requirements (described in detail in the Monitoring and Reporting section of NMFS' notice of issuance for the 2021 final rule (86 FR 5322, January 19, 2021)) are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the LOA-holders regarding practicability) on a regular (
Under this rule, NMFS plans to continue to implement an annual adaptive management process including BOEM, the Bureau of Safety and Environmental Enforcement (BSEE), industry operators (including geophysical companies as well as exploration and production companies), and others as appropriate. Industry operators may elect to be represented in this process by their respective trade associations. NMFS, BOEM, and BSEE (
All reporting requirements have been complied with under the rule to date. NMFS has received two annual reports compiled by industry trade associations in order to comply with the comprehensive reporting requirements. These reports, which consider LOA-specific reports received during the first and second years of implementation of the rule, are available online at:
NMFS' MMPA implementing regulations require that applicants for incidental take authorizations describe the suggested means of coordinating research opportunities, plans, and activities relating to reducing incidental taking and evaluating its effects (50 CFR 216.104 (a)(14)). Such coordination can serve as an effective supplement to the monitoring and reporting required pursuant to issued LOAs and/or incidental take regulations. NMFS expects that relevant research efforts will inform the annual adaptive management process described above, and that levels and types of research efforts will change from year to year in response to identified needs and evolutions in knowledge, emerging trends in the economy and available funding, and available scientific and technological resources. In the 2018 notice of proposed rulemaking, NMFS described examples of relevant research efforts (83 FR 29300-29301, June 22, 2018). We do not repeat that information here, but refer the reader to that notice for more information. The described efforts may not be predictive of any future levels and types of research efforts. Research occurring in locations other than the GOM may be relevant to understanding the effects of geophysical surveys on marine mammals or marine mammal populations or the effectiveness of mitigation. NMFS also refers the reader to the industry Joint Industry Program (JIP) website (
There are no relevant subsistence uses of marine mammals implicated by these actions. Therefore, as with the 2021 final rule, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7 of the ESA requires Federal agencies to insure that their actions are not likely to jeopardize the continued existence of endangered or threatened species or adversely modify or destroy their designated critical habitat. Federal agencies must consult with NMFS for actions that may affect such species under NMFS' jurisdiction or critical habitat designated for such species. At the conclusion of consultation, the consulting agency provides an opinion stating whether the Federal agency's
On March 13, 2020, NMFS' Office of Protected Resources, ESA Interagency Cooperation Division, issued a Biological Opinion (BiOp) on federally regulated oil and gas program activities in the Gulf of Mexico, including NMFS' issuance of the ITR and subsequent LOAs (as well as all BOEM and Bureau of Safety and Environmental Enforcement approvals of activities associated with the OCS oil and gas program in the GOM). The 2020 BiOp concluded that NMFS' proposed action was not likely to jeopardize the continued existence of sperm whales or Rice's whales. Of note, that BiOp evaluated the larger scope of survey activity originally contemplated for the rule, before BOEM revised the scope of its activity to remove the GOMESA area in the eastern GOM. The take estimates evaluated for this rule are, therefore, within the scope of take considered in the BiOp and do not reveal effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered. Thus, for this rule to consider corrected take estimates and other newly available information, NMFS has determined that re-initiation of consultation is not triggered under 50 CFR 402.16, although NMFS does anticipate amending the incidental take statement to reflect the corrected take estimates.
In 2017, BOEM produced a final PEIS to evaluate the direct, indirect, and cumulative impacts of geological and geophysical survey activities in the GOM, pursuant to requirements of the National Environmental Policy Act. These activities include geophysical surveys, as are described in the MMPA petition submitted by BOEM to NMFS. The PEIS is available online at:
In 2020, NMFS prepared a Record of Decision (ROD): (1) to adopt BOEM's Final PEIS to support NMFS' analysis associated with issuance of incidental take authorizations pursuant to section 101(a)(5)(A) or (D) of the MMPA and the regulations governing the taking and importing of marine mammals (50 CFR part 216); and (2) in accordance with 40 CFR 1505.2, to announce and explain the basis for NMFS' decision to review and potentially issue incidental take authorizations under the MMPA on a case-by-case basis, if appropriate.
The Council on Environmental Quality (CEQ) regulations state that agencies shall prepare supplements to either draft or final environmental impact statements if: (i) the agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. (40 CFR 1502.09(c)). NMFS has considered CEQ's “significance” criteria at 40 CFR 1508.27 and the criteria relied upon for the 2020 ROD to determine whether any new circumstances or information are “significant,” thereby requiring supplementation of the 2017 PEIS.
NMFS has not made any changes to the proposed action relevant to environmental concerns. For this rulemaking, NMFS reevaluated its findings related to the MMPA negligible impact standard and the LPAI standard governing its regulations in light of the corrected take estimates and other relevant new information. Based on that evaluation, NMFS reaffirms its negligible impact determinations and determined that the existing regulations prescribe the means of effecting the LPAI on the affected species or stocks and their habitat, and therefore made no changes to the regulations.
NMFS also considered whether there are any significant new circumstances or information that are relevant to environmental concerns and have a bearing on this action or its impacts. Our rulemaking was conducted specifically to address errors in the take estimates that provided a basis for our 2021 final rule. We considered updated take estimates that corrected the errors and incorporated other new information,
Under the incidental take regulations in effect for this specified activity, industry operators may apply for LOAs (50 CFR 217.186). We have made no changes to the regulations for obtaining an LOA. LOAs may be issued for any time period that does not exceed the effective period of the regulations, provided that NMFS is able to make the relevant determinations (50 CFR 217.183). Because the specified activity does not provide actual specifics of the timing, location, and survey design for activities that would be the subject of issued LOAs, such requests must include, at minimum, the information described at 50 CFR 216.104(a)(1) and (2), and should include an affirmation of intent to adhere to the mitigation, monitoring, and reporting requirements described in the regulations. The level of effort proposed by an operator will be used to develop an LOA-specific take estimate based on the results of Weirathmueller
If applicants do not use the modeling provided by the rule, NMFS may publish a notice in the
Technologies continue to evolve to meet the technical, environmental, and economic challenges of oil and gas development. The use of technologies other than those described herein will be evaluated on a case-by-case basis and may require public review. Some seemingly new technologies proposed for use by operators are often extended applications of existing technologies and interface with the environment in essentially the same way as well-known or conventional technologies. NMFS
Due to errors in the estimated take numbers provided by BOEM in support of its petition for the 2021 rule, the allowable amount of incidental take of marine mammals in the GOM is generally lower than the amount expected based on BOEM's projected activity levels. As a result, NMFS' ability to issue LOAs for take of marine mammals incidental to surveys related to oil and gas activities in the GOM has been limited, relative to what was intended under the rule for the specified activities. This rule corrects the estimated take numbers, allowing for the issuance of LOAs as intended under the 2021 rule. In addition, NMFS has incorporated newly available scientific data regarding marine mammal density in the GOM, and introduced new acoustic source configurations that provide more flexibility to applicants in terms of more accurately reflecting the anticipated effects of actual survey effort. The adjustments to allowable take under this final rule, relative to the 2021 final rule, have potential implications for oil and gas industry survey activity, associated oil and gas exploration and development, and marine mammals.
If applicants cannot receive LOAs, either within the requested year or at all, due to the annual maximum or five-year maximum take allowable under the 2021 final rule for certain species, surveys may be delayed. To date, NMFS has issued approximately 70 LOAs, which is fewer than expected based on BOEM's projected levels of activity. Some of this discrepancy may be attributed to the aforementioned limitations on NMFS' ability to authorize take of certain species under the 2021 final rule and/or to generally increased regulatory uncertainty stemming from those limitations. In the absence of this rule, NMFS would anticipate continuing limitations on its ability to issue LOAs over the remaining period of effectiveness for the 2021 rule, though specific impacts would be dependent on demand and difficult to predict with precision. Delays could result in reductions in exploration and development activities in the GOM. This correction removes these unintended restrictions, averting the potential economic losses from delay.
If NMFS is unable to issue some LOAs for the specified activities as a result of the erroneous take estimates analyzed for the 2021 rule, restrictions on incidental take may result in fewer incidences of harassment of marine mammals relative to those initially anticipated in 2021. This final rule, which is based on corrected take estimates and other updated information for the same specified activities, may allow for more take of four species than would occur without this rule, though the updated take estimates (and thus allowable take) for all other species has decreased in reflection of updated density information. The corrections to allowable take may result in more actual take of some marine mammal species than has occurred under the rule to date, as a result of increased ability to issue requested LOAs. This final rule allows for the authorization of marine mammal take incidental to the same level of survey activities intended in the 2021 rule and is issued in accordance with the same applicable negligible impact standard.
To the extent that some number of surveys that would not have been able to move forward in compliance with the MMPA under the 2021 rule might now occur under this corrected rule, there may be effects on tourism, ecosystem services, and non-use valuations. NMFS describes each of these values below.
Marine mammal populations generate economic activity in the GOM and, more broadly, in the U.S. For example, the U.S. leads the world in whale watcher participation, with an estimated 4.9 million trips taken in 2008, or 38 percent of global whale watching trips. In 2013, the tourism and recreation sector of ocean-related activities in the GOM region (inclusive of all counties bordering the GOM) generated nearly $6.2 billion in wages and employed 310,000 individuals at 17,300 establishments, for a total GDP contribution of approximately $13 billion. Much of that ocean-related tourism is reliant on the diverse and abundant marine mammal and other marine wildlife populations.
The presence of marine mammals generates regional income and employment opportunities most directly through businesses that conduct marine mammal watching tours and other marine wildlife-related operations, such as educational and environmental organizations. Whale watching activities alone support hundreds of jobs and tens of millions in regional income in the GOM. In addition, tourists drawn to the region to participate in these tours and activities spend money on goods and services in the regional economy, for example for meals, accommodations, or transportation to and from the whale watching destination. According to a 2009 report, the number of whale watchers in the GOM states increased to over 550,000 in 2008, nearly an order of magnitude increase over a ten year time period (Exhibit 5-1). Direct revenues from sales of whale watching tickets was $14.1 million that year, and the overall regional spending related to whale watching was nearly $45 million. An estimated 625 full-time equivalent jobs were directly involved in marine mammal recreation across all GOM states in 2008.
Florida is the leading state for cetacean-based tourism in the country. Bottlenose dolphin viewing constitutes the majority of Florida's marine mammal-related tourism with average ticket prices of approximately $43 for boat-based trips and $95 for swim-with tours. Elsewhere in the GOM, in Alabama and Texas, average ticket prices are $11 to $22. Commercial whale watching activity is minimal in Mississippi and Louisiana.
Large whales provide ecosystem services, which are benefits that society receives from the environment. The services whales provide include contributing to sense of place, education, research, and they play an important role in the ecosystem. Large whales are considered ecosystem engineers, given their potential for trophic influence on their ecosystems. Their presence can reduce the risk of trophic cascades, which have previously affected smaller species when whale populations suffered historic declines. As large consumers, whales heavily impact food-web interactions and can promote primary productivity. Large whales may contribute to enhanced ocean productivity via a concept commonly known as the “whale-pump.” The “whale-pump” refers to whales' contribution to vertical mixing, horizontal transfer, and the recycling of limiting nutrients in the ocean as they dive, migrate, and release fecal plumes and urine (Roman
The protection and restoration of populations of endangered whales may also generate non-use benefits. Economic research has demonstrated that society places economic value on environmental assets, whether or not those assets are ever directly exploited. For example, society places real (and potentially measurable) economic value on simply knowing that large whale populations are flourishing in their natural environment (often referred to as “existence value”) and will be preserved for the enjoyment of future generations. Using survey research methods, economists have developed several studies of non-use values associated with protection of whales or other marine mammals (table 15).
In each study in table 15, researchers surveyed individuals on their willingness to pay (WTP) for programs that would maintain or increase marine mammal populations. One of the studies (Wallmo and Lew, 2012) employed a stated preference method to estimate the value of recovering or down-listing eight ESA-listed marine species, including the North Atlantic right whale. Through a survey of 8,476 households, the authors estimated an average WTP (per household per year, for a 10-year period) of $71.62 for recovery of the species which, if extrapolated nationwide, suggests Americans are willing to pay approximately $4.38 billion for right whale recovery. While the other studies noted do not focus specifically on the North Atlantic right whale, they do demonstrate that individuals derive significant economic value from the protection of marine mammals. As noted, the value of whales might not be adequately captured by non-use values of this kind. Death or suffering of whales might be believed to be intrinsically bad, because it is a welfare loss in itself.
Pursuant to section 605(b) of the Regulatory Flexibility Act, the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. This rule makes no changes to the existing regulations. Upon receiving updated information following the discovery that the estimates of incidental take of marine mammals anticipated from the activities analyzed for the January 19, 2021, final rule were erroneous, NMFS undertook this action to analyze the updated information and underlying take estimates and decide whether revisions to the January 19, 2021, final rule were warranted. NMFS has found that revisions to the regulations are not warranted. There are no changes to the specified activities, the specified geographical region in
Note that NMFS prepared a final regulatory flexibility analysis (FRFA), as required by Section 603 of the Regulatory Flexibility Act, for the regulations issued under the January 19, 2021, final rule. That FRFA described the economic effects on small entities. A copy of the FRFA is available as Appendix B to the RIA that accompanied the January 19, 2021, final rule. No changes have been made to the 2021 regulations that would affect the findings of that FRFA, which were summarized in the notice of issuance for the 2021 final rule (86 FR 5443, January 19, 2021).
This rule does not contain a change to a collection of information requirement for purposes of the Paperwork Reduction Act of 1995. The existing collection of information requirements continue to apply under the following OMB Control Number(s): 0648-0151.
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.
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
As described above, because NMFS does not find that new mitigation measures are required, this rule does not amend the current applicable regulations at 50 CFR part 217 Subpart S (§§ 217.180 through 217.189). Thus, no amendatory instructions are necessary.
Bureau of Ocean Energy Management, Interior.
Final rule.
The Department of the Interior (the Department or DOI), acting through the Bureau of Ocean Energy Management (BOEM), is amending its risk management and financial assurance regulations. This final rule revises criteria for determining whether oil, gas, and sulfur lessees, right-of-use and easement (RUE) grant holders, and pipeline right-of-way (ROW) grant holders are required to provide financial assurance above the current minimum bonding levels to ensure compliance with their Outer Continental Shelf Lands Act (OCSLA) obligations. This final rule streamlines the criteria for evaluating the financial health of lessees and grantees, codifies the use of the Bureau of Safety and Environmental Enforcement's (BSEE) probabilistic estimates of decommissioning costs in setting the level of demands for supplemental financial assurance, removes restrictive provisions for third-party guarantees and decommissioning accounts, adds new criteria for cancelling supplemental financial assurance, and clarifies bonding requirements for RUEs serving Federal leases. BOEM estimates that a total of $6.9 billion in new supplemental financial assurance will be required from lessees and grant holders under this final rule to cover potential costs of decommissioning activities. This final rule significantly increases the amount of financial assurance available to the U.S. Government in the case of a lessee default and meaningfully reduces the risk to the government and consequently to the U.S. taxpayer. This final rulemaking does not apply to renewable energy activities.
This final rule is effective on June 24, 2024. You may make comments on the information collection (IC) burden in this rulemaking and the Office of Management and Budget (OMB) and BOEM must receive such comments on or before May 24, 2024. The IC burden comment opportunity does not affect the final rule effective date.
BOEM has established a docket for this action under Docket No. BOEM-2023-0027. All documents in the docket are listed on the
You may submit comments on the IC to OMB's desk officer for the Department of the Interior through
Kelley Spence, Office of Regulations, BOEM, 45600 Woodland Road, Sterling, Virginia 20166, at email address
The purpose of this final regulatory action is to address concerns regarding BOEM's financial assurance program. This rule finalizes amendments to the existing provisions to better protect the taxpayer from bearing the cost of facility decommissioning and other financial risks associated with OCS development, such as environmental remediation. Additionally, this final rule provides regulatory clarity to OCS lessees regarding their financial obligations by codifying requirements in the Code of Federal Regulations (CFR).
Since 2009, more than 30 corporate bankruptcies have occurred involving offshore oil and gas lessees that did not have sufficient financial assurance to cover their decommissioning liabilities. These bankruptcies have highlighted a weakness in BOEM's current supplemental financial assurance program. BOEM's existing program has, at times, been unable to forecast financial distress of these lessees and grantees that have not previously provided supplemental financial assurance and, as a result, BOEM has not had sufficient time to require and receive supplemental financial assurance prior to a declaration of bankruptcy. Additionally, challenges arising from bankruptcy proceedings, including the inability to sell less valuable assets that fail to generate new buyers at auction, can result in unplugged wells and orphaned infrastructure, potentially resulting in the American taxpayer paying to plug those wells and decommission that abandoned infrastructure. The amendments finalized in this rulemaking under section 5 of OCSLA (43 United States Code (U.S.C.) 1334) and Secretary's Order 3299 strengthen BOEM's financial assurance program to better protect the taxpayer from bearing the cost of facility decommissioning and other financial risks associated with OCS development.
The following major provisions are included in this final rule:
• streamlining the criteria used for evaluating the financial health of lessees and grantees,
• codifying the use of the BSEE probabilistic estimates of decommissioning cost for determining the amount of supplemental financial assurance required,
• removing restrictive provisions for third-party guarantees and decommissioning accounts,
• adding new criteria under which a bond or third-party guarantee that was provided as financial assurance may be canceled, and
• clarifying financial assurance requirements for RUEs serving Federal leases.
With this rulemaking, the Department is finalizing an amendment to revise the criteria used to evaluate the need for supplemental financial assurance from the existing five criteria—financial capacity, projected financial strength, business stability, reliability in meeting obligations based on credit rating or trade references, and record of compliance with laws, regulations, and lease terms—to one of two criteria: (1) credit rating and (2) the ratio of the value of proved reserves to decommissioning liability associated with those reserves. Specifically, the Department is finalizing the use of an investment grade credit rating threshold (or proxy credit rating equivalent) and a minimum 3-to-1 ratio of the value of proved reserves to decommissioning liability associated with those reserves to determine if a lessee is required to provide supplemental financial assurance. If a current lessee meets one of these criteria, it will not be required to provide supplemental financial assurance. These amendments codify a forward-looking analysis for determining the need for supplemental financial assurance and strengthen BOEM's financial assurance program by providing a more accurate method for analyzing a lessee's financial health.
The Department is also finalizing the use of the BSEE probabilistic estimates of decommissioning cost for determining the amount of supplemental financial assurance required. The new estimates are based on industry-reported decommissioning costs pursuant to the notice-to-lessees (NTL) requiring the submittal of such data. Previously, BSEE provided a single algorithm-based deterministic estimate for OCS facilities for determining decommissioning cost estimates. Based on the reported data, BSEE has developed three probabilistic estimates (
The Department's goal for BOEM's financial assurance program continues to be the protection of the American taxpayers from exposure to financial loss associated with OCS development, while ensuring that the financial assurance program does not detrimentally affect offshore investment or position American offshore exploration and production at a competitive disadvantage. The Department acknowledges that the new regulations could have a significant financial impact on affected companies, and for that reason, the Department is finalizing the amendment, as proposed, to phase in the new financial assurance requirements over a 3-year period for existing leaseholders.
The regulatory amendments in this rulemaking are expected to increase the total amount of financial assurance required from OCS lessees and grant holders. Those lessees that do not meet the updated criteria to avoid providing financial assurance will realize an increased compliance cost in the form of bonding premiums. BOEM has drafted a Regulatory Impact Analysis (RIA) detailing the estimated impacts of the respective provisions of this final rule and has included it in the docket. The impacts reflect both monetized and non-monetized impacts; the costs and benefits of the non-monetized impacts are discussed qualitatively in the document. The table below summarizes BOEM's monetized estimate of the cost of increased bonding premiums paid by lessees over a 20-year period. Additional information on the estimated transfers, costs, and benefits can be found in the RIA available in the docket for this rulemaking (Docket No. BOEM-2023-0027).
This final rule affects holders of oil, gas, and sulfur leases, ROW grants, and RUE grants on the OCS. The analysis shows that this includes roughly 391 companies with ownership interests in OCS leases and grants. Entities that operate under this rule are classified primarily under North American Industry Classification System (NAICS) codes 211120 (Crude Petroleum Extraction), 211130 (Natural Gas Extraction), and 486110 (Pipeline Transportation of Crude Oil and Natural Gas). For NAICS classifications 211120 and 211130, the Small Business Administration (SBA) defines a small business as one with fewer than 1,250 employees; for NAICS code 486110, it is a business with fewer than 1,500 employees. Based on this criterion, approximately 271 (69 percent) of the businesses operating on the OCS subject to this rule are considered small; the remaining businesses are considered large entities. All the operating businesses meeting the SBA classification are potentially impacted; therefore, BOEM expects that the rule will affect a substantial number of small entities.
BOEM has estimated the annualized increase in compliance costs to lessees and RUE and ROW grant holders and allocated those to small and large entities based on their decommissioning liabilities. BOEM's analysis estimates small companies could incur $421 million (7 percent discounting) in annualized compliance costs from its changes. The Bureau recognizes that there will be incremental cost burdens to most affected small entities and has included a 3-year, phased compliance approach to reduce burden associated with the transition to the requirements of this rule. The changes are designed to balance the risk of non-performance with the compliance burdens that are associated with the requirement to provide supplemental financial assurance. Additional information about these conclusions can be found in the RIA for this rule.
Entities potentially affected by this final action are holders of oil, gas, and sulfur leases, ROW grants, and RUE grants on the OCS.
In addition to being available in the docket, BOEM will post an electronic copy of the documents related to this final action at:
BOEM's full response to comments on the June 29, 2023, notice of proposed rulemaking (NPRM), including any comments not discussed in this preamble, can be found in the memorandum titled,
Section 5 of OCSLA (43 U.S.C. 1334), authorizes the Secretary of the Interior (Secretary) to issue regulations to administer OCS leasing for mineral development. Section 5(a) of OCSLA (43 U.S.C. 1334(a)) authorizes the Secretary to “prescribe such rules and regulations as may be necessary to carry out [provisions of OCSLA]” related to leasing on the OCS. Section 5(b) of OCSLA (43 U.S.C. 1334(b)) provides that “compliance with regulations issued under” OCSLA must be a condition of “[t]he issuance and continuance in effect of any lease, or of any assignment or other transfer of any lease, under the provisions of” OCSLA. Section 18 of OCSLA (43 U.S.C. 1344) states that, “Management of the [OCS] shall be conducted in a manner which considers economic, social, and environmental values of the renewable
The Secretary, in Secretary's Order 3299 (as amended), established BOEM and delegated to it the authority to carry out conventional energy- (
For more information on the statutory authority for this rule, see the preamble to the proposed rule at 88 FR 42138, June 29, 2023.
The Minerals Management Service (MMS), BOEM's predecessor, published the existing financial assurance requirements for oil, gas, and sulfur leases and pipeline ROW grants on May 22, 1997 (62 FR 27948). These regulations required lease-specific or area-wide base bonds in prescribed amounts, depending on the level of activity on a lease, and provided the authority to require additional supplemental financial assurance for leases above the base bonds depending on the financial health of the lessee. Additionally, MMS published the existing financial assurance requirements for RUE grants on December 28, 1999 (64 FR 72756). These regulations did not dictate a specific bond amount for a RUE but did provide the authority to require bonding if necessary. BOEM employs the same criteria for RUE and ROW grants as it does for leases to determine whether supplemental financial assurance is required, because specific criteria pertaining to supplemental financial assurance for grants do not exist in the current regulations.
The current bonding regulations at 30 CFR 556.901(d) provide five criteria that the Regional Director uses to determine whether a lessee's potential inability to carry out present and future decommissioning obligations warrants a demand for supplemental financial assurance; however, the current bonding regulations do not specifically describe how the criteria are weighted. To provide guidance, MMS issued a Notice to Lessees (NTL) effective December 28, 1998, which provided details on how it would apply the five criteria (NTL No. 98-18N). This NTL was superseded by NTL No. 2003-N06, effective June 17, 2003, and that NTL was later superseded by NTL No. 2008-N07, which was effective August 28, 2008. Most recently, NTL No. 2008-N07 was superseded on September 12, 2016, with NTL No. 2016-N01, which was later rescinded in February of 2020.
In December 2015, the Government Accountability Office (GAO) reviewed BOEM's supplemental financial assurance procedures and issued a report titled “Offshore Oil and Gas Resources: Actions Needed to Better Protect Against Billions of Dollars in Federal Exposure to Decommissioning Liabilities.” (GAO Report). While acknowledging BOEM's ongoing efforts to update its policies, the GAO Report recommended, inter alia, that “BOEM complete its plan to revise its supplemental financial assurance procedures, including the use of alternative measures of financial strength.”
On October 16, 2020, DOI issued a notice of proposed rulemaking (85 FR 65904) to revise certain BSEE policies concerning decommissioning orders and the Department's financial assurance regulations that are administered by BOEM. In the joint proposed rule, the Department proposed to adjust the supplemental financial assurance criteria to reflect the risk mitigation already provided by the joint and several liability of financially stable co-lessees and predecessor lessees. The Department's regulations hold predecessors responsible for some or all of the decommissioning when a current lessee is unable to perform its obligations. In the 2020 proposed rule, the Department proposed to consider the financial stability of predecessor lessees by waiving supplemental financial assurance requirements for a current lessee when there is a financially strong predecessor lessee. The Department also proposed to change the methodology for measuring financial strength to focus on credit rating and the value of proved oil and gas reserves and to apply the credit rating methodology to RUE grants and ROW grants as well.
On April 18, 2023, DOI finalized the BSEE-administered provisions of the 2020 proposal (88 FR 23569). The Department's 2023 final rule implements provisions of the 2020 proposed rule to clarify decommissioning responsibilities of RUE grant holders and to formalize BSEE's policies regarding performance by predecessors ordered to decommission OCS facilities.
On June 29, 2023, the Department proposed a new rule in lieu of finalizing the BOEM provisions of the 2020 joint proposal. The new proposed rule provided recommended revisions to the regulations concerning risk management and financial assurance for OCS lease and grant obligations. This final action addresses the public comments received on the June 29, 2023, proposal and finalizes amendments to those regulations. For more details on the history of the bonding regulations, see the preamble to the proposed rule at 88 FR 42138.
The purpose of this rulemaking is to finalize amendments to address concerns regarding BOEM's financial assurance program. This rule finalizes amendments to the existing provisions to better protect the taxpayer from bearing the cost of facility decommissioning and other financial risks associated with OCS development, such as environmental remediation. This rule also provides regulatory clarity to OCS lessees regarding their financial obligations by codifying requirements in the CFR.
As discussed in the preamble to the proposed rule (88 FR 42140), the GAO identified three main shortcomings in the Department's prior approach to financial assurance: (1) the Department faced challenges in determining actual decommissioning liabilities due to data system limitations and inaccurate data; (2) the Department did not require sufficient financial assurance to cover liabilities, primarily due to the practice
Importantly, relatively few major facilities have been decommissioned (relative to the number installed) because the vast majority of facilities are or were recently actively producing. As more facilities reach the end of their useful life, however, decommissioning will be required on a larger scale. Accordingly, previously low losses to the government are not a reliable indicator for future losses. The GAO has in fact asserted the opposite and has notified Congress that the current program must be revised to avoid putting the government in an untenable situation.
On February 20, 2024, the GAO issued a new report titled
Since 2009, more than 30 corporate bankruptcies have occurred involving offshore oil and gas lessees with decommissioning liabilities that were not covered by financial assurance. The fact that bankruptcies have involved decommissioning liabilities without sufficient supplemental financial assurance demonstrates that the waiver criteria in NTL No. 2008-N07 were inadequate to protect the public from potential responsibility for OCS decommissioning liabilities, especially during periods of low oil and gas prices. For example, ATP Oil & Gas was a mid-sized company with a supplemental financial assurance waiver when it filed for bankruptcy in 2012. Similarly, Bennu Oil & Gas LLC, had a waiver at the time of its bankruptcy filing, and Energy XXI, Ltd. and Stone Energy Corporation obtained waivers less than a year before filing for bankruptcy. While most OCS leases affected by the bankruptcies were ultimately sold or retained by the companies reorganized under chapter 11 of the U.S. Bankruptcy Code, these bankruptcies highlighted the weakness in BOEM's supplemental financial assurance program. BOEM's existing program has, at times, been unable to forecast financial distress of these lessees and grantees that have not previously provided supplemental financial assurance and, as a result, BOEM has not had sufficient time to require and receive supplemental financial assurance prior to a declaration of bankruptcy.
Additionally, challenges arising in bankruptcy proceedings, including the inability to sell less valuable assets that fail to generate new buyers at auction, can result in unplugged wells and orphaned infrastructure. This could result in the American taxpayer paying the cost to plug those wells and decommission that abandoned infrastructure. The amendments finalized in this rulemaking strengthen BOEM's financial assurance regulations to better protect the taxpayer from bearing the cost of facility decommissioning and other financial risks associated with OCS development.
On June 29, 2023, DOI published an NPRM in the
After examining the financial assurance costs in conjunction with risk coverages derived from using different P-values for decommissioning costs over different time periods for the full implementation of this rule, BOEM proposed that an adequate balance between OCS development and financial risk level on the OCS is achieved by the combination of a P70 value and a phase-in period of 3 years. The proposed phased-in approach allows the lessee, grant holder, or operator to submit the amount due over 3 fiscal years, which is specifically designed to mitigate the disruptive impact of large, immediate financial assurance demands. BOEM notes that poorly-capitalized companies with end-of-life assets may declare bankruptcy at the P70 level, but that bankruptcy would also be a risk under a P90 or a P50 level threshold. It was BOEM's conclusion that a P70 threshold with a 3-year phase-in achieves an adequate balance between the level of protection against the risks that the proposed rule intends to manage with a reasonable period of time to fully implement the costs derived from these policy changes. Details regarding each of the specific proposal provisions are discussed in section III of this preamble.
For each topic, this section provides a description of what the Department proposed, what the Department is finalizing, and a summary of key comments and responses for each proposal provision. BOEM's full response to comments on the June 29, 2023, NPRM, including any comments not discussed in this preamble, can be found in the memorandum titled,
The Department proposed and is finalizing revisions to the supplemental financial assurance requirements for oil, gas, and sulfur leases, RUE grants, and pipeline ROW grants, as discussed in the subsections below.
In the June 29, 2023, NPRM, the Department proposed changes to the lease financial assurance requirements to (1) modify the evaluation process for requiring supplemental financial assurance by clarifying and streamlining the evaluation criteria, and (2) remove restrictive provisions for third-party guarantees and decommissioning accounts. The proposed rule would allow the Regional Director to require supplemental financial assurance when a lessee or grant holder poses a substantial risk of becoming financially unable to carry out its obligations under its lease or grant, or when the property may not have sufficient value to be sold to another company that could assume those obligations. In the former case, the risk that the taxpayer might have to take on the financial obligations of a lessee or grant holder is mitigated when there is a co-lessee or co-grant holder that has sufficient financial capacity to carry out the obligations. These proposed provisions, the key public comments received on the provisions, and the Department's final amendments are discussed in the following subsections. A summary of all comments received regarding revisions to lease financial assurance provisions and BOEM's corresponding responses can be found in section 3 of the
Additionally, DOI also proposed to use the costs of decommissioning resulting from BSEE's new methodology, which provides probabilistic costs using a database of reported decommissioning costs on the OCS, to determine the amount of supplemental financial assurance required, as discussed in section III.B of this preamble.
Lessees are jointly and severally liable for the lease decommissioning obligations that accrue during their ownership, as well as those that accrued prior to their ownership, which means that each current co-lessee is liable for the full obligation and BSEE may pursue full performance from any individual current lessee. See,
BOEM's existing supplemental financial assurance evaluation process, contained in 30 CFR 556.901(d), is not clear to what extent co-lessee financial capacity is to be considered. The Department proposed to codify in 30 CFR 556.901(d)(3) that this process includes an evaluation of the ability of a co-lessee to carry out present and future obligations. This proposed amendment recognizes that all current owners are benefiting from ongoing operations and are jointly and severally liable for compliance with DOI requirements. All current co-lessees are equally liable for present nonmonetary obligations and such future obligations that accrue while they are co-lessees. As proposed, BOEM would not require supplemental financial assurance for properties where at least one co-lessee meets the credit rating threshold. A summary of the comments received is provided here.
The Department proposed to revise the criteria in 30 CFR 556.901(d) used to evaluate the need for supplemental financial assurance from lessees from the five criteria—financial capacity, projected financial strength, business stability, reliability in meeting obligations based on credit rating or trade references, and record of compliance with laws, regulations, and lease terms—to a simpler analysis of one of two criteria: (1) credit rating or (2) the ratio of the value of proved reserves to decommissioning liability associated with those reserves. As discussed in the preamble to the proposed rule at 88 FR 42142-42144, the Department proposed to eliminate the “business stability” and the “record of compliance” criteria, to replace the “financial capacity” and “reliability” criteria with issuer credit rating or proxy credit rating, and to replace the “projected financial strength” criterion with a ratio of the value of proved oil and gas reserves on a lease to the decommissioning liability associated with those reserves.
Specifically, DOI proposed the following in 30 CFR 556.901(d) to determine whether supplemental financial assurance on a lease may be required: (1) a credit rating, either from an Nationally Recognized Statistical Rating Organization (NRSRO), as identified by the United States Securities and Exchange Commission (SEC) pursuant to its grant of authority under the Credit Rating Agency Reform Act of 2006 and its implementing regulations at 17 CFR parts 240 and 249, or a proxy credit rating determined by BOEM based on a company's audited financial statements; or (2) a minimum ratio of the value of proved oil and gas reserves on a lease to the decommissioning liability associated with those reserves. For discussion of the justification of the credit rating selected and the minimum reserves to decommissioning liabilities ratio selected, see section III.D of this preamble.
These proposed criteria better align BOEM's evaluation process with accepted financial risk evaluation methods used by the banking and finance industry. As discussed in the preamble to the proposed rule (88 FR 42142), eliminating subjective or less precise criteria—such as the length of time in operation to determine business stability or trade references to determine reliability in meeting obligations—will simplify the process and remove criteria that often do not accurately or consistently predict financial distress. Additionally, the Department solicited comments on any other appropriate criteria for use in evaluating the need for supplemental financial assurance from OCS lessees.
The Department is finalizing the replacement of the five criteria in 30 CFR 556.901(d) with two criteria for lessees: (1) credit rating and (2) the ratio of the value of proved reserves to decommissioning liability associated with those reserves. This amendment codifies a forward-looking analysis for determining the need for supplemental financial assurance in lieu of the backward-looking analysis that resulted from the use of the five criteria or that would result from using INCs as an indicator. For a summary of all comments received regarding the streamlining of the evaluation criteria, including the removal of the record of compliance criterion, and BOEM's corresponding responses, see sections 3.1 through 3.6 of the
In the June 29, 2023, NPRM, the Department proposed changes to the RUE financial assurance requirements to clarify the financial assurance requirement for RUEs serving Federal leases, which is not explicitly addressed in the existing regulations. These proposed provisions, the public
The Department proposed to revise 30 CFR 550.166 to provide that any RUE grant holder must provide base financial assurance in a specific amount, regardless of whether the RUE serves a State lease or a Federal OCS lease and proposed a Federal RUE base financial assurance requirement matching the existing $500,000 base financial assurance requirement for State RUEs. For a summary of all comments received regarding revisions to base financial assurance provisions for RUEs and BOEM's corresponding responses, see section 4 of the
With this rulemaking, the Department is finalizing 30 CFR 550.166, as proposed, that provides that any RUE grant holder must provide base financial assurance of $500,000, regardless of whether the RUE serves a State lease or a Federal OCS lease, to match the existing base financial assurance requirements for State RUEs.
The Department proposed in 30 CFR 550.166(a) a $500,000 area-wide base financial assurance for RUE grant holders, which would satisfy the base financial assurance requirement for any RUE holder that owns one or more RUEs within the same OCS area, regardless of whether the RUE serves a State or Federal lease. Additionally, the Department proposed in 30 CFR 550.166(a)(1) to allow any lessee that has previously posted area-wide lease financial assurance (pursuant to 30 CFR 556.900(a)(1) or 556.901(a)(2) or (b)(2) for the areas specified in 30 CFR 556.900(a)(2)) to modify that lease financial assurance to also cover any RUE(s) in the area owned by that lessee. The ability to use area-wide lease financial assurance to cover the RUE base financial assurance obligation would be subject to the requirement that the area-wide lease financial assurance be in an amount equal to or greater than the RUE base financial assurance requirement (
As discussed in the preamble to the proposed rule at 88 FR 42144, the proposed rule at 30 CFR 550.166(a)(1) would allow any lessee that has already posted area-wide lease financial assurance to modify that lease surety bond to also cover any RUE(s) in the area owned by the same lessee. The ability to use the area-wide lease financial assurance to cover the RUE base financial assurance would be subject to the requirement that the area-wide lease financial assurance would be in an amount equal to or greater than the RUE base financial assurance requirement. For example, under the proposal, a lessee with a $3 million area-wide lease surety bond could establish or acquire any number of Federal or State RUEs in the area without having to post any additional financial assurance (other than, potentially, supplemental financial assurance), provided the lessee agrees to modify the terms of its area-wide lease surety bond to also cover any State or Federal RUEs that it owns or acquires. If the existing area-wide financial assurance is not modified, the lessee may satisfy the requirement by providing new financial assurance to cover its RUE(s). In the example, BOEM believes the $3 million area-wide lease surety bond is sufficient to cover the RUE $500,000 requirement. The Department is finalizing this provision as proposed, in addition to new supplemental financial assurance requirements for RUE grant-holders that do not maintain an investment grade credit rating. As discussed earlier in this preamble, BOEM plans to evaluate the specific values of the base supplemental financial assurance for RUEs, ROWs, and leases in a future rulemaking.
The Department is finalizing, as proposed in 30 CFR 550.166(a), the option to provide $500,000 area-wide RUE financial assurance, which will satisfy the base financial assurance requirement for any RUE holder that owns one or more RUEs within the same OCS area, regardless of whether the RUE serves a State or Federal lease. Lessees that have previously posted area-wide lease financial assurance will be able to modify that lease surety bond to also cover any RUE(s) in the area owned by the same lessee. The ability to use area-wide lease financial assurance to cover the RUE base financial assurance obligation will be subject to the requirement that, in addition to covering the lease financial assurance requirement, the area-wide lease financial assurance must include an amount equal to or greater than the RUE base financial assurance requirement (
The Department proposed to replace the general statement in 30 CFR 550.160(c) that RUE grant holders “must meet bonding requirements” with the specific criteria governing financial assurance requirements found in proposed 30 CFR 556.900 through 556.902, and the applicable financial assurance requirements in 30 CFR 550.166 and 30 CFR part 556, subpart I. Similar to the proposed changes to the evaluation criteria for lease holders, DOI proposed in 30 CFR 550.166(b) to consider the credit rating or proxy credit rating of RUE co-grant holders to determine if a grantee must provide supplemental financial assurance. The
The Department is finalizing, as proposed, 30 CFR 550.160(c), which provides that a RUE grant-holder may be required to provide supplemental financial assurance if they do not maintain an investment grade issuer credit rating or proxy credit rating equivalent. This change is consistent with the evaluation of oil and gas lessees found in finalized 30 CFR 556.901(d). The Department is also finalizing, as proposed, that the value of proved oil and gas reserves will not be considered in this evaluation because a RUE grant does not entitle the holder to any interest in the associated oil and gas reserves.
Existing bonding requirements for pipeline ROW grants, contained in 30 CFR 550.1011, prescribe a $300,000 area-wide base surety bond that guarantees compliance with all the terms and conditions of the pipeline ROW grants held by a company in an OCS area. Additionally, existing 30 CFR 550.1011(a)(2) states that BOEM may require a pipeline ROW grant holder to provide supplemental financial assurance if the Regional Director determines that financial assurance in excess of $300,000 is needed but, unlike with leases, the regulation provides no factors for the Regional Director's consideration when making this determination. Similar to the proposed changes to the evaluation criteria for lease holders, DOI proposed in 30 CFR 550.1011(c) to consider the credit rating or proxy credit rating of ROW co-grant holders to determine if the grantee must provide supplemental financial assurance. The value of proved oil and gas reserves was not included in this evaluation because a ROW grant does not entitle the holder to any interest in the associated oil and gas reserves. For a summary of all comments received regarding revisions to ROWs and BOEM's corresponding responses, see section 5 of the
DOI is finalizing, as proposed, 30 CFR 550.1011, which provides for an evaluation of pipeline ROW grant-holders using the criterion proposed for lessees (
The Department is finalizing the use of an investment grade credit rating or proxy credit rating for pipeline ROW co-grant holders to determine if a grant holder must provide supplemental financial assurance, consistent with the evaluation of oil and gas lessees in 30 CFR 550.1011(a)(2). The value of proved oil and gas reserves will not be considered in this evaluation because a ROW grant does not entitle the holder to any interest in oil and gas reserves.
When determining the necessary amount of supplemental financial assurance, BSEE previously provided to BOEM a single, algorithm-based deterministic estimate for decommissioning costs of OCS facilities. In 30 CFR 556.901, the Department proposed to replace BSEE's former single, algorithm-based deterministic estimates for OCS facility decommissioning costs with the new BSEE methodology that provides probabilistic estimates (
BOEM received a wide range of comments on the use of the P70 value that are discussed generally below. A
BOEM's goal for its financial assurance program continues to be the protection of the American taxpayers from exposure to financial loss associated with OCS development, while ensuring that the financial assurance program does not detrimentally affect offshore investment or position American offshore exploration and production at a competitive disadvantage. A P70 financial assurance level will reduce offshore decommissioning risk to taxpayers relative to previous BSEE deterministic decommissioning estimates, while attempting to reduce the burden on available capital for continued OCS investment that would be imposed by using P90. BOEM's use of the P70 decommissioning value balances the risk of being underfunded at lower financial assurance levels against the risk of setting a financial assurance level at higher P-values that would overstate the costs in a significant number of cases.
BOEM considered bonding at P90, which would result in the lowest risk of the proposed options to the taxpayer from underfunded offshore decommissioning liabilities. However, P90 would result in an approximately 40 percent chance of being over bonded. In addition, BOEM considered the cost of financing, which would generally (particularly in high interest rate environments) increase the risks of burdensome over bonding. BOEM's analysis concluded that the increased cost to lessees resulting from adopting P90 rather than P70 would be too high when compared to the additional risk reduction. As a result, BOEM concluded that P70 reflects a risk tolerance that is neither too aggressive nor too conservative, striking an appropriate balance between the risk of default to the taxpayer and the burden to the regulated community.
Actual expenditure data has been collected by regulation since April 2016 for wells and facilities, and since May 2017 for pipelines. To date, BSEE has collected about 2,050 data points for wells, 1,235 for facilities (including removal and site clearance and verification), and 1,020 for pipelines. This actual expenditure data collected shows a wide range of costs for similarly situated infrastructure, making a probabilistic approach preferred over a single deterministic estimate. When sufficient data exists for a particular subset of the sample (
Based on these distributions, BSEE posts P50, P70, and P90 estimates for each well, platform, or pipeline, and aggregated for each lease, ROW, or RUE.
It would be inappropriate for BOEM to consider the liability distribution across a company's entire portfolio, as financial assurance for one lease cannot be used to cover an unassociated lease. Financial assurance provided to BOEM is generally structured to provide coverage at the lease level; even for companies with multiple leases, policy coverage is typically limited to only those associated facilities on the specified lease. For example, financial assurance at BSEE's P70 level provides risk mitigation in the event of a default of that lessee where any excess financial assurance resulting from facilities on the same lease whose decommissioning costs were below the P70-estimate would be available to cover associated lease facilities whose decommissioning costs exceed the P70 value. For lessees or grant-holders that can demonstrate decommissioning costs below BSEE's estimates, the Department has included in the final rule a provision in 30 CFR 556.901(g) allowing for the submission of decommissioning cost data for consideration by the Regional Director in potentially reducing the supplemental financial assurance demand. Such information could include, for example, an existing contract for decommissioning activities. BOEM will consult with BSEE on the
BOEM's goal for its financial assurance program continues to be the protection of the American taxpayer from exposure to financial loss associated with OCS development, while ensuring that the financial assurance program does not detrimentally affect offshore investment or position American offshore exploration and production companies at a competitive disadvantage.
The Department proposed and is finalizing revisions to the supplemental financial assurance requirements for third-party guarantees and decommissioning accounts, and prerequisites for transfers, as discussed in the subsections below.
The Department proposed in 30 CFR 556.905(a) to evaluate a potential guarantor using the same credit rating or proxy credit rating criterion as was proposed for lessees. The value of proved oil and gas reserves of an associated lease would not be considered because that value is a characteristic of the lease belonging to the guaranteed lessee and not an asset belonging to the guarantor, and because liquid assets are needed to finance compliance or decommissioning. As discussed in the preamble to the proposed rule (88 FR 42145), the criteria to evaluate a guarantor provided in the existing regulations have proved difficult to apply. Using the same financial evaluation criterion,
Additionally, to allow more flexibility in the use of third-party guarantees, the final rule allows a third-party guarantee to be used as supplemental financial assurance for a RUE or ROW grant as well as a lease. Most significantly, the amendment proposed in § 556.902(a)(3) would remove the requirement for a third-party guarantee to ensure compliance with the obligations of all lessees, operating rights owners, and operators on the lease, and, as agreed to by BOEM, would allow a guarantee limited to a specific amount or limited one or more specific lease obligations.
A summary of all comments received regarding third-party guarantees and BOEM's corresponding responses regarding the provisions to evaluate third-party guarantors can be found in section 6.1 of the
Additionally, to allow more flexibility in the use of third-party guarantees, the final rule will allow a third-party guarantee to be used as supplemental financial assurance for a RUE or ROW grant, as well as a lease.
BOEM acknowledges the commenters' opposition to allowing third-party guarantors to limit their guarantee and BOEM assumes the concern flows from a belief that the third-party guarantee may be insufficient. Contrary to this understanding, however, the lessee must still provide the total amount of the supplemental financial assurance demand through other financial assurance methods, even if a third-party guarantor limits the guarantee.
The proposed rule included amendments to allow BOEM to cancel a third-party guarantee under the same terms and conditions that apply to cancellation of other types of financial assurance, as provided in proposed § 556.906(d)(2). No comments were received on this provision. Therefore, the Department is finalizing, as
Finally, the existing regulation refers to both a “guarantee” and an “indemnity agreement” (which BOEM intended to mean the same thing), and the proposed rule clarified that the regulations contemplate only one agreement: the guarantee agreement. No comments were received on this proposed amendment; therefore, the Department is also finalizing the clarification that both a “guarantee” and an “indemnity agreement” contemplate the same guarantee agreement by removing all references to “indemnity agreement” in the regulatory text. This terminology is changed to clarify that the government is not required to incur the expenses of decommissioning before demanding compensation from the guarantor.
The Department proposed to rename the lease-specific abandonment accounts in 30 CFR 556.904 as “Decommissioning Accounts,” the terminology used by the industry. This name change is intended to remove any perceived limitation that this type of account can apply to only a single lease, and to signify that these accounts may be used to ensure compliance with supplemental financial assurance requirements for a RUE and ROW grant, as well as a lease. To make these accounts more attractive to parties who may desire to use this method of providing supplemental financial assurance, the Department also proposed to remove the requirement in 30 CFR 556.904(d) to pledge Treasury securities to fund the account once the funds equal the maximum amount insurable by the Federal Deposit Insurance Corporation (FDIC)/Federal Savings and Loan Insurance Corporation (FSLIC), for which insurance is currently capped at $250,000.
No comments were received specifically on the proposed amendment to rename the lease-specific abandonment accounts in 30 CFR 556.904 as “Decommissioning Accounts” or the proposed amendment to remove the requirement to pledge Treasury securities to fund the account before the funds equal the maximum amount insurable by the FDIC/FSLIC. Therefore, the Department is finalizing 30 CFR 556.904, as proposed, to rename the lease-specific abandonment accounts as “Decommissioning Accounts.” The Department is also finalizing the removal of the requirement to pledge Treasury securities to fund the account before the funds equal the maximum amount insurable by the FDIC/FSLIC.
The Department proposed amendments to update subparts G (30 CFR 556.704) and H (30 CFR 556.802) of the Department's existing part 556 regulations to clarify that BOEM will not approve the transfer of a lease interest, whether a record title interest or an operating rights interest, until the transferee complies with all applicable regulations and orders, including financial assurance requirements. As discussed in the preamble to the proposed rule (88 FR 42146), many of the facilities currently on the OCS have decommissioning obligations where the cost of performance greatly exceeds the amount of financial assurance currently available to DOI. To address this problem, the Department proposed to clarify that it may withhold approval of any transfer or assignment of any lease interest unless and until the financial assurance requirements have been satisfied.
A summary of all comments received regarding transfers and BOEM's corresponding responses regarding revisions to transfers can be found in section 6.2 of the
The Department proposed and is finalizing revisions to the financial evaluation criteria that will be used for determining supplemental financial assurance requirements for oil, gas, and sulfur leases, RUE grants, and pipeline ROW grants. The proposed evaluation methodology for the revised criteria, the public comments received, and DOI's final amendments are discussed in the subsections below. Summaries of all comments received regarding credit ratings, proxy credit ratings, and valuing proved oil and gas reserves and BOEM's corresponding responses can be found in section 7 of the
The Department proposed to use an “issuer credit rating” to evaluate the financial health of OCS lessees, grant holders, and guarantors, and proposed to include the new term and corresponding definition in 30 CFR 550.105 and 556.105. As discussed in the preamble to the proposed rule (88 FR 42146), an issuer credit rating provides the rating agencies' opinions of the entity's ability to honor senior unsecured debt and debt-like obligations. The Department proposed to accept only issuer credit ratings from a Nationally Recognized Statistical Rating Organization (NRSRO), such as Standard and Poor's (S&P) Rating Services and Moody's Investors Service Incorporated (or any of their subsidiaries). General comments on issuer credit ratings are as follows:
As discussed in the proposed RIA, BOEM reviewed historical default rates
The Department proposed to use an investment grade credit rating threshold for determining if supplemental financial assurance may be required by a lessee. The Department proposed the term and associated definition of “Investment grade credit rating” in 30 CFR 550.105 and 556.105. BOEM explained in the preamble to the proposed rule (88 FR 42159) that the use of an investment grade credit rating standard for waiving supplemental financial assurance was an appropriate threshold because it minimizes credit default risk to the taxpayer without overburdening offshore companies with the cost of providing financial assurance in low credit risk scenarios. BOEM received a wide range of comments on the proposal to use an investment grade credit rating threshold for determining supplemental financial assurance requirements, as summarized below.
As discussed in the proposed RIA, of the 276 companies analyzed, none were rated at or above BBB- at the time of bankruptcy or within 10 years prior to bankruptcy. As such, BOEM has selected BBB- as the credit rating threshold for providing additional financial assurance. The Department is finalizing, as proposed in 30 CFR 556.901(d), an issuer credit rating threshold of BBB- (S&P and Fitch) or Baa3 (Moody's), an equivalent credit rating provided by another SEC-recognized NRSRO, or an equivalent proxy credit rating, to ensure that lessees and grant holders have the capacity to meet their financial and non-financial obligations. In order to both ensure that companies do not “cause [unmitigated] damage to the environment or to property, or endanger life or health,” 43 U.S.C. 1332(6), and to promote “expeditious and orderly development,” 43 U.S.C. 1332(3), BOEM seeks to balance the financial risk to the government and the taxpayer while minimizing unreasonable regulatory burdens. If different NRSROs provide different ratings for the same lessee, BOEM will use the higher of the lessee's ratings. Additionally, as BOEM monitors company rating changes throughout the year, use of this threshold will ensure that BOEM has adequate time to demand needed financial assurance before a company drops further below the investment grade rating.
The Department proposed in 30 CFR 556.901(d) to allow entities that do not have a NRSRO-issued credit rating to request that the Regional Director determine a proxy credit rating based on audited financial information for the most recent fiscal year, including an income statement, a balance sheet, a statement of cash flows, and the auditor's certificate. As proposed, DOI intended the “most recent fiscal year” to mean a continuous 12-month period within the 24-months prior to the Regional Director's determination that supplemental financial assurance is required. General comments on proxy credit ratings are as follows:
The Department proposed to use S&P Global Inc.'s Credit Analytics credit model to calculate proxy credit ratings, but retained the right to use a different model if it determines that a different model more accurately reflects those factors relevant to the financial evaluation of companies operating on the OCS. BOEM specifically solicited comment on the use of S&P Global Inc.'s Credit Analytics credit model for developing proxy credit ratings. General comments on the use of the S&P model are as follows:
The Department proposed in 30 CFR 556.901(d) to consider the proved reserves on a particular lease when determining whether supplemental financial assurance is required. As discussed in the preamble to the proposed rule (88 FR 42147), BOEM would require the lessee to submit a reserve report for the proved oil and gas reserves (as defined by the SEC regulations at 17 CFR 210.4-10(a)(22)) located on a given lease. DOI proposed that companies should report the value of their reserves using the methodology pursuant to the SEC's regulations on reserve reporting, and the presentation should be by the lease, or leases, for which the exemption is being requested. These regulations are commonly used and understood by offshore oil and gas companies and such reserve reports are already produced by publicly traded companies. This also allows BOEM to rely on the established SEC regulations on the definitions, qualifications, and requirements for proved reserves, rather than attempting to recreate these regulations. BOEM would use the value of proved oil and gas reserves per-lease when determining whether the discounted value of the reserves on any given lease exceeds three times the cost of the proposed P70 decommissioning estimate associated with the production of those reserves.
Additionally, the Department proposed the use of a ratio of the value of proved reserves to decommissioning liability associated with those reserves that meets or exceeds a value of 3-to-1. As discussed in the preamble to the proposed rule (88 FR 42148), BOEM believes that a property with a sufficient “reserves-to-decommissioning cost” ratio would likely be purchased by another company if a current lessee defaults on its obligations, thereby reducing the risk that decommissioning costs for that property would be borne by the government, and consequently reducing the need for supplemental financial assurance. In BOEM's judgment, a ratio of 3-to-1 provides sufficient risk reduction to justify a Regional Director determination that the lessee is not required to provide supplemental financial assurance for that lease. Bankruptcy data show that the most valuable properties of the bankrupt company (with at least a 3-to-1 ratio of the value of reserves to decommissioning costs) are acquired by another entity. That result accords with BOEM's experience and with common sense because the value of these properties is economically viable even after including the decommissioning cost. Additionally, no commenters provided a different value than 3-to-1 in response to BOEM's solicitation for comment on other appropriate values.
In the preamble to the proposed rule, BOEM acknowledged that the proposed regulations could have a significant financial impact on affected companies (88 FR 42148). For that reason, BOEM proposed to phase in the new supplemental financial assurance requirements over a 3-year period for existing leaseholders in 30 CFR 556.901(h). As proposed, BOEM would require that any company receiving a supplemental financial assurance demand (within 3 years of the rule becoming effective) post one-third of the total amount by the deadline listed on the demand letter. A second one-third would be required within 24 months of the receipt of the demand letter. The final one-third payment would be due within 36 months of the receipt of the demand letter. BOEM specifically
A summary of all comments received regarding the phased compliance approach and BOEM's corresponding responses can be found in section 8 of the
As discussed in the preamble to the proposed rule (88 FR 42148), the Department proposed a new requirement in 30 CFR 556.902(h) whereby any company seeking to stay a supplemental financial assurance demand pending appeal must, as a condition of obtaining a stay of the order, post an appeal bond in the amount of supplemental financial assurance required. If the appeal is successful, the amount of the appeal bond in excess of the amount of any supplemental financial assurance determined to be required would be returned to the appropriate party. If the appeal is unsuccessful, the appeal bond could be replaced with, or converted into, bonds or other forms of financial assurance to cover the supplemental financial assurance demand.
Comments received regarding appeals and BOEM's corresponding responses can be found in section 9 of the
As noted above, if an appellant wins its appeal, and no financial assurance is required, the appeal bond will be cancelled, or the amount of the appeal bond in excess of the amount of financial security determined to be required will be returned to the appropriate party. Thus, an appellant is not “forced” to post an appeal bond that may be held for years, as claimed by the commenter. This is different from not appealing and posting a bond for lease compliance that will be held until decommissioning is performed. Nor did the proposed rule prescribe that an appeal bond must “convert” to a different type of bond to cover a required financial assurance obligation.
BOEM also disagrees that the appeal bond provision will result in “automatic denials of stays,” leading to more judicial litigation. The statutory and regulatory provisions cited by the commenter stand for the proposition that the unavailability of a stay excuses parties from the requirement to exhaust administrative remedies before seeking judicial review. But this outcome will occur only if the IBLA denies a stay request, and such a denial would be made independent of the appeal bond requirement. The IBLA must grant or deny a stay based on the factors set forth at 43 CFR 4.21(b)(1), and not on whether an appeal bond has been, or must be, posted. See 43 CFR 4.21(b)(4). Therefore, the requirement that an appeal bond be posted should not result in the IBLA granting fewer stay requests. Nor does the appeal bond provision contradict § 590.7. The latter provision, at paragraph (c), states that the IBLA may grant a stay of a BOEM decision, but that the decision remains in effect until the stay is granted. That is true regardless of the new appeal bond provision. Under the new provision, the IBLA may still grant a stay of a decision, and until a stay is granted, the decision remains in effect, but in order for the stay to take effect, the appellant must post the required appeal bond.
In response to the request for data, of the 1,449 appeals the IBLA received during the last 5 fiscal years, only 5 were from BOEM decisions concerning financial assurance. The appellant(s) filed a petition for a stay in 4 of those 5 appeals, and the IBLA granted one of them. Additional data regarding the current number of appeals is available at the following website:
BOEM's retention of the appeal bond provision means that, in the event of a stay of a financial assurance order, there will be an appeal bond, ensuring that, even if the appellant becomes insolvent during the appeal, there will be sufficient funds to perform decommissioning when it is ordered by BSEE. This fact supports, rather than contradicts, BSEE's decision not to retain its own appeal bond provision in the BSEE rule, as duplicative and unnecessary.
Additionally, after the publication of the NPRM, which included BOEM's proposed provision to require the appeal bond, on December 13, 2023, BSEE published a proposed rule titled
Further, an appeal bond requirement already applies to appeals of civil penalties assessed by BOEM and orders of the Office of Natural Resources Revenue (ONRR). Such a requirement is equally appropriate when the effect of a change in circumstances of the appellant, such as bankruptcy or insolvency, could leave DOI without the means of performing decommissioning. Companies can, and have, filed for bankruptcy while waiting for a decision from the IBLA on an appeal, leaving the government with no financial assurance to address decommissioning obligations. As such, the Department is finalizing, as proposed, the inclusion of the requirement whereby any company seeking to stay a supplemental financial assurance demand pending appeal must, as a condition of obtaining a stay of the order, post an appeal bond in the amount of supplemental financial assurance required.
The Department proposed to revise definitions, remove terms and associated definitions, and add new definitions in 30 CFR 550.105 (
The Department proposed to add new definitions for the terms “Assign” and “Transfer” to clarify that these terms are used interchangeably throughout 30 CFR parts 550 and 556. This change would also serve to clarify that the related terms “transferee” and “transferor” are interchangeable with “assignee” and “assignor” respectively. The definition of the new term “Assign” was proposed to mean conveying an ownership interest in an oil, gas, or sulfur lease, ROW grant or RUE grant. For purposes of this part, “assign” is synonymous with “transfer” and the two terms are used interchangeably. The definition of the new term “Transfer” was proposed to mean “conveying an ownership interest in an oil, gas, or sulfur lease, ROW grant or RUE grant. For the purposes of this part, “transfer” is synonymous with “assign” and the two terms are used interchangeably.
The Department is finalizing, as proposed, the new terms “Assign” and “Transfer” and their corresponding definitions.
The Department proposed to remove the terms “Easement” and “Right-of-use” from 30 CFR part 550 because neither are used separately in the regulations. In lieu of these two terms, and to define the term used in part 550, DOI proposed the addition of the new term “Right-of-Use and Easement” and its associated definition as “a right to use a portion of the seabed, at an OCS site other than on a lease you own, to construct, secure to the seafloor, use, modify, or maintain platforms, seafloor production equipment, artificial islands, facilities, installations, or other devices to support the exploration, development, or production of oil, gas, or sulfur resources from an OCS lease or a lease on State submerged lands.” Additionally, the Department proposed to amend the definition of “Right-of-Use and Easement” in 30 CFR 556.105 to match the proposed definition in 30 CFR 550.105.
No public comments were received on the proposal to delete “Easement” and “Right-of-use” and replace with the new term “Right-of-use and Easement” in 30 CFR 550.105 or on the amendments to the existing definition in 30 CFR 556.105. As such, the Department is finalizing, as proposed, BOEM's amendments to remove the terms “Easement” and “Right-of-use” from 30 CFR part 550 because neither are used separately in the regulations. In lieu of these two terms, and to define the term used in part 550, the Department is finalizing the addition of the new term “Right-of-Use and Easement” and its associated definition. In the final rule, BOEM has removed “adjacent to or accessible from the OCS” from the proposed RUE definition, as it is not helpful. This is a technical correction and does not change any meaning or intent of the definition. Additionally, the Department is finalizing the edits to the same definition, in 30 CFR 556.105.
The Department proposed to add a new term and definition for “Financial assurance” in 30 CFR 550.105 and 556.105(b) to list the various methods that may be used to ensure compliance with OCS obligations in 30 CFR parts 550 and 556. DOI proposed to define the term as “a surety bond, a pledge of Treasury securities, a decommissioning account, a third-party guarantee, or another form of security acceptable to the BOEM Regional Director, that is used to ensure compliance with obligations under the regulations in this part and under the terms of a lease, a RUE grant, or a pipeline ROW grant.” General comments received are as follows:
The Department is finalizing, as proposed, the new term and definition for “Financial assurance” in 30 CFR 550.105 and 556.105(b) to list the various methods that may be used to ensure compliance with the relevant OCS obligations in 30 CFR parts 550 and 556.
The Department proposed to add the new term and associated definition for “Investment grade credit rating” in 30 CFR 550.105 and 556.105(b). The associated definition was proposed as “an issuer credit rating of BBB− or higher, or its equivalent, assigned to an issuer of corporate debt by a nationally recognized statistical rating organization (NRSRO) as that term is defined by the United States Securities and Exchange Commission (SEC).” This definition was proposed as the threshold above which BOEM would typically not require supplemental financial assurance. General comments received are as follows:
The Department has revised the definition of “Investment grade credit rating” in 30 CFR 556.105(b) with this final rule to clarify which rating agency corresponded with the proposed BBB− rating. The final definition is “an issuer credit rating of BBB− or higher (S&P Global Ratings and Fitch Ratings, Inc.), Baa3 or higher (Moody's Investors Service Inc.), or its equivalent, assigned to an issuer of corporate debt by a nationally recognized statistical rating organization as that term is defined in section 3(a)(62) of the Securities Exchange Act of 1934.”
The Department proposed to add the new term and associated definition for “Issuer credit rating” in 30 CFR 550.105 and 556.105(b). The associated definition was proposed as “a credit rating assigned to an issuer of corporate debt by Standard and Poor's (S&P) Rating Services (or any of its subsidiaries), by Moody's Investors Service Incorporated (or any of its subsidiaries), or by another NRSRO as that term is defined by the United States SEC.” General comments received are as follows:
The Department proposed to delete the term and associated definition of “Security or securities” in 30 CFR 556.105(b) since the term “security” was proposed to be replaced with “financial assurance” throughout the subpart. This term,
The Department proposed to revise the definition for “You” in 30 CFR parts 550 and 556 as, depending on the context of the part: “a bidder, a lessee (record title owner), a sublessee (operating rights owner), a Federal or State RUE grant holder, a pipeline ROW grant holder, an assignor or transferor, a designated operator or agent of the lessee or grant holder, or an applicant seeking to become one of the individuals listed in this definition.” This change to the definition of “You” would, in concert with changes proposed in § 550.166, make explicit that any financial assurance provisions applicable to either a State or Federal RUE would apply to the other. General comments received are as follows:
The Department is finalizing, as proposed, the revisions to the definition of “You.” The definition of the term has traditionally been all-encompassing in both parts 550 and 556 and BOEM believes the context provided by the individual subsections is sufficient for determining which entity covered by the term is the appropriate entity to which a particular subsection applies.
The Department proposed to replace the word “sulphur” with the more contemporary spelling of “sulfur” throughout the regulatory text where it has not been previously changed. BOEM noted that this edit was a technical correction and did not change any meaning or intent of the regulatory provisions. The Department proposed to update the word “sulphur” in the heading of part 550 and in §§ 550.101, 550.102, 550.105, and 550.199.
No comments were received on changing the spelling of “sulphur” to “sulfur.” Therefore, the Department is finalizing, as proposed, its plans to replace the word “sulphur” with the more contemporary spelling of “sulfur” in §§ 550.101, 550.102, and 550.105 in this final action.
This final rule will affect current and future lessees, sublessees, RUE grant holders, and pipeline ROW grant holders. BOEM's analysis shows that this includes roughly 391 companies with record title ownership or operating rights in leases, and with interests in RUE grants and pipeline ROW grants. These lessees and grant holders are responsible for complying with the regulations and therefore would bear the compliance costs and realize the cost savings associated with the provisions in this final rule.
The amendments in this final rule are expected to increase the total amount of financial assurance required from OCS lessees and grant holders. Those lessees that do not meet the updated criteria to avoid providing supplemental financial assurance will have an increased compliance cost in the form of bond premiums. BOEM has drafted an RIA detailing the estimated impacts of the
The rule affects holders of oil, gas, and sulfur leases, ROW grants, and RUE grants on the OCS. The analysis shows that this includes roughly 391 companies with ownership interests in OCS leases and grants. Entities that operate under this rule are classified primarily under NAICS codes 211120 (Crude Petroleum Extraction), 211130 (Natural Gas Extraction), and 486110 (Pipeline Transportation of Crude Oil and Natural Gas). For NAICS classifications 211120 and 211130, the SBA defines a small business as one with fewer than 1,250 employees; for NAICS code 486110, it is a business with fewer than 1,500 employees. Based on this criterion, approximately 271 (69 percent) of the businesses operating on the OCS subject to this rule are considered small; the remaining businesses are considered large entities. All the operating businesses meeting the SBA classification are potentially impacted; therefore, BOEM expects that the rule will affect a substantial number of small entities.
BOEM has estimated the annualized increase in compliance costs to lessees and allocated those to small and large entities based on their decommissioning liabilities. In the table below, BOEM's analysis estimates small companies could incur $421 million (7 percent discounting) in annualized compliance costs from changes in the final rule. The Bureau recognizes that there will be incremental cost burdens to most affected small entities and has included a 3-year phased compliance approach to provide flexibility for entities required to provide financial assurance under the new requirements. The changes are designed to balance the risk of non-performance with the compliance burdens that are associated with the requirement to provide supplemental financial assurance. Additional information about these conclusions can be found in the regulatory flexibility analysis for this rule.
OCSLA regulations and lease provisions require lessees to decommission facilities, including plugging and abandoning OCS wells and removing facilities when their useful life has concluded. If the current lessee fails to perform decommissioning of its OCS facilities, the burden to decommission OCS facilities may fall to other obligated parties, such as co-lessees or predecessor lessees, and failing that, the Federal Government and U.S. taxpayers. Some of the corporate bankruptcies involving offshore oil and gas lessees since 2009 have involved decommissioning liabilities not covered by bonds or other forms of financial assurance. As such, these bankruptcies demonstrate that BOEM's regulations have been inadequate to protect the public from potential responsibility for OCS decommissioning, especially during periods of low hydrocarbon prices. The final rule is intended to correct these shortcomings with an approach that promotes internalization of costs of decommissioning by lessees and grant holders by adhering to the general principle that each current owner should bear the costs for its own obligations. This final rule is expected to significantly increase the amount of financial assurance coverage that protects the Federal Government and taxpayer by requiring that every lessee, ROW grant holder, and RUE grant holder assume full responsibility for providing assurance for performance of its own obligations unless there is a financially strong co-lessee (
Bonding of OCS liabilities by a surety company greatly reduces the risk that those liabilities will revert to a predecessor lessee or grant holder because DOI could, but is not required to, turn to the surety for performance before turning to a predecessor. Further, because this final rule is designed to secure the taxpayer against the riskiest subset of liability—
Additionally, this final rule provides lessees and grant holders with clarity and regulatory certainty regarding the
On March 31, 2023, BOEM sent letters to all federally recognized Tribal Nations and Alaska Native Claims Settlement Act (ANCSA) Corporations to ensure they are aware of the proposed rulemaking, to answer any immediate questions they may have had, and to invite formal consultation if desired. Only one Tribe requested consultation, which was held on June 28, 2023; meeting notes for this consultation are available in the docket (Docket No. BOEM-2023-0027).
BOEM proposed in the preamble to the proposed rule at 88 FR 42156 that the provisions of the rule be severable. No public comments were received on severability. Should any court hold unlawful and/or set aside portions of this rule, the remaining portions are severable and therefore should not be remanded to the Department. The final rule contains three main components: (1) streamlining criteria warranting a demand for supplemental financial assurance; (2) establishing the amount of any supplemental financial assurance; and (3) making several, less significant changes to, among other things, transferring interests in RUE grants and requiring appeals bonds for a stay of an IBLA appeal. See section III of this preamble.
It is impracticable, if not impossible, for BOEM to anticipate and address every conceivable adverse court remedy order. For purposes of this rule, it suffices to substantiate BOEM's intent that the rule's three components operate largely independently of each other: the first component considers whether a lessee is at risk of default based on the lessee's credit rating or the proved reserves on the lease; the second component considers the appropriate level of financial assurance required in light of that risk; and the third component addresses several longstanding and technical matters that do not bear directly on the first two components. Indeed, these three components are sufficiently distinct that their utility does not depend on the specifics of this final rule. For example, if a court were to vacate BOEM's selection of the level of supplemental financial assurance required (P-value), that decision would remain severable from the threshold determination regarding
BOEM is amending the following regulations as follows:
The terms “bond,” “bonding,” “surety bond,” “security,” and “securities” are replaced throughout this part with the new term “financial assurance”, as proposed.
The term “sulphur” is replaced throughout this part with “sulfur”, as proposed. This edit is a technical correction and does not change any meaning or intent of the regulatory provisions.
The Department is finalizing the revision of “sulphur” to “sulfur” in the introductory text and is clarifying that the BOEM Director is the one granted authority by the Secretary to regulate oil, gas, and sulfur exploration, development, and production operations on the OCS.
The Department is finalizing the revision of “sulphur” to “sulfur” in the paragraphs (a) and (b).
The Department is removing the term “supplement” from this section as a technical correction. The existing regulatory text needs improvement because NTLs do not supplement regulatory requirements, but instead clarify, provide voluntary recommendations, or provide additional information concerning how to comply with requirements in the regulations (
The Department is finalizing as proposed, and as discussed in section III.G of this preamble, new definitions for the terms “Assign” and “Transfer” to clarify that these terms are used interchangeably throughout the part. This change also serves to clarify that the related terms “assignee” and “assignor” are interchangeable with “transferee” and “transferor,” respectively.
The Department is finalizing, as proposed, revisions to the definition of “Criteria air pollutant” and “Nonattainment area” to explain the acronyms U.S. EPA and NAAQS. This is a technical correction and does not change any meaning or intent of the definitions.
The Department is finalizing as proposed, and as discussed in section III.G of this preamble, removal of the terms “Easement” and “Right-of-use” because neither are used separately in the regulations. In lieu of these two terms, and to define the term used in part 550, The Department is finalizing the addition of the new term “Right-of-Use and Easement” and its associated definition. Since proposal, BOEM has removed “adjacent to or accessible from the OCS” from the RUE definition, as it is not helpful. This is a technical correction and does not change any meaning or intent of the definition. This definition is consistent with the final amendments to the definition of RUE in 30 CFR 556.105.
The Department is finalizing as proposed, and as discussed in section III.G of this preamble, the addition of the new term and definition for “Financial assurance” to list the various methods that may be used to ensure compliance with OCS obligations. Additionally, the Department is finalizing, as proposed, and discussed in section III.G of this preamble, revisions to the definition of “You.”
The paragraph (a) introductory text is expanded, as in the proposed rule, to include additional functions and devices associated with a RUE by adding “secure to the seafloor, use, modify” after “construct;” by substituting “or” for “and” before the word “maintain;” and by adding references to “seafloor production equipment” and “facilities.” These edits create consistency between this section and the definition of RUE in § 550.105. A commenter suggested edits to
The Department is finalizing, as proposed, revisions to paragraph (b) to provide that a RUE grant holder must exercise the grant according to the terms of the grant and the applicable regulations of part 550.
The Department is finalizing, as proposed, revisions to paragraph (c) to update the cross-reference to BOEM's lessee qualification requirements, §§ 556.400 through 556.402, and to replace the language in this paragraph referencing “bonding requirements” with a cross reference to § 550.166, which BOEM has amended to add specific criteria for financial assurance demands, as discussed in section III.A of this preamble. The Department is also revising paragraph (d) to replace “right-of-use and easement” with “RUE.”
The Department is revising paragraphs (e) and (f)(2) to update the list therein to be consistent with the finalized revisions in paragraph (a). BOEM identified the need for these revisions after publication of the proposed rule and is making them in the final rule for consistency with the new definition of RUE.
As proposed, the Department is finalizing amendments to the section heading by removing the reference to “a State lease” and replacing “surety bond” with “financial assurance.” This reflects the change in the text of this section that provides that the financial assurance requirements of this section would apply to both a RUE granted to serve a State lease and one serving an OCS lease, as discussed in section III.A of this preamble. The term “surety bond” is replaced with “financial assurance” throughout the section.
The Department is finalizing revisions to paragraph (a) to require $500,000 in financial assurance that guarantees compliance with the terms and conditions of any OCS RUEs an entity holds, as discussed in section III.A of this preamble. Previously, paragraph (a) required $500,000 in financial assurance only for RUEs associated with State leases. Additionally, the Department is finalizing the addition of paragraph (a)(1), as proposed, to allow area-wide lease financial assurance to satisfy the requirements of paragraph (a) provided that assurance is in excess of the $500,000 base RUE financial assurance requirement and also guarantees compliance with all the terms and conditions of the RUE(s) it covers. The Department is also finalizing the addition of paragraph (a)(2) as proposed to allow the Regional Director to lower the required financial assurance amount for research and other similar types of RUEs, which reflects BOEM's experience that the total liability exposure for such RUEs can be well below $500,000. Lastly, the Department is finalizing the addition of paragraph (a)(3) as proposed to provide that the financial assurance requirements of section 556.900(d) through (g) and § 556.902 apply to the financial assurance required in paragraph (a).
The Department is finalizing, as proposed, the revision of paragraph (b) in this section to provide that, if BOEM grants a RUE that serves either an OCS lease or a State lease, the Regional Director may require the grant holder to provide supplemental financial assurance to ensure compliance with the obligations under the RUE grant. BOEM will use the issuer credit rating or proxy credit rating criterion found in § 556.901(d)(1) and (2) to evaluate a RUE grant holder, as discussed in section III.A of this preamble;
The Department is finalizing the revision to paragraph (b)(1) as proposed to update the regulatory citation in existing § 550.166(b)(1) to provide that the supplemental financial assurance must meet the requirements for lease surety bonds or other financial assurance provided in §§ 556.900 (d) through (g) and 556.902. This rule also finalizes the revision to § 550.166(b)(2) to include “applicable BOEM and BSEE orders” in the list of what RUE supplemental financial assurance must cover. The Department is not finalizing the proposed language that clarified that RUE holders must also comply with the decommissioning regulations at part 250, subpart Q of this title as it is no longer needed. BSEE adopted changes to their regulations in subpart Q to expressly state that RUE holders must comply with the BSEE decommissioning regulations. 88 FR 23569 (Apr. 18, 2023). As such, BOEM is not finalizing this reference to the BSEE regulations, as it is now redundant. The Department is finalizing the addition of new paragraph (c), as proposed, to provide that if a RUE grant holder fails to replace any deficient financial assurance upon demand, or fails to provide supplemental financial assurance upon demand, BOEM may assess penalties, request BSEE to suspend operations on the RUE, and/or initiate action for cancellation of the RUE grant.
The Department is finalizing the addition of a new § 550.167 to establish the ability to assign a RUE interest. Paragraph (a) establishes that those who want to obtain a RUE or are requesting assignment of an interest in a RUE must provide the information contained § 550.161 and must obtain BOEM's approval. In response to comment, the Department is finalizing the addition of a new paragraph (b) that parallels the provisions for ROW assignments in BSEE's regulations at 30 CFR 250.1018. New paragraphs (c)(1) through (4) establish, as proposed, the circumstances in which BOEM may disapprove an assignment. These circumstances are intended to prevent the assignment of a RUE when, for example, the assignment would result in inadequate financial assurance.
The Department is finalizing the revision of “sulphur” to “sulfur” in paragraph (b) and clarification that “parts 551, 552” refer to 30 CFR parts 551 and 552.
The Department is finalizing the revision of this section in its entirety. The section heading is revised to read, “Financial assurance requirements for pipeline right-of-way (ROW) grant holders,” to clarify that a pipeline ROW grant holder may meet the requirements of this section by providing bonds or other types of financial assurance.
The Department is finalizing, as proposed, revisions to paragraph (a) to
The Department is finalizing, as proposed, the removal of existing paragraph (b), which defines the three recognized OCS areas, because it is made redundant by the reference to § 556.900(b) in revised paragraph (a). The Department is finalizing, as proposed, the replacement of the removed paragraph (b) with a new paragraph (b) to provide that the requirement under paragraph (a) to furnish and maintain area-wide financial assurance may be satisfied if the operator or a co-grant holder provides area-wide pipeline right-of-way financial assurance in the required amount that guarantees compliance with the regulations and the terms and conditions of the grant.
The Department is finalizing the replacement of paragraph (c), as proposed, with a provision stating that the requirements for lease financial assurance in §§ 556.900(d) through (g) and 556.902 apply to the area-wide financial assurance required in paragraph (a) of this section. The Department is finalizing the removal of existing paragraph (d), which is now made redundant by new paragraph (f).
The Department is finalizing, as proposed, the addition of a new paragraph (d) to provide that the Regional Director may determine that supplemental financial assurance is necessary to ensure compliance with the obligations under a pipeline ROW grant based on an evaluation of the grant holder's ability to carry out present and future obligations on the pipeline ROW. As discussed in section III.A of this preamble, the Department is finalizing the use of the same issuer credit rating or proxy credit rating criterion to evaluate a pipeline ROW grant holder, or co-grant holder, as the Department is finalizing to apply to lessees in § 556.901(d)(1). BOEM, as discussed in section III.A of this preamble, has found that reliance on credit ratings better evaluates financial stability than net worth, and is thus applying the same financial criterion in evaluating the financial stability of grant holders.
The Department is finalizing, as proposed in new paragraph (e)(1), a provision that the supplemental financial assurance must meet the general requirements for lease surety bonds or other financial assurance, as provided in §§ 556.900(d) through (g) and 556.902. The Department is not finalizing the proposed language in new paragraph (e)(2) that stated that any supplemental financial assurance for a pipeline ROW is required to cover costs and liabilities for regulatory compliance and compliance with applicable BOEM and BSEE orders, decommissioning of all pipelines or other facilities, and clearance from the seafloor of all obstructions created by the pipeline ROW operations, in accordance with the regulations set forth in 30 CFR part 250, subpart Q, because it is no longer needed and redundant. BSEE adopted changes to their regulations in subpart Q to expressly state that all ROW holders must comply with the BSEE decommissioning regulations. 88 FR 23569 (Apr. 18, 2023). As such, BOEM is not finalizing this reference to the BSEE regulations, as it is now redundant. New paragraph (e)(2) now states that any supplemental financial assurance for a pipeline ROW is required to cover the costs and liabilities for compliance with obligations of your ROW grants and with applicable BOEM and BSEE orders.
The Department is also finalizing the addition of new paragraph (f) to provide that if a pipeline ROW grant holder fails to replace any deficient financial assurance upon demand or fails to provide supplemental financial assurance upon demand, the Regional Director may assess penalties, request BSEE to suspend operations on the pipeline ROW, and/or initiate action for forfeiture of the pipeline ROW grant in accordance with 30 CFR 250.1013.
The Department is finalizing, as proposed, a technical correction to the authority citation for part 556 by removing the citation to 43 U.S.C. 1801-1802, because neither of these two sections contain authority allowing BOEM to issue or amend regulations.
The final rule also removes, as proposed, the citation to 43 U.S.C. 1331 note which is where the Gulf of Mexico Energy Security Act of 2006 (GOMESA) is set forth. While this statute required BOEM to issue regulations concerning the availability of bonus or royalty credits for exchanging eligible leases, the deadline for applying for such a bonus or royalty credit was October 14, 2010; therefore, lessees may no longer apply for such credits. BOEM no longer needs the authority to issue regulations under that statute and has removed all regulations on this topic from part 556, except section 556.1000, which provides that lessees may no longer apply for such credits.
Additionally, the terms “bond,” “bonding,” and “surety bond” are replaced throughout this part with the new term “financial assurance.” The Department is finalizing, as proposed, the revision to the part 556 heading to update the spelling of sulfur and to replace “bonding” with “financial assurance.”
The Department is finalizing the removal of an incorrect phone number and email address in paragraph (a)(4). This is a technical correction, consistent with the content of other subparts, that was discovered after publication of the proposed rule and does not change the intent of the paragraph.
The Department is finalizing, as proposed, and as discussed in section III.G of this preamble, the new terms “Assign” and “Transfer” and associated definitions to clarify that these terms are used interchangeably throughout the part. This change also serves to clarify that the related terms “assignee” and “assignor” are interchangeable with “transferee” and “transferor” respectively.
The Department is finalizing the removal of “GOMESA” from the acronym list in paragraph (a) as discussed above. The final rule removes the citation to 43 U.S.C. 1331 note which is the only reference to GOMESA in part 556.
The Department is finalizing, as proposed, and as discussed in section III.G of this preamble, amendments to the definition of “Right-of-Use and Easement (RUE)” to include the words
The Department is finalizing revisions to the definition of “Eastern Planning Area” as proposed to remove the acronym “EPA” which can be confused with the United States Environmental Protection Agency (U.S. EPA). The Department is not finalizing the proposed removal of the rest of the first sentence in the existing definition to retain consistency with the definitions for “Central Planning Area” and “Western Planning Area,” which were not changed in the proposed rulemaking.
The Department is finalizing, as proposed, and as discussed in section III.G of this preamble, the addition of a new term and definition for “Financial assurance” to clarify that various methods can be used to ensure compliance with OCS obligations. This definition is the same as the definition of “Financial assurance” finalized in § 550.105.
The Department is finalizing, as proposed, and as discussed in sections III.D and III.G of this preamble, the addition of a new term and definition for “Investment grade credit rating” to 30 CFR part 556.
The Department is finalizing, as discussed in section III.G of this preamble, the addition of the new term “Issuer credit rating” and its corresponding definition, as revised based on public comment as: “a credit rating assigned to an issuer of corporate debt by S&P Global Ratings, by Moody's Investors Service Inc., by Fitch Ratings, Inc., or by another nationally recognized statistical rating organization, as that term is defined in section 3(a)(62) of the Securities Exchange Act of 1934.”
The Department is adding the definition of “Predecessor,” as proposed in the 2020 proposed rule and as discussed in section III.B of this preamble, to describe the prior owners who share liability with the current owners.
The Department is finalizing, as proposed, the removal of the term and definition of “Security or securities,” as these terms have been replaced with “financial assurance” throughout parts 556 and 550 for regulatory consistency. Additionally, the Department is finalizing, as proposed, and discussed in section III.G of this preamble, the revisions to the definition of “You.” This definition is the same as the definition of “You” finalized in § 550.105.
The Department is removing “bonding” from paragraph (a) as a non-substantive change identified after proposal to be consistent with its replacement by the term “financial assurance” throughout the subpart.
The Department is finalizing, as proposed, revisions to paragraph (a)(1) to clearly state that BOEM may disapprove an assignment or sublease when the transferor, transferee, or sublessee is not in compliance with all applicable regulations and orders, including financial assurance requirements. Similarly, this rule replaces the word “would” in the section heading with “may” to better reflect this discretion. Additionally, BOEM is non-substantively revising paragraph (a)(2) to remove the “etc.” in the parenthetical as it is not necessary since the parenthetical is a list of examples.
The final rule revises paragraph (a) to clearly state that BOEM may disapprove a transfer of operating rights in a lease if the transferee is not in compliance with all applicable regulations and orders, including financial assurance requirements. This final rule also replaces the word “would” in the section heading with “may” to better reflect this discretion. Additionally, BOEM is non-substantively revising paragraph (b) to remove the “etc.” in the parenthetical as it is not necessary since the parenthetical is a list of examples.
The Department is finalizing, as proposed, revisions to the section heading to read, “Financial assurance requirements for an oil and gas or sulfur lease” to ensure that the term “bonding” has been consistently replaced with “financial assurance” and to clarify that a number of forms of financial assurance can be provided, not just surety bonds. The Department is also finalizing the heading of subpart I to remove “Bonding or Other” consistent with the replacement of “bonding” with “financial assurance.”
The Department is finalizing the addition of what was proposed as paragraph (a)(4) to make clear that any supplemental financial assurance required by the Regional Director must be provided before a new lease will be issued or an assignment of a lease approved. However, to avoid confusion in how to apply existing paragraphs (a)(1) through (3), BOEM has moved this language to the introduction of paragraph (a) to note that it is required in addition to any one of paragraphs (a)(1) through (3). BOEM's modified language in paragraph (a) also addresses a concern by a commenter that asserted “the proposed provision makes no sense at the lease issuance stage because supplemental financial assurance can only be required after approved lease exploration or production activities commence.”
The Department is finalizing, as proposed, revisions to the introductory text in paragraph (g) to replace the word “security” with “financial assurance,” and to add the word “surety” before “bond” in two places to clarify that in those cases the regulation is referring to a “surety bond.”
The Department is finalizing, as proposed, revisions to the introductory text in paragraph (h) to replace the words “additional bond coverage” with “supplemental financial assurance” to clarify that surety bonds are not the only means of meeting the requirement. The final rule also revises paragraph (h)(2) in recognition that BSEE, rather than BOEM, is the agency with authority to suspend production or other operations on a lease.
Finally, the Department is finalizing, as proposed, the addition of paragraph (i) to ensure consistency with the RUE financial assurance requirements by providing that area-wide lease surety bonds pledged to satisfy the financial assurance requirements for RUEs under § 550.166 may be called for performance of obligations arising from a RUE on which the holder of a RUE defaults.
The Department is finalizing, as proposed, revisions to the section heading to read, “Base and Supplemental Financial Assurance,” because this section covers both base financial assurance and supplemental financial assurance requirements.
The Department is finalizing, as proposed, revisions to the introductory text of paragraph (a) to replace the word “bonds” with “financial assurance” for consistency with the terminology amendments in this subpart. The Department is also revising paragraph (a)(1)(i) introductory text to replace the word “bond” with “lease exploration financial assurance” for consistency with the terminology used in existing paragraph (a)(1)(ii) (lease exploration bond).
The Department is finalizing, as proposed, the elimination of the parenthetical “(the lessee)” from the paragraph (b) introductory text as it is made redundant by the definition of “You.” The Department is also finalizing, as proposed, revisions to the paragraph (b)(1)(i) introductory text to replace the word “bond” with “lease development financial assurance” for consistency with the terminology used in existing paragraph (b)(1)(ii), which is not being changed.
The Department is finalizing, as proposed, revisions to paragraph (c) to remove the words “authorized officer” and replace them with “Regional Director,” and to remove the words “lease bond coverage” and “a lease surety bond” and replace them in each instance with “financial assurance” to clarify that the Regional Director can review whether BOEM would be adequately secured by a surety bond, or another type of financial assurance, for an amount less than the amount prescribed in paragraph (a)(1) or (b)(1), but not less than the amount of the cost for decommissioning.
The Department in the final rule is, as proposed, combining the provisions of the existing paragraph (d) introductory text and the existing paragraph (d)(1) to provide that the Regional Director may determine that supplemental financial assurance is required to ensure compliance with the obligations, including decommissioning obligations, under a lease and the applicable regulations if the lessee does not meet at least one of the criteria provided in new paragraphs (d)(1) through (4).
The Department is finalizing, as proposed, the addition of a new paragraph (d)(1) to set forth the criterion BOEM would use to evaluate the ability of a lessee to carry out present and future obligations. Under this paragraph, BOEM will use an investment grade issuer credit rating from a NRSRO, as defined by the SEC, greater than or equal to either BBB− from S&P Global Ratings or Fitch Ratings Inc., or Baa3 from Moody's Investor Service Inc., or the equivalent rating from another NRSRO. If different SEC-recognized NRSROs provide different ratings for the same company, BOEM will apply the highest rating.
As discussed in section III of this preamble, the Department is finalizing the addition of a new paragraph (d)(2) that states that BOEM can also use a proxy credit rating calculated by BOEM based on audited financial information from the most recent fiscal year (including an income statement, balance sheet, statement of cash flows, and the auditor's certificate) greater than or equal to either BBB− from S&Ps Global Ratings or Fitch Ratings Inc., or Baa3 from Moody's Investor Service Inc., or their equivalent from another NRSRO. The proxy credit ratings that BOEM will calculate on behalf of lessees will be structured in the same scale as the standard ratings (
The Department is finalizing revisions to paragraph (d)(3) to address the situation where the lessee does not meet the criterion in paragraph (d)(1) or (2), but one or more co-lessees or co-grant holders meet the criterion. The Regional Director may require a lessee to provide supplemental financial assurance for decommissioning obligations if no co-lessee or co-grant holder has an issuer credit rating or proxy credit rating that meets the threshold set forth in paragraph (d)(1) or (2). In response to comments, BOEM has revised new paragraph (d)(3) to make clear that the presence of such co-lessee or co-grant holder will allow the Regional Director to not require financial assurance from a current lessee only to the extent that the current lessee and that co-lessee or co-grant holder shares accrued liabilities.
The Department is finalizing the addition of a new paragraph (d)(4) to set forth the methodology the Regional Director would use to determine proved reserves if the lessee does not meet the criteria in paragraph (d)(1), (2), or (3). In this instance, the Regional Director will assess each lease, unit, or field to determine whether the value of the discounted proved oil and gas reserves on the lease exceeds three times the undiscounted estimated cost of the decommissioning associated with the production of those reserves. Under paragraph (d)(4), the Regional Director's assessment will be based on the evaluation of proved oil and gas reserves following the methodology set forth in SEC Regulation S-X at 17 CFR 210.4-10 and SEC Regulation S-K at 17 CFR 229.1200. BOEM received multiple comments requesting BOEM allow the proved oil and gas reserve analysis to be based on a unit or field basis, and to clarify when values are discounted and when they are undiscounted in the calculation; BOEM has added clarifications in paragraph (d)(4) to address these comments (
The Department is also finalizing the addition of new paragraphs (d)(4)(i) and (ii), which state that, when implementing this reserves criterion, BOEM will use decommissioning cost estimates, including a BSEE-generated probabilistic estimate at the P70 level when available, or, if such estimate is not available, BOEM will use the BSEE-generated deterministic estimate.
The Department is finalizing, as proposed, redesignation of existing paragraph (d)(2) as paragraph (e) and revisions to provide that a lessee may satisfy the Regional Director's demand for supplemental financial assurance either by increasing the amount of its existing financial assurance or by providing additional surety bonds or other types of acceptable financial assurance.
The Department is finalizing redesignation of existing paragraph (e) as paragraph (f) and revisions to remove the word “bond” and replace it with “supplemental financial assurance,” a term that includes a surety bond or another type of financial assurance. As discussed in section III.B of this preamble, the Department is finalizing the use of the BSEE P70 decommissioning probabilistic estimate to determine the amount of supplemental financial assurance required to guarantee compliance when there are insufficient reserves or no current lessee or co-lessee that meets the criterion in § 556.901(d)(1) or (2). The Department is finalizing, as proposed, the inclusion of the language from existing paragraph (e) in new paragraph (f) to establish that, in determining the
The Department is finalizing, as proposed, redesignation of existing paragraph (f) as paragraph (g) and revisions to replace the words “bond” and “surety” with “financial assurance” throughout. Existing regulation 30 CFR 556.901(f)(2) includes a statement to the effect that, if a company requests a reduction of the amount of the original bond required, the Regional Director may agree to such a reduction provided that he or she finds that “the evidence you submit is convincing.” The Department is finalizing, as proposed, the replacement of this less prescriptive regulatory text with new paragraph (g)(2) that states an entity must submit evidence to the Regional Director that demonstrates that the projected amount of royalties due to the United States Government and the estimated costs of decommissioning are less than the required financial assurance amount. Additionally, through the same process, BOEM will allow an entity to request a reduction if it opposes the amount of a proposed increase in the amount of financial assurance required.
The Department is finalizing the addition of new paragraph (h) to describe the limited opportunity lessees will have to provide the required supplemental financial assurance in phased installments during the first 3 years after the effective date of this regulation, subject to the conditions of paragraphs (h)(1) and (2). The Department proposed and is finalizing a 3-year approach, as discussed in section III.E of this preamble, which is appropriate to mitigate potentially significant risk to companies and to provide adequate time for the bonding market to adjust. Additionally, this approach reduces the immediate regulatory burden on lessees and grant holders that are required to provide financial assurance as a result of this rule, which are likely to mainly be small businesses.
The Department is finalizing the addition of new paragraphs (h)(1)(i) through (iii) to establish the timing and amounts of phased supplemental financial assurance that would need to be provided. Submissions would be required in three installments of one-third of the demand each, the first of which would be required within the timeframe specified in the demand letter, or within 60 calendar days of receiving the demand letter if no timeframe is specified. The second one-third would be required within 24 months from the date of receipt of the original demand letter, and the final installment would be due within 36 months from the date of the receipt of the original demand letter.
Additionally, the Department is finalizing, as proposed, the addition of new paragraph (h)(2) to establish a procedure in case a demand that has been approved for phased compliance is not met within the timeframes established by paragraphs (h)(1)(i) through (iii). If a phased compliance deadline under paragraphs (h)(1)(i) through (iii) is missed, the Regional Director will notify the party of the failure to meet the timeframe and that it will no longer be eligible to meet the supplemental financial assurance demand by using the phased compliance option set forth in paragraph (h). Moreover, the remaining balance of the demand will become due ten calendar days after the Regional Director's notification is received.
The Department is finalizing, as proposed, revisions to the section heading to read, “General requirements for bonds or other financial assurance,” to recognize that other types of financial assurance, such as a dual-obligee bond or a pledge of Treasury securities, may be provided under part 556. These amendments clarify that the same general requirements for financial assurance provided by lessees, operating rights owners, or operators of leases also apply to financial assurance provided by RUE grant and pipeline ROW grant holders. The final rule also revises paragraph (a), as proposed, to include “grant holder” and “record title holder” and to cover financial assurance provided under 30 CFR part 550. The requirements of this section are those that apply broadly to all types of financial assurance provided to BOEM for oil and gas activities on a lease or grant. Additional requirements applicable specifically to RUEs and ROWs are described in §§ 550.166 and 550.1011, respectively.
The Department is finalizing, as proposed, the addition of “or grant” after “lease” to clarify the change to include grant holders in paragraph (a)(2). The rule also adds compliance with “all BOEM and BSEE orders” as a requirement. Additionally, the final rule revises proposed paragraph (a)(3) to include the obligations of all record title owners, operating rights owners, and operators on the lease, except as stated in § 556.905(b) and to add “all grant-holders on a grant.”
The Department is finalizing, as proposed, a revision to paragraph (e)(2) to clarify that the use of Treasury securities as financial assurance requires a pledge of Treasury securities, as provided in § 556.900(f).
The Department is finalizing, as proposed, the addition of new paragraph (g) to recognize the option to seek an informal resolution of a surety bond demand pursuant to § 590.6. This paragraph further provides that a request for an informal resolution of a dispute concerning the Regional Director's decision to require supplemental financial assurance will not affect the applicant's ability to request a phased payment of its supplemental financial assurance demand under § 556.901(h).
The Department is finalizing, as proposed, the addition of a new paragraph (h) to address risks arising in connection with the lessee's and grant holder's ability to stay the demand during an appeal of a demand for supplemental financial assurance to the IBLA pursuant to the regulations in 30 CFR part 590. The rule adds an additional requirement to the IBLA appeals process whereby if an appellant requests that the IBLA stay the supplemental financial assurance demand, the appellant will be required to post an appeals surety bond equal to the amount of supplemental financial assurance that the appellant seeks to stay before any stay can go into effect. Because IBLA appeals may continue for several years, it is important that BOEM ensure that the government's and taxpayers' interests are protected during the appeal. The appeal surety bond requirement will prevent the government from being left with inadequate security if the appellant files bankruptcy before the appeal process ends.
The Department is finalizing, as proposed, the replacement of the word “bond” in the section heading with “financial assurance” for consistency with the terminology change made throughout the subpart. The final rule revises paragraph (a) to add after the word “surety,” “guarantor, or the financial institution holding or providing your financial assurance” and to include references to the financial assurance requirements for RUE grants (§ 550.166) and pipeline ROW grants (§ 550.1011). The final rule also revises, as proposed, paragraph (a) by removing the words “terminates immediately” and substituting the words “must be replaced.” The final rule, in paragraph
The Department is also finalizing, as proposed, a revision to the first sentence of paragraph (b) by inserting “or financial institution” after “guarantor,” to make the provision apply to all types of financial assurance providers, including those offering decommissioning accounts. BOEM is revising the second sentence of paragraph (b) for consistency in terminology by inserting the words “or other financial assurance” after the word “bonds” and inserting the words “guarantor, or financial institution” after the word “surety,” so that all surety bonds or other financial assurance instruments must require all financial assurance providers to notify the Regional Director within 72 hours of learning of an action filed alleging that the lessee or grant holder, or their financial assurance provider, is insolvent or bankrupt.
The Department is finalizing, as proposed, the revision of both the section heading and the term “abandonment accounts” throughout the section to read “decommissioning accounts,” in accordance with BOEM policy and accepted terminology used in the industry. The words “lease-specific” are removed throughout this section to make clear that a decommissioning account can be used for a lease or several leases, a RUE grant, or a pipeline ROW grant, or a combination thereof.
The Department is finalizing, as proposed, revisions to paragraph (a) to remove the term “lease-specific” and replace “abandonment” with “decommissioning,” and the addition of references to the lease base and supplemental financial assurance regulation (§ 556.901(d)), as well as the financial assurance regulations for RUE grants (§ 550.166(b)) and pipeline ROW grants (§ 550.1011(d)), consistent with the changes mentioned in the preceding paragraph. Although the paragraph (a) introductory text continues to allow a lessee or grant holder to establish a decommissioning account at a federally insured financial institution, this final rule eliminates the existing restriction that such deposits not exceed the FDIC/FSLIC insurance limits and the reference to paragraph (a)(3), which is being revised and is no longer relevant to withdrawal of funds from a decommissioning account.
The final rule, as proposed, re-arranges the existing sentence constituting § 556.904(a)(1). The rule also revises paragraph (a)(2) to remove the words “as estimated by BOEM” to clarify that BOEM does not estimate decommissioning costs, but rather uses the estimates of decommissioning costs determined by BSEE. The final rule also revises paragraph (a)(2) to require funding of a decommissioning account “pursuant to a schedule that the Regional Director prescribes,” as opposed to “within the timeframe the Regional Director prescribes” as existing § 556.904(a)(2) now states.
The Department is finalizing revisions to paragraph (a)(3) as proposed to remove the requirement to provide binding instructions to purchase Treasury securities for a decommissioning account under certain circumstances. The final rule replaces the existing language with a new provision providing that if you fail to make the initial payment or any scheduled payment into the decommissioning account, or if you fail to correct a missed payment within 30 days, you must immediately submit, and subsequently maintain, a surety bond or other financial assurance in an amount equal to the remaining unsecured portion of your estimated decommissioning liability. This change reflects BOEM's current policy to order a surety bond or other financial assurance in the event the payments into the decommissioning account are not timely made.
The Department is finalizing, as proposed, revisions to paragraph (b) by removing “lease-specific” and substituting “decommissioning” and to clarify that the interest paid on funds in the account will become part of the principal funds in the account unless the Regional Director authorizes, in writing, the payment of the interest to the party who deposits the funds.
The Department is finalizing, as proposed, the removal of existing paragraphs (c) and (d), which discuss the use of pledged Treasury securities to fund a decommissioning account. Existing paragraph (e) is redesignated as paragraph (c) except that the word “pledged” is removed, and “other revenue stream” is added to the list of optional sources for funding the account. In response to comments asserting that parties may elect to dedicate production to fund decommissioning accounts even if the Regional Director does not “require” them, the Department is adding to new paragraph (c) that the Regional Director may “authorize,” in addition to “require,” the optional funding sources.
The Department is finalizing the addition of new paragraph (d) with minor edits from the proposal, which describes the Regional Director's discretion to authorize BOEM to provide funds from a decommissioning account to a party that performs the decommissioning in response to a BOEM or BSEE order.
The Department is finalizing, as proposed, revisions to the section heading to read, “Third-party guarantees.” The final rule also revises the section throughout to remove the introductory titles of each paragraph to provide consistency in the format of the final regulatory text.
The Department is finalizing, as proposed, revisions to paragraph (a) to reference § 556.901(d) (related to lease financial assurance), and to cross-reference § 550.166(b) (related to RUEs) and 550.1011(d) (related to pipeline ROWs), to clarify that a third-party guarantee may be used as a type of supplemental financial assurance for not only leases, but RUE grants and pipeline ROW grants as well.
The Department is also finalizing, as proposed, revisions to paragraph (a)(1) to clarify that the guarantor, not the guarantee, as provided in the existing regulation, must meet the criteria in § 556.901(d)(1) or (2), as applicable. BOEM retains existing paragraph (a)(2), but revises it to include a requirement, which is found in existing paragraph (a)(4), that the guarantor or guaranteed party must submit a third-party guarantee agreement containing each of the provisions in proposed paragraph (d). As discussed below, paragraph (d) is revised to no longer use the term “indemnity agreement” and to provide instead that the provisions that BOEM previously required a lessee or grant holder to include in indemnity agreements must be included in a third-party guarantee agreement. This terminology is changed to clarify that the government is not required to incur the expenses of decommissioning before demanding compensation from the guarantor. The rule also removes existing paragraphs (a)(3) and (4), which are superseded by other revisions to this section.
The Department is finalizing the proposed new paragraph (b) with edits to allow guarantors to limit their guarantees to a fixed dollar amount, as agreed to by BOEM at the time the third-party guarantee is provided. In response
The Department is finalizing, as proposed, redesignation of existing paragraph (b) as paragraph (c) and revisions to the introductory text to remove the reference to existing paragraph (c)(3) because the requirements in that paragraph have been superseded in this rule. The final rule replaces this reference with a reference to paragraph (a)(1) as revised. Because the cessation of production is neither desirable nor easily accomplished by an operator, this rule also revises existing paragraph (b)(2) to remove the requirement that, when a guarantor becomes unqualified, you must “cease production until you comply with the surety bond coverage requirements of this subpart.” Instead, the language in revised redesignated paragraph (c) provides that you must, within 72 hours, “[s]ubmit, and subsequently maintain a surety bond or other financial assurance covering those obligations previously secured by the third-party guarantee.” Additionally, the final rule removes existing paragraph (c) as the language has been superseded by the new language in § 556.905(a).
The Department is finalizing, as proposed, revisions to the paragraph (d)(1) introductory text to read “If you fail to comply with the terms of any lease or grant covered by the guarantee, or any applicable regulation, your guarantor must either:” This revision is made for consistency with the revision of paragraph (a) to allow the use of a third-party guarantee for a RUE grant or a pipeline ROW grant.
Additionally, the rule revises, as proposed, paragraph (d)(1)(i) to clarify that the corrective action required is to bring the lease or grant into compliance with its terms, or any applicable regulation, to the extent covered by the guarantee. The rule also revises paragraph (d)(1)(ii) to clarify that the liability only extends to that covered by the guarantee and that payment of some amount less than the whole of the guarantee does not result in the cancellation of the guarantee, but rather a reduction in the remaining value of the guarantee equal to the payment made.
The rule removes existing paragraph (d)(2) for consistency with the revision to remove existing paragraph (c), as proposed. As a result, existing paragraph (d)(3) is redesignated as paragraphs (d)(2) and (4) is redesignated as paragraph (d)(3). The rule revises, as proposed, the redesignated paragraphs (d)(2)(ii) and (iii) to remove the words “your guarantor's” and replace them with the word “the” to clarify that redesignated paragraph (d)(2) applies to the guarantee itself. Lastly, as proposed, the rule revises redesignated paragraph (d)(3) to replace the term “a suitable replacement financial assurance” with “acceptable replacement financial assurance” for clarity. The rule revises the paragraph so that it is clear that any replacement financial assurance must be provided before the termination of the period of liability of the third-party guarantee.
The Department is finalizing, as proposed, a new paragraph (e) to provide that BOEM will cancel a third-party guarantee under the same terms and conditions as those in revised § 556.906(b) and/or (d)(3).
The Department is finalizing the addition, as proposed, of new paragraphs (f) through (k) to replace the provisions of existing paragraph (e). The new paragraphs mirror the provisions of existing paragraph (e), while making minor adjustments to accommodate the new format and add clarification. The term “indemnity agreement” would be replaced with “third-party guarantee agreement” throughout.
The Department is finalizing, as proposed, the replacement of the words “security” and “surety bond” with “financial assurance” and “surety” with “financial assurance provider” for consistency with the changes throughout the subpart. The section heading is also revised so that “a bond” is replaced with “financial assurance.”
This final rule revises existing paragraph (b)(1) to remove the word “terminated” in two instances and replace it with “cancelled” to be consistent with the existing paragraph (b) introductory text, which provides that the Regional Director will cancel your previous financial assurance when you provide a replacement, subject to the conditions provided in paragraphs (b)(1) through (3). BOEM is also removing the word “for” before “by the bond” in paragraph (b)(1) for grammatical reasons.
The Department is finalizing, as proposed, revisions to existing paragraph (b)(2) to add cross-references to § 550.166(a), which is the financial assurance regulation for RUE grants, and § 550.1011(a), which is the financial assurance regulation for pipeline ROW grants, and revising existing paragraph (b)(3) to also reference supplemental financial assurance regulations for RUE grants (§ 550.166(b)) and pipeline ROW grants (§ 550.1011(d)). The Department is finalizing the deletion of the word “base” in front of financial assurance to clarify that the new financial assurance would replace whatever financial assurance previously existed, whether that financial assurance consisted of base financial assurance alone or together with any prior supplemental financial assurance.
The Department is finalizing, as proposed, revisions to the introductory text of paragraph (d) to cover financial assurance cancellations and return of pledged security and, in the table, is removing the middle column titled, “The period of liability will end,” because it was redundant with the provisions in proposed paragraphs (a) through (c).
In table 1 to paragraph (d), the Department is finalizing revisions to the column headers. In the existing column in the table titled, “For the following type of bond,” BOEM is removing the words “type of bond” and replacing those words with a colon at the top of the table so that this paragraph would apply to surety bonds or other financial assurance, as applicable. The existing column in the table titled, “Your bond will be cancelled,” is revised to read, “Your financial assurance will be reduced or cancelled, or your pledged financial assurance will be returned,” to clarify that financial assurance may be reduced or cancelled and pledged financial assurance, or a portion thereof, may be returned, and to specify other circumstances under which the Regional Director may cancel supplemental financial assurance or return pledged financial assurance. While the existing criteria identify most instances when cancellation of financial assurance is appropriate, occasionally there are other circumstances where cancellation would be warranted, as discussed in the paragraphs below.
Paragraph (d)(1) in the table 1 to paragraph (d) is revised to include a cross-reference to base financial assurance submitted under §§ 550.166(a) (for RUE grants) and 550.1011(a) (for pipeline ROW grants). The Department is finalizing revisions to paragraph (d)(2) in the same column to include a reference to supplemental financial assurance submitted under §§ 550.166(b) and 550.1011(d). The rule allows cancellation when BOEM determines, using the criteria set forth in § 556.901(d), § 550.166(b), or
The Department is finalizing, as proposed, revisions to the introductory text in paragraph (e) to remove the words “or release” because the term “release” is undefined and not used in practice. Likewise, the rule removes the words “or released” from paragraph (e)(2). No substantive change is intended; rather BOEM seeks to clarify the meaning of the existing provision. Additionally, the Department is finalizing the revisions of paragraph (e) to reference RUE grants and pipeline ROW grants to provide that the Regional Director may reinstate the financial assurance on the same grounds as currently provided for reinstatement of lease financial assurance.
The rule revises the section heading to read, “Forfeiture of bonds or other financial assurance” because the use of “or” is sufficient in this instance. The rule revises paragraph (a)(1) to include surety bonds or other financial assurance for RUE grants and pipeline ROW grants, in addition to leases, in the forfeiture provisions of this section. The Department is finalizing, as proposed, the clarification in paragraph (a)(2) that the Regional Director may pursue forfeiture of a surety bond or other financial assurance if you default on one of the conditions under which the Regional Director accepts your bond, third-party guarantee, and/or other form of financial assurance. Throughout this section, BOEM adds references to a grant, a grant holder, and grant obligations to implement the revisions in paragraph (a)(1). BOEM is revising paragraph (a)(2) to replace “other form of security” with “other form of financial assurance” for consistent terminology.
The Department is finalizing, as proposed, revisions to paragraph (b) to include surety bonds “or other financial assurance” so that BOEM may pursue forfeiture of a surety bond or other financial assurance. The word “lessee” is replaced with “record title holder” to clarify that the term includes record title holders in those situations where operating rights are subleased.
The Department is finalizing, as proposed, revisions to paragraph (c)(1) to include “financial institution holding or providing your financial assurance” as one of the parties the Regional Director would notify of a determination to call for forfeiture because a bank or other financial institution may hold funds subject to forfeiture. This rule revises paragraph (c)(1)(ii) to acknowledge limitations authorized by § 556.905(b) by more precisely stating that the Regional Director will use an estimate of the cost of the corrective action needed to bring a lease into compliance when determining the amount to be forfeited, subject, in the case of a guarantee, to any limitation authorized by § 556.905(b). Additionally, BOEM is replacing existing paragraphs (c)(2)(ii) and (iii) with a new paragraph (c)(2)(ii) that specifies that to avoid forfeiture by promising to take corrective action, any financial assurance provider would have to agree to, and demonstrate that it will, complete the required corrective action to bring the relevant lease into compliance within the timeframe specified by the Regional Director, even if the cost of such compliance exceeds the amount of the financial assurance. The amendments clarify that existing paragraphs (c)(2)(ii) and (iii) apply to all forms of financial assurance, including the caveat that corrective action must be completed even if the cost of compliance exceeds the limit of the financial assurance.
The Department is finalizing, as proposed, revisions to existing paragraphs (d) and (e)(2) by replacing “leases” with “lease or grant” to extend the applicability of these provisions to include RUE and ROW grants.
Similarly, the Department is finalizing, as proposed, revisions to paragraph (f)(1) to include “grant” as well as lease. The Department is revising paragraph (f)(2) to clarify that BOEM may recover additional costs from a third-party guarantor only to the extent covered by the guarantee. This is consistent with the change made at § 556.905(b) to allow the use of limited third-party guarantees. This rule also rewords paragraph (g) for clarity.
In some circumstances, predecessor lessees that have been notified about the failure of their successor lessees to fulfill their decommissioning obligations will initiate the requisite decommissioning activities. In these cases, predecessor lessees or grantees are likely to incur costs that could be funded from financial assurance posted with BOEM on behalf of the current lessee. BOEM has finalized new paragraph (h), as proposed, to make clear that BOEM may provide funds collected from forfeited financial assurance to predecessor lessees or grant holders or to third parties taking corrective actions on the lease or grant.
The Department is revising the heading of subpart A to remove the outdated reference to “Offshore Minerals Management.” The heading now reads “Bureau of Ocean Energy Management Appeals Procedures” to reflect the current organization of the DOI more accurately. This outdated reference was identified after the proposed rule was published. This edit is not substantive and therefore was included in this final rule.
The Department is revising the introductory text to remove the outdated references to “Offshore Minerals Management (OMM) decisions” and to correct prior erroneous text that stated the decisions and orders which are being appealed under part 590 are issued under subchapter C. The outdated reference and erroneous text were identified after the proposed rule was published. This edit is not substantive and therefore was included in this final rule.
The Department is revising the introductory text to remove the outdated reference to “OMM officials” and to correct that the decisions and orders which are being appealed under part 590 are not issued under subchapter C. The outdated reference and erroneous text were identified after the proposed rule was published. This edit is not substantive and therefore was included in this final rule.
The Department is revising the introductory text to remove the outdated reference to “OMM official's final decision” and replacing it with the correct reference to “BOEM.” This outdated reference was identified after the proposed rule was published. This edit is not substantive and therefore was included in this final rule.
The Department is revising paragraph (a) to remove the outdated reference to “OEMM officer” and replacing it with the correct reference to “BOEM.” This outdated reference was identified after the proposed rule was published. This edit is not substantive and therefore was included in this final rule.
The Department is finalizing, as proposed, the addition of paragraph (c) to specify that, while a demand for supplemental financial assurance may be appealed to the IBLA, a stay can only be granted if an appeal surety bond for an amount equal to the demand is posted. This is intended to mitigate the risk to the government that, after the appeal is decided, a company will be unable to perform its obligations because of its financial deterioration during pendency of the appeal.
The Department is revising paragraphs (a)(1) and (b) to remove the outdated reference to “OMM” and replacing it with the correct reference to “BOEM.” This outdated reference was identified after the proposed rule was published. This edit is not substantive and therefore was included in this final rule.
The Department is revising paragraph (a) to remove an erroneous reference that previously stated that the decisions and orders, which are being appealed under part 590, are issued under subchapter C.
E.O. 12866, as amended by E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is a significant action under E.O. 12866, as amended by E.O. 14094, sec. 3(f)(1). This rulemaking will result in an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of OIRA for changes in gross domestic product).
E.O. 13563 reaffirms the principles of E.O. 12866, as amended by E.O. 14094, while calling for improvements in the Nation's regulatory system to promote predictability and reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. BOEM has developed this rule in a manner consistent with these requirements.
BOEM prepared an analysis of the potential costs and benefits associated with this action, which are described in the following OMB Circular A-4 Accounting Statement. For further discussion, this analysis,
The RFA, 5 U.S.C. 601-612, requires agencies to analyze the economic impact of regulations when a significant economic impact on a substantial number of small entities is likely and to consider regulatory alternatives that will achieve the agency's goals while minimizing the burden on small entities. Pursuant to sections 603 and 609(b) of the RFA, BOEM prepared an initial regulatory flexibility analysis (IRFA) for the proposed rule that examined the impacts of the proposed rule on small entities, along with regulatory alternatives that could minimize that impact. A summary of the IRFA is presented in the proposed rule at 88 FR 42157 and was included in the docket for public comment (
As required by section 604 of the RFA, BOEM prepared a final regulatory flexibility analysis for this action. The analysis addresses the issues raised by public comments on the IRFA for the proposed rule. The complete analysis is available for review in the docket (Docket No. BOEM-2023-0027) and is summarized here.
The final rule affects OCS lessees and RUE and pipeline ROW grant holders; this includes approximately 391 companies with ownership interests in OCS leases and grants, of which approximately 271 (69 percent) are considered small. Because all 391 companies are subject to this final rule, BOEM expects the rule will affect a substantial number of small entities.
Under this final rule, BOEM will consider the financial capacity of all co-owners when determining the need for current lessees and grant holders to provide supplemental financial assurance. If one of these entities meets the issuer credit or BOEM proxy credit rating criteria, BOEM will not require the current lessee or grant holder to provide supplemental financial assurance. This will benefit financially strong lessees or grant holders that meet the investment grade credit rating criteria and lessees and grant holders that do not meet the credit rating criteria but are co-owners with investment grade co-lessees or co-grant holders. Certain lessees or grant holders with less-than-investment-grade credit ratings that are solely responsible for their OCS liability (sole liability leases or grants) are already bonded under the current regulations and these lessees will not be impacted. BOEM's analysis assumes that such non-investment-grade lessees and grant holders with non-investment-grade co-lessees or co-grant holders that have avoided financial assurance under the current regulations will be expected to provide financial assurance under this final rule. BOEM's estimates indicate that small entities are responsible for $11.6 billion, or approximately 80 percent, of the current $14.6 billion liability of non-investment-grade owners. Non-investment-grade small entities holding joint and several liabilities with other such companies will incur increased compliance burdens under the rule, assuming they do not meet the minimum 3-to-1 ratio of the value of proved reserves to decommissioning liability associated with those reserves. This increased compliance burden will vary substantially by entity; the burden is a function of the small entity's decommissioning liability, reserves, and the price of the premiums paid for its financial assurance. Based on the estimates in Table 7 of the RIA, these premiums could exceed $258 per $1,000 of bond coverage for highly speculative small entities.
The regulatory alternatives evaluated for the rule are discussed in section VI (
Under BOEM's less stringent regulatory alternative, small entities with a credit rating lower than BB- currently responsible for a liability that has at least one investment-grade predecessor lessee would benefit by avoiding the need to provide any supplemental financial assurance. However, a regulatory framework permitting financially weaker companies to forgo or delay the posting of supplemental financial assurance may create a private cost advantage for certain entities. This could distort competition and incentivize financially weaker companies to incur investment risks for activities they would otherwise not undertake.
BOEM has elected to maintain the proposed rule credit threshold of investment grade (
Under the more stringent regulatory alternative in the proposed rule, BOEM evaluated the full implementation of BOEM's 2016 NTL. In this alternative (“Alternative 1”), more small businesses would be required to provide supplemental financial assurance because all companies rated A+ and below (S&P) would be required to provide financial assurance to secure their OCS liabilities. BOEM determined that this alternative would not meaningfully reduce risk in comparison with the proposal and would result in significant new costs to industry. Aside from the prior implementation issues with the NTL, the 2016 NTL did not consider risk reduction provided by reserves. As a result, it would cost approximately $1 billion more in annual premiums, and the additional coverage over the final rule would come from investment grade companies that pose a much lower risk of default. Because A+, A, and A- companies have very low default rates, and any co-lessee or predecessor lessee would have responsibilities of covering decommissioning, the small reduction in risk beyond what is provided in the rule would not justify the cost of this regulatory alternative.
Under BOEM's proposed rule, all lessees without an investment-grade co-lessee were required to provide financial assurance at the P70 level if they did not meet the investment-grade credit rating threshold or have a minimum value of proved reserves to decommissioning liability ratio of 3-to-1. The Department is finalizing provisions that require non-investment-grade lessees responsible for properties to provide financial assurance at the P70 level (unless they qualify for the 3-to-1 ratio of the value of proved reserves to decommissioning liability associated with those reserves exemption).
BOEM has designed its financial assurance program to accommodate small entities, while still fulfilling the goals of minimizing the risk of noncompliance with regulations. BOEM's use of lessee and grant holder issuer or proxy credit ratings and lease reserves for determining whether financial assurance would be required creates a performance standard rather than a prescriptive design standard for all companies operating on the OCS.
Decommissioning obligations and the joint and several liability framework for those obligations are not being changed with this rule. BOEM will not categorically exempt or provide differing compliance requirements for small entities. Categorically exempting small entities from the provisions of this rule based on size would place the taxpayer at unacceptable risk for assuming the decommissioning obligations of small entities. BOEM will use a 3-year, phased compliance approach for all lessees and grant holders to allow additional time to come into compliance in the early years of the rule. This could include arranging to secure financial assurance or suitable partnerships with stronger parties to avoid the necessity of providing financial assurance. Categorically providing small entities with more favorable compliance timetables before requiring financial assurance unreasonably increases risk due to the possible financial deterioration of a given company during that time. BOEM's financial assurance criteria are designed, in part, to provide BOEM ample time to intervene should a company's financial position begin to deteriorate. It is foreseeable that a company not meeting those criteria, but categorically granted additional time to provide financial assurance, could deteriorate more quickly than its compliance timetable and thus not be covered and able to satisfactorily perform its obligations to the public.
The Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 804(2), requires BOEM to perform a regulatory flexibility analysis, provide guidance, and help small businesses comply with statutes and regulations for major rulemakings. This action is subject to the SBREFA because it has an annual effect on the economy of $100 million or more.
Small businesses are expected to face increased compliance costs from this action, unless they have a financially strong co-lessee. BOEM estimates that the annual compliance cost for small businesses is $421 million (discounted at 7 percent). BOEM must apply the same requirements to all weak companies, regardless of size, in order to ensure that the development of energy in the OCS is safe and protects both the taxpayer and the environment. BOEM acknowledged that small businesses may not have issuer credit ratings in the proposed rule (88 FR 42146) and proposed, and is finalizing, provisions allowing entities without a credit rating to have the BOEM Regional Director assess a proxy credit rating to address this issue. Additionally, these small businesses can be evaluated on the proved reserves of their lease to determine if they may be required to provide additional supplemental financial assurance, also potentially reducing their financial burden. Furthermore, a strong co-lessee will obviate the need for financial assurance from the rest of the co-lessees on the lease. BOEM is also including a phased-in implementation and removal of impediments to the use of decommissioning accounts and third party guarantees to provide flexibility and reduce the financial burden. BOEM is tasked with ensuring that all lessee obligations in the OCS are met and believes this rulemaking is necessary to address insufficient financial resources available in the case of default.
For more information on the small business impacts, see the RFA analysis and the discussion in section IV of this preamble. Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman, and to the Regional Small Business Regulatory Fairness Board. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of BOEM, call 1-888-REG-FAIR (1-888-734-3247).
The UMRA, 2 U.S.C. 1531-1538, requires BOEM, unless otherwise prohibited by law, to assess the effects
Because all anticipated private sector expenditures that may result from the proposed rule are analyzed in the proposed rule RIA and in the RIA for this final rule (
This action is not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
Executive Order 12630,
Regulatory actions that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government are subject to E.O. 13132. Under the criteria in section 1 of E.O. 13132, this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. 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. No comments were received on E.O. 13132 during the public comment period.
This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(1) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(2) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
No comments were received on E.O. 12988 during the public comment period.
Executive Order 13175 defines polices that have Tribal implications as regulations, legislative comments or proposed legislation, and other policy statements or actions that will or may have a substantial direct effect on one or more Indian Tribes, or on the relationship between the Federal Government and one or more Indian Tribes. Additionally, the DOI's consultation policy for Tribal Nations and ANCSA Corporations, as described in Departmental Manual part 512 chapter 4, expands on the above definition from E.O. 13175 and requires that BOEM invite Indian Tribes and ANCSA Corporations “early in the planning process to consult whenever a Departmental plan or action with Tribal Implications arises.” BOEM strives to strengthen its government-to-government relationships with Tribal Nations through a commitment to consultation with Tribes, recognition of their right to self-governance and Tribal sovereignty, and honoring BOEM's trust responsibilities for Tribal Nations.
As discussed in the proposal (88 FR 42161), BOEM evaluated the proposed rule under DOI's consultation policy and under the criteria in E.O. 13175 and determined that, while the proposed rule would likely not cause any substantial direct effects on environmental or cultural resources, there may be resource or economic impacts to one or more federally recognized Indian Tribes or ANCSA Corporations as a result of the proposed rule. BOEM sent letters to all Tribes and ANCSA Corporations on March 31, 2023, to ensure they were aware of the proposed rulemaking, to answer any immediate questions they may have, and to invite formal consultation if they would like to consult. Only one request for consultation was received, and consultation was held with the Red Willow (Southern Ute Tribe) on June 28, 2023, and meeting notes are included in the docket (memorandum titled
The PRA of 1995 (44 U.S.C. 3501-3521) provides that 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. Collections of information include requests and requirements that an individual, partnership, or corporation obtain information and report it to a Federal agency (44 U.S.C. 3502(3); 5 CFR 1320.3(c) and (k)). This final rule contains collections of information that were submitted to the OMB for review and approval under 44 U.S.C. 3507(d).
A proposed rule, soliciting comments on this collection of information for 30 days, was published on June 29, 2023 (88 FR 42136). No comments on the collections of information were received.
This final rule references existing information collections (ICs) previously approved by OMB and adds new IC requirements for these Department regulations that have been submitted to OMB for review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• 1010-0006 (BOEM),
• 1010-0114 (BOEM),
This final rule modifies collections of information under 30 CFR part 550, subparts A and J, and 30 CFR part 556, subpart I, concerning financial assurance requirements (such as bonding) for leases, pipeline ROW grants, and RUE grants. OMB has reviewed and approved the existing information collection requirements associated with financial assurance regulations for leases (30 CFR 556.900 through 556.907), pipeline ROW grants (30 CFR 550.1011), and RUE grants (30 CFR 550.160 and 550.166).
BOEM estimates that the number of information collection burden hours for the final rule overall is close to the same as that for the existing regulatory framework. When the rule becomes effective, the new and changed provisions will increase the overall annual burden hours for OMB Control Number 1010-0006 by 77 hours (totaling 22,012 annual burden hours) and 264 responses (totaling 22,090 responses) as justified below. The changed provisions for OMB Control Number 1010-0114 add new and revised requirements in 30 CFR part 550, subpart A, but do not impact the overall burden hours for this control number because the burdens for these provisions are counted under OMB Control Number 1010-0006. However, the regulatory descriptions of new and modified requirements are extensive enough to require an update of the IC bearing that OMB control number.
When needed, BOEM will submit future burden changes (either increases or decreases) of the OMB control numbers with reasoning to OMB for review and approval. Every 3 years, BOEM will also review the burden numbers for changes, seek public comment, and submit any request for changes to OMB for approval.
The following is a brief explanation of how the regulatory changes in this rulemaking affect the various subparts' hour and non-hour cost burdens for OMB Control Number 1010-0114:
BOEM's existing regulations concerning RUE grants supporting an OCS lease and a State lease are found at 30 CFR 550.160 through 550.166. The burdens related to 30 CFR 550.160 and 550.166 are identified in OMB Control Number 1010-0114 but accounted for in OMB Control Number 1010-0006.
Existing § 550.160 provides that an applicant for a RUE that serves an OCS lease must meet bonding requirements, but the regulation does not prescribe a base amount. This rule replaces this requirement with a cross-reference to the specific criteria governing financial assurance demands in § 550.166. Therefore, BOEM is establishing a Federal RUE base financial assurance requirement matching the existing base surety bond requirement for State RUEs. The annual burden hour does not change since RUEs that serve OCS leases are currently already meeting financial assurance requirements under BOEM's agreement-specific conditions of approval.
In § 550.166, BOEM is establishing a $500,000 area-wide RUE financial assurance requirement that guarantees compliance with the regulations and the terms and conditions of any RUE grants an entity holds. Previously, $500,000 in financial assurance for RUEs was only required for RUEs associated with State leases. BOEM is also allowing any lessee that has posted area-wide lease financial assurance to modify that financial assurance to also cover any RUE(s) held by the same entity.
BOEM is also revising the RUE regulations to clarify that any RUE grant holder, whether the RUE serves a State or Federal lease, may be required to provide supplemental financial assurance for the RUE if the grant holders do not meet the credit rating or proxy credit rating criterion. The existing regulations authorized demands for supplemental financial assurance but specified no criteria. The annual burden hour would not change based on these clarifications.
BOEM added § 550.167 to explain the requirements for obtaining and assigning an interest in a RUE. To obtain a RUE or assignment of a RUE, the applicant or assignee must apply for and receive approval from BOEM. Some of the new requirements parallel those for ROW assignments in BSEE's regulations at 30 CFR 250.1018. BOEM is expanding the burden estimate for RUE application requirements to include the application to obtain a RUE or assign a RUE interest in § 550.167. BOEM estimates 9 hours per respondent for requirements related to RUE applications or requests to assign a RUE interest.
The following is the revised burden table and a brief explanation of how the regulatory changes affect the various subparts' hour and non-hour cost burdens for OMB Control Number 1010-0006:
Section 550.1011(d) relates to BOEM's determination of whether supplemental financial assurance is necessary to ensure compliance with the obligations under a pipeline ROW grant. This determination will be based on whether pipeline ROW grant holders have the ability to carry out present and future
30 CFR part 556, subpart I (OMB Control Number 1010-0006):
A new provision at 556.900(a) clarifies that supplemental financial assurance required by the Regional Director must be provided before an assignment of a lease is approved. The burden increase for this requirement is included in OMB Control Number 1010-0006. Supplemental financial assurance required by this provision does not significantly impact the burdens due to low occurrence, but BOEM is accounting for the change in the burden table.
Section 556.901(d) relates to BOEM's determination of whether supplemental financial assurance is necessary to ensure compliance with the obligations under a lease. The lessee will be required to provide supplemental financial assurance if it does not meet at least one of the criteria outlined in the final regulations in this section.
Section 556.901(d)(1) bases this determination on an investment grade issuer credit rating.
Section 556.901(d)(2) provides that, alternatively, BOEM will consider a proxy credit rating, which must be based on audited financial information for the most recent fiscal year.
Section 556.901(d)(3) provides that BOEM will consider whether the co-lessee or co-grant holder has an issuer credit rating or proxy credit rating that meets the investment-grade threshold. The presence of such co-lessee or co-grant holder will allow the Regional Director to not require financial assurance only to the extent that the lessee or grant-holder and that co-lessee or co-grant holder share accrued liabilities, and the Regional Director may require the lessee or grant holder to provide supplemental financial assurance for decommissioning obligations for which such co-lessee or co-grant holder is not liable.
Section 556.901(d)(4) provides that BOEM will also consider the net present value of proved oil and gas reserves on the lease. Lessees' submission of information on proved reserves would account for additional annual burden hours. The lessee would not need to submit proved reserve information if supplemental financial assurance is not required based on its issuer credit rating or proxy credit rating, or those of its co-lessees.
The existing OMB-approved hour burden for each respondent to prepare and submit the information for the existing evaluation criteria requirements is 3.5 hours. In this rule, the revision of the evaluation criteria results in requiring less time for the respondents to prepare and submit the information, particularly for issuer credit rating. If companies choose to demonstrate that the net present value of proved oil and gas reserves on the lease exceeds three times the undiscounted cost of decommissioning associated with production of those reserves, then the time necessary for companies to prepare and submit information on the proved oil and gas reserves is likely greater than 3.5 hours. Therefore, BOEM is retaining the average 3.5-hour burden to reflect the decrease in time required to prepare and submit issuer credit ratings and audited financials and the increase in time required for preparing and submitting information on proved reserves. When the final rule becomes effective, the related burden hours for all respondents (lessee, co-lessee, grant holder, and co-grant holder) will be included in OMB Control Number 1010-0006.
The OMB-approved number of respondents who currently submit financial information under the existing provision is 166 respondents. Recently, BOEM has seen the number of leases decrease in the Gulf of Mexico. BOEM estimates the new number of respondents will be between 150 and 160 respondents. For this request, BOEM is using the higher number of 160 respondents (minus 6 respondents). This number will be reviewed during the next IC renewal process. When the final rule becomes effective, BOEM will include the new number of respondents in OMB Control Number 1010-0006.
The existing OMB-approved annual burden hours for § 556.901 related to demonstrating financial worth/ability to carry out present and future financial obligations are 581 hours (166 respondents × 3.5 hours). With the changes provided in this rule and described above, BOEM estimates that the annual hour burden will decrease by approximately 21 annual burden hours, and total annual burden hours will equal 560 hours (160 respondents × 3.5 hours). This decrease in annual burden hours will be reflected in OMB Control Number 1010-0006 when the final rule becomes effective.
BOEM is adding paragraph (h) to § 556.901 to establish the limited opportunity to provide the required supplemental financial assurance in installments during the first 3 years after the effective date of this regulation. This provision establishes the timing and proportions of phased supplemental financial assurance that will be required in each installment. The lessee will have the option to submit the supplemental financial assurance once or in installments. If the lessee chooses to provide supplemental financial assurance in installments, the number of submissions of supplemental financial assurance will likely increase, but only in response to demands made during the first 3 years after the effective date of this regulation. OMB has currently approved 45 annual burden hours for supplemental financial assurance submissions (135 submissions which take 20 minutes each to submit). BOEM estimates the burden hours for the proposed installment submissions provision to be 135 annual burden hours (405 submissions × 20 minutes), which is an increase of 90 hours over the existing OMB approval.
The scope of § 556.902(a) has been clarified to include “grant holder” and financial assurance posted under the requirements of 30 CFR part 550. This change would clarify that the same general requirements for financial assurance provided by lessees, operating rights owners, or operators also apply to financial assurance provided by RUE and pipeline ROW grant holders. BOEM proposes to keep the burdens the same as the existing OMB burdens.
Revisions to § 556.904 allow the Regional Director to authorize a RUE grant holder and a pipeline ROW grant holder, as well as a lessee, to establish a decommissioning account as supplemental financial assurance required under § 556.901(d), § 550.166(b), or § 550.1011(d). Because this change represents a new option for grant holders, there are no existing burdens related to this provision under the current OMB approval. BOEM is capturing the increased opportunity to establish decommissioning accounts in
The rule contains a new provision under § 556.904(a)(3), which would require immediate submission of a surety bond or other financial assurance in the amount equal to the remaining unsecured portion of the supplemental financial assurance demand if the initial payment or any scheduled payment into the decommissioning account is not timely made. In the context of paperwork-burden, this provision replaces the existing provision that requires submission of binding instructions. The annual burden hours will remain the same but will shift to the new requirement and will be reflected in OMB Control Number 1010-0006 when the final rule is effective.
New § 556.905(a) relates to the guarantor's ability to carry out present and future obligations. New § 556.905 replaces the term indemnity agreement with a third-party guarantee agreement with comparable provisions. This change would not impact annual burden hours. Section 556.905(a)(2) requires the guarantor to submit a third-party guarantee agreement. Paragraph (d) provides that the terms that the existing regulation requires for indemnity agreements must be included in a third-party guarantee agreement. This change is to avoid any inference that the government must incur the expenses of decommissioning before being indemnified by the guarantor. It is a change of the name of the agreement and does not change the associated burden.
New § 556.905(e) provides that a lessee or grant holder and the guarantor under a third-party guarantee may request BOEM to cancel a third-party guarantee. BOEM will cancel a third-party guarantee under the same terms and conditions provided for cancellation of other forms of financial assurance in § 556.906(d)(2). The current OMB-approved burden under § 556.905(d) and § 556.906 is 189 annual burden hours. BOEM will keep the burdens the same as the current OMB approved burdens at 189 annual burden hours.
New § 556.905(c)(2) eliminates the requirement that a lessee must cease production until supplemental financial assurance coverage requirements are met when a guarantor becomes unqualified. The regulatory provision is replaced with a requirement to immediately submit and maintain a substitute surety bond or other financial assurance. Both the existing and new provisions require the lessee to provide replacement surety bond coverage; however, BOEM's current OMB Control Number 1010-0006 does not quantify the burdens. Therefore, BOEM is adding approximately 8 annual burden hours to OMB Control Number 1010-0006 for any lessee whose guarantor becomes unqualified.
New § 56.905 removes the requirement that a guarantee must ensure compliance with all lessees' or grant holders' obligations and the obligations of all operators on the lease or grant. This revision allows a third-party guarantor, with BOEM's agreement, to limit the obligations covered by the third-party guarantee. In some situations, this change could result in additional paperwork burden due to additional surety bonds or other financial assurance that must be provided to BOEM to cover obligations previously covered by a third-party guarantee. BOEM estimates the number of additional financial assurance demands resulting from this revision to be low and the annual burdens are included in the existing burden estimates for OMB Control Number 1010-0006, and will be revised in future IC requests, if needed.
Section 556.906(d)(2) is revised to add additional circumstances when BOEM may cancel supplemental financial assurance. Section 556.906(d)(2) requires a cancellation request from the lessee or grant holder, or the surety, based on assertions that one of the stated circumstances is present. BOEM already receives these types of requests and has approved the requests, where warranted, as a departure from the regulations. These burdens are already counted in the existing OMB burden estimate for OMB Control Number 1010-0006.
Once this rule becomes effective and OMB approves the information collection requests, BOEM would revise the existing OMB control numbers to reflect the changes. The IC does not include questions of a sensitive nature. BOEM will protect proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and DOI implementing regulations (43 CFR part 2), 30 CFR 556.104,
The PRA requires agencies to estimate the total annual reporting and recordkeeping non-hour cost burden resulting from the collection of information, and we solicit your comments on this item. For reporting and recordkeeping only, your response should split the cost estimate into two components: (1) total capital and startup cost component; and (2) annual operation, maintenance, and purchase of service component. Your estimates should consider the cost to generate, maintain, and disclose or provide the information. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Generally, your estimates should not include equipment or services purchased: (1) before October 1, 1995; (2) to comply with requirements not associated with the information collection; (3) for reasons other than to provide information or keep records for the Government; or (4) as part of customary and usual business or private practices.
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:
(1) Is the proposed information collection necessary or useful for BOEM to properly perform its functions?
(2) Are the estimated annual burden hour increases and decreases resulting from the proposed rule reasonable?
(3) Is the estimated annual non-hour cost burden resulting from this information collection reasonable?
(4) Do you have any suggestions that would enhance the quality, clarity, or usefulness of the information to be collected?
(5) Is there a way to minimize the information collection burden on those who must respond, such as by using appropriate automated digital, electronic, mechanical, or other forms of information technology?
Send your comments and suggestions on this information collection by the date indicated in the
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed environmental analysis under NEPA is not required because this final rule is covered by a categorical exclusion (see 43 CFR 46.205). This final rule meets the criteria set forth at 43 CFR 46.210(i) for a Departmental categorical exclusion in that this action is “of an administrative, financial, legal, technical, or procedural nature.” BOEM has also determined that the final rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
One comment was received on NEPA for the proposed rule. A commenter asserted that a NEPA review of the proposed rule is required. According to the commenter, the rule is highly likely to cause environmental effects because the lack of financial assurance could cause decommissioning to take longer to arrange, resulting in additional damage to the environment and obstacles to navigation.
BOEM disagrees with the commenter's assertion that a NEPA review of the proposed rule is required. BOEM conducted an initial NEPA analysis for the proposed rulemaking and determined that the proposed rule met the criteria for categorical exclusion under 43 CFR 46.210(i) of DOI regulations implementing NEPA. The regulations set forth in this rule are “of an administrative, financial, legal, technical, or procedural nature.” The final rule also meets these criteria. The final rule does not authorize any activities and does not alleviate BOEM's responsibility to conduct the appropriate environmental reviews throughout the OCS development process. This rulemaking does not reduce or eliminate BOEM's environmental review of conventional energy activities.
In promulgating this rule, BOEM did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554, app. C, sec. 515, 114 Stat. 2763, 2763A-153-154). In accordance with the Data Quality Act, the Department has issued guidance regarding the quality of information that it relies upon for regulatory decisions. This guidance is available at the Department's website at:
Under Executive Order 13211, BOEM is required to prepare and submit to OMB a “Statement of Energy Effects” for “significant energy actions.” This should include a detailed statement of any adverse effects on energy supply, distribution, or use (including a shortfall in supply, price increases, and increased use of foreign supplies) expected to result from the action and a discussion of reasonable alternatives and their effects. BOEM has prepared the required statement and has concluded, for the reason described below, that this action, which is a significant regulatory action under Executive Order 12866, may have a significant adverse effect on the supply, distribution, or use of energy. BOEM has prepared a Statement of Energy Effects for this final rule, which is available in section VIII of the RIA.
BOEM estimates that stronger supplemental financial assurance requirements will increase compliance costs for non-investment grade companies operating on the OCS by approximately $559 million annually (7 percent discounting). Pursuant to OMB's memorandum M-01-27, BOEM recognizes that this action may “adversely affect in a material way the productivity, competition, or prices in the energy sector.” By increasing industry compliance costs, the regulation could make the U.S. offshore oil and gas sector less attractive than regions with lower operating costs. Additionally, increased costs may depress the value of offshore assets or cause continuing production to become uneconomic sooner, leading to shorter-than-otherwise useful life and potentially a loss of production.
For additional discussion on the energy effects and regulatory alternatives, please see the RIA for this final rulemaking, available in the docket (Docket No. BOEM-2023-0027).
This action is subject to the CRA, and BOEM will submit a rule report to each chamber of Congress and to the Comptroller General of the United States. This action meets the criteria in 5 U.S.C. 804(2).
Administrative practice and procedure, Continental shelf, Government contracts, Investigations, Mineral resources, Oil and gas exploration, Oil pollution, Outer continental shelf, Penalties, Pipelines, Reporting and recordkeeping requirements, Rights-of-way, Sulfur.
Administrative practice and procedure, Continental shelf, Environmental protection, Government contracts, Intergovernmental relations, Oil and gas exploration, Outer continental shelf, Mineral resources, Reporting and recordkeeping requirements, Rights-of-way.
Administrative practice and procedure.
This action by the Deputy Assistant Secretary is taken herein pursuant to an existing delegation of authority.
For the reasons stated in the preamble, BOEM amends 30 CFR chapter V as follows:
30 U.S.C. 1751; 31 U.S.C. 9701; 43 U.S.C. 1334.
The Secretary of the Interior (Secretary) authorized the Bureau of Ocean Energy Management (BOEM) to regulate oil, gas, and sulfur exploration, development, and production operations on the Outer Continental Shelf (OCS). Under the Secretary's authority, the BOEM Director requires that all operations:
(a) This part contains the regulations of the BOEM Offshore program that
(b) * * *
BOEM may issue Notices to Lessees and Operators (NTLs) that clarify or provide more detail about certain regulatory requirements. NTLs may also outline what information you must provide, as required by regulation, in your various submissions to BOEM.
Terms used in this part will have the meanings given in the Act and as defined in this section:
(1) The laws of which are declared, under section 4(a)(2) of the Act, to be the law of the United States for the portion of the OCS on which such activity is, or is proposed to be, conducted;
(2) Which is, or is proposed to be, directly connected by transportation facilities to any artificial island or installation or other device permanently or temporarily attached to the seabed;
(3) Which is receiving, or according to the proposed activity, will receive oil for processing, refining, or transshipment that was extracted from the OCS and transported directly to such State by means of vessels or by a combination of means including vessels;
(4) Which is designated by the Secretary as a State in which there is a substantial probability of significant impact on or damage to the coastal, marine, or human environment, or a State in which there will be significant changes in the social, governmental, or economic infrastructure, resulting from the exploration, development, and production of oil and gas anywhere on the OCS; or
(5) In which the Secretary finds that because of such activity there is, or will be, a significant risk of serious damage, due to factors such as prevailing winds and currents to the marine or coastal environment in the event of any oil spill, blowout, or release of oil or gas from vessels, pipelines, or other transshipment facilities.
(1) Conduct to obtain data and information to ensure proper exploration or development of your lease or unit; and
(2) Can conduct without BOEM approval of an application or permit.
(1) Geophysical and geological (G&G) surveys using magnetic, gravity, seismic reflection, seismic refraction, gas sniffers, coring, or other systems to detect or imply the presence of oil, gas, or sulfur; and
(2) Any drilling conducted for the purpose of searching for commercial quantities of oil, gas, and sulfur, including the drilling of any additional well needed to delineate any reservoir to enable the lessee to decide whether to proceed with development and production.
(1) Drilling, logging, coring, testing, or producing operations have confirmed the absence of H2S in concentrations that could potentially result in atmospheric concentrations of 20 ppm or more of H2S; or
(2) Drilling in the surrounding areas and correlation of geological and seismic data with equivalent stratigraphic units have confirmed an absence of H2S throughout the area to be drilled.
(1) The boundaries of a single lease or unit, but are not owned and operated by a lessee or operator of that lease or unit;
(2) The boundaries of contiguous (not cornering) leases that do not have a common lessee or operator;
(3) The boundaries of contiguous (not cornering) leases that have a common lessee or operator but are not owned and operated by that common lessee or operator; or
(4) An unleased block(s).
(1) The physical waste of oil, gas, or sulfur;
(2) The inefficient, excessive, or improper use, or the unnecessary dissipation of reservoir energy;
(3) The locating, spacing, drilling, equipping, operating, or producing of any oil, gas, or sulfur well(s) in a manner that causes or tends to cause a reduction in the quantity of oil, gas, or sulfur ultimately recoverable under prudent and proper operations or that causes or tends to cause unnecessary or excessive surface loss or destruction of oil or gas; or
(4) The inefficient storage of oil.
The revisions read as follows:
(a) A RUE is required to construct, secure to the seafloor, use, modify, or maintain platforms, seafloor production equipment, artificial islands, facilities, installations, and/or other devices at an OCS site other than an OCS lease you own, that are:
(b) You must exercise the RUE according to the terms of the grant and the regulations in this part.
(c) You must meet the qualification requirements at §§ 556.400 through 556.402 of this subchapter and the applicable financial assurance requirements in this section and part 556, subpart I of this subchapter.
(d) If you apply for a RUE on a leased area, you must notify the lessee and give her/him an opportunity to comment on your application; and
(e) You must receive BOEM approval for all platforms, seafloor production equipment, artificial islands, facilities, installations, and/or other devices permanently or temporarily attached to the seabed.
(f) * * *
(1) You obtain a RUE after January 12, 2004; or
(2) You ask BOEM to modify your RUE to change the footprint of the associated platform, seafloor production equipment, artificial island, facility, installation, and/or device.
(a) Before BOEM grants you a RUE on the OCS, you must submit or maintain financial assurance of $500,000, which will guarantee compliance with the regulations and the terms and conditions of all RUEs you hold.
(1) You are not required to submit and maintain the financial assurance of $500,000 pursuant to this paragraph (a) if you furnish and maintain area-wide lease financial assurance in excess of $500,000 pursuant to § 556.901(a) of this subchapter, provided that the area-wide lease financial assurance also guarantees compliance with all the terms and conditions of all RUEs you hold in the area.
(2) The Regional Director may reduce the amount required in this paragraph (a) upon a determination that the reduced amount is sufficient to guarantee compliance with the regulations and the terms and conditions of all RUE grant(s) you hold.
(3) The requirements for financial assurance in §§ 556.900(d) through (g) 556.902 of this subchapter apply to the financial assurance required under paragraph (a) of this section.
(b) If BOEM grants you a RUE that serves either an OCS lease or a State lease, the Regional Director may require supplemental financial assurance above the amount required by paragraph (a) of this section, to ensure compliance with the obligations under your RUE grant, based on an evaluation of your ability to carry out present and future obligations on the RUE using the criteria set forth in § 556.901(d)(1) through (3) of this subchapter. This supplemental financial assurance must:
(1) Meet the requirements of §§ 556.900(d) through (g) and 556.902 of this subchapter; and
(2) Cover costs and liabilities for compliance with the obligations of your RUE grants and with applicable BOEM and Bureau of Safety and Environmental Enforcement (BSEE) orders.
(c) If you fail to replace any deficient financial assurance upon demand or fail to provide supplemental financial assurance upon demand, the Regional Director may:
(1) Assess penalties under subpart N of this part;
(2) Request BSEE to suspend operations on your RUE; and/or
(3) Initiate action for cancellation of your RUE grant.
(a) To obtain a RUE or request an assignment of an interest in a RUE, the applicant or assignee must file an application and provide the information contained in § 550.161 if a change in uses is planned and must obtain BOEM's approval.
(b) An application for approval of an assignment of an interest in a RUE, in whole or in part, must be filed in triplicate with the Regional Director. Such application must be supported by a statement that the assignee agrees to comply with and to be bound by the terms and conditions of the RUE grant. The assignee must satisfy the bonding requirements in § 550.166. No RUE assignment will be recognized unless and until it is first approved, in writing, by the Regional Director. The assignee of an interest in a RUE must pay the same service fee as that listed in § 550.106(a)(1) for a lease record title assignment request.
(c) BOEM may disapprove an assignment in the following circumstances:
(1) When the assignee has unsatisfied obligations under the regulations in this chapter or in chapters II or XII of this title, or under any applicable BOEM or BSEE order;
(2) When an assignment is not acceptable as to form or content (
(3) When the assignment does not comply with or would conflict with this part, or any other applicable laws or regulations (
(4) When the assignee does not meet the applicable financial assurance requirements in § 550.166 and part 556, subpart I of this subchapter, or has not complied with a BOEM or BSEE order.
(b) Respondents are OCS oil, gas, and sulfur lessees and operators. The requirement to respond to the information collections in this part is mandated under the Act (43 U.S.C. 1331
(a) Except as provided in paragraph (b) of this section, when you apply for, attempt to assign, or are the holder of a pipeline right-of-way (ROW) grant, you must furnish and maintain $300,000 of area-wide financial assurance that guarantees compliance with the regulations and the terms and conditions of all the pipeline ROW grants you hold in an OCS area as defined in § 556.900(b) of this subchapter. The requirement to furnish and maintain area-wide financial assurance for a pipeline ROW grant is separate and distinct from the requirement to provide financial assurance for a lease or right-of-use and easement (RUE).
(b) The requirement to furnish and maintain area-wide pipeline ROW financial assurance under paragraph (a) of this section may be satisfied if your operator or a co-grant holder provides such financial assurance in the required amount that guarantees compliance with the regulations and the terms and conditions of the grant.
(c) The requirements for lease financial assurance in §§ 556.900(d) through (g) and 556.902 of this subchapter apply to the area-wide financial assurance required in paragraph (a) of this section.
(d) The Regional Director, using the criteria set forth in § 556.901(d)(1) through (3) of this subchapter, will evaluate your financial ability to carry out present and future obligations, and as a result, may require supplemental financial assurance (
(e) The supplemental financial assurance required under paragraph (d) of this section must:
(1) Meet the requirements of §§ 556.900(d) through (g) and 556.902 of this subchapter, and
(2) Cover costs and liabilities for compliance with the obligations of your ROW grants and with applicable BOEM and BSEE orders.
(f) If you fail to replace any deficient financial assurance upon demand or fail to provide supplemental financial assurance upon demand, the Regional Director may:
(1) Assess penalties under subpart N of this part;
(2) Request BSEE to suspend operations on your pipeline ROW; and/or
(3) Initiate action for forfeiture of your pipeline ROW grant in accordance with § 250.1013 of this title.
31 U.S.C. 9701; 42 U.S.C. 6213; 43 U.S.C. 1334.
(a) * * *
(4) Send comments regarding any aspect of the collection of information under this part, including suggestions for reducing the burden, by mail to the Information Collection Clearance Officer, Bureau of Ocean Energy Management, 45600 Woodland Road, Sterling, VA 20166.
The revision read as follows:
(b) As used in this part, each of the terms and phrases listed below has the meaning given in the Act or as defined in this section.
(i) The laws of which are declared, pursuant to section 4(a)(2) of OCSLA (43 U.S.C. 1333(a)(2)), to be the law of the United States for the portion of the OCS on which such activity is, or is proposed to be, conducted;
(ii) Which is, or is proposed to be, directly connected by transportation facilities to any artificial island or structure referred to in section 4(a)(1) of OCSLA (43 U.S.C. 1333(a)(1));
(iii) Which is receiving, or in accordance with the proposed activity
(iv) Which is designated by the Secretary as a State in which there is a substantial probability of significant impact on or damage to the coastal, marine, or human environment; or a State in which there will be significant changes in the social, governmental, or economic infrastructure resulting from the exploration, development, and production of oil and gas anywhere on the OCS; or
(v) In which the Secretary finds that because of such activity, there is, or will be, a significant risk of serious damage, due to factors such as prevailing winds and currents, to the marine or coastal environment in the event of any oil spill, blowout, or release of oil or gas from one or more vessels, pipelines, or other transshipment facilities.
(i) For purposes of computing production and reporting of natural gas, 5,626 cubic feet of natural gas at 14.73 pounds per square inch equals one barrel.
(ii) For purposes of computing production and reporting of natural gas liquids, 1.454 barrels of natural gas liquids at 60 °F equals one barrel of crude oil.
(i) Condensate—natural gas liquids recovered from gas well gas (associated and non-associated) in separators or field facilities; or
(ii) Gas plant products—natural gas liquids recovered from natural gas in gas processing plants and from field facilities. Gas plant products include the following, as classified according to the standards of the Natural Gas Processors Association (NGPA) or the American Society for Testing and Materials (ASTM):
(A) Ethane—C2H6;
(B) Propane—C3H8;
(C) Butane—C4H10, including all products covered by NGPA specifications for commercial butane, including isobutane, normal butane, and other butanes—all butanes not included as isobutane or normal butane;
(D) Butane-Propane Mixtures—All products covered by NGPA specifications for butane-propane mixtures;
(E) Natural Gasoline—A mixture of hydrocarbons extracted from natural gas, that meets vapor pressure, end point, and other specifications for natural gasoline set by NGPA;
(F) Plant Condensate—A natural gas plant product recovered and separated as a liquid at gas inlet separators or scrubbers in processing plants or field facilities; and
(G) Other Natural Gas plant products meeting refined product standards (
(i) With respect to crude oil—having either an economic interest in or a power of disposition over the production of crude oil;
(ii) With respect to natural gas—having either an economic interest in or a power of disposition over the production of natural gas; and
(iii) With respect to natural gas liquids—having either an economic interest in or a power of disposition over any natural gas liquids at the time of completion of the liquefaction process.
(i) From May 1 through October 31; or
(ii) from November 1 through April 30.
(i) The average daily production in barrels of crude oil, natural gas, and natural gas liquids which it owned worldwide;
(ii) The average daily production in barrels of crude oil, natural gas, and natural gas liquids owned worldwide by every subsidiary of the reporting person;
(iii) The average daily production in barrels of crude oil, natural gas, and natural gas liquids owned worldwide by any person or persons of which the reporting person is a subsidiary; and
(iv) The average daily production in barrels of crude oil, natural gas, and natural gas liquids owned worldwide by any subsidiary, other than the reporting person, of any person or persons of which the reporting person is a subsidiary.
(a) The financial assurance requirements of subpart I of this part apply separately to each segregated lease.
(a) BOEM may disapprove an assignment or sublease of all or part of your lease interest(s):
(1) When the transferor, transferee, or sublessee is not in compliance with all applicable regulations and orders, including financial assurance requirements;
(2) When a transferor attempts a transfer that is not acceptable as to form or content (
BOEM may disapprove a transfer of all or part of your operating rights interest:
(a) When the transferor or transferee is not in compliance with all applicable regulations and orders, including financial assurance requirements;
(b) When a transferor attempts a transfer that is not acceptable as to form or content (
The revisions and addition read as follows:
This section establishes financial assurance requirements for the lessee of an OCS oil and gas or sulfur lease.
(a) Before BOEM will issue a new lease to you as the lessee, you or another lessee for the lease must comply with one of the options in paragraphs (a)(1) through (3) of this section. Before BOEM will approve the assignment of a record title interest in an existing lease to you as the lessee, you or another lessee for the lease must provide any supplemental financial assurance required by the Regional Director and also comply with one of the options in paragraphs (a)(1) through (3).
(g) You may provide alternative types of financial assurance instead of providing a surety bond if the Regional Director determines that the alternative financial assurance protects the interests of the United States to the same extent as a surety bond.
(h) If you fail to replace deficient financial assurance or to provide supplemental financial assurance upon demand, the Regional Director may:
(1) Assess penalties under part 550, subpart N of this subchapter;
(2) Request BSEE to suspend production and other operations on your lease in accordance with § 250.173 of this title; and/or
(3) Initiate action to cancel your lease.
(i) In the event you amend your area-wide surety bond covering lease obligations, or obtain a new area-wide lease surety bond, to cover the financial
The revisions and additions read as follows:
(a) You must provide the following financial assurance before commencing any lease exploration activities.
(1) * * *
(i) You must furnish the Regional Director $200,000 in lease exploration financial assurance that guarantees compliance with all the terms and conditions of the lease by the earliest of:
(b) This paragraph (b) explains what financial assurance you must provide before lease development and production activities commence.
(1) * * *
(i) You must furnish the Regional Director $500,000 in lease development financial assurance that guarantees compliance with all the terms and conditions of the lease by the earliest of:
(c) If you can demonstrate to the satisfaction of the Regional Director that you can satisfy your decommissioning and other lease obligations for less than the amount of financial assurance required under paragraph (a)(1) or (b)(1) of this section, the Regional Director may accept financial assurance in an amount less than the prescribed amount but not less than the amount of the cost for decommissioning.
(d) The Regional Director may determine that supplemental financial assurance (
(1) You have an investment grade credit rating. If any nationally recognized statistical rating organization, as that term is defined in section 3(a)(62) of the Securities Exchange Act of 1934, provides a credit rating for you that differs from that of any other nationally recognized statistical rating organization, BOEM will apply the highest rating for purposes of determining your financial assurance requirements.
(2) You have a proxy credit rating determined by the Regional Director that they determine reflects creditworthiness equivalent to an investment grade credit rating, which must be based on audited financial information for the most recent fiscal year (which must include an income statement, balance sheet, statement of cash flows, and the auditor's certificate).
(i) The audited financial information for your most recent fiscal year must cover a continuous twelve-month period within the twenty-four-month period prior to your receipt of the Regional Director's determination that you must provide supplemental financial assurance.
(ii) In determining your proxy credit rating, the Regional Director may include the total value of the offshore decommissioning liabilities associated with any lease(s) or grants in which you have an ownership interest. Upon the request of the Regional Director, you must provide the information that the Regional Director determines is necessary to properly evaluate the total value of your offshore decommissioning liabilities, including joint ownership interests and liabilities associated with your OCS leases and grants.
(3) Your co-lessee or co-grant holder has an issuer credit rating or proxy credit rating that meets the criterion set forth in paragraph (d)(1) or (2) of this section, as applicable. However, the presence of such co-lessee or co-grant holder will allow the Regional Director to not require financial assurance from you only to the extent that you and that co-lessee or co-grant holder share accrued liabilities, and the Regional Director may require you to provide supplemental financial assurance for decommissioning obligations for which such co-lessee or co-grant holder is not liable.
(4) There are proved oil and gas reserves on the lease, unit, or field, as defined by the SEC Regulation S-X at 17 CFR 210.4-10 and SEC Regulation S-K at 17 CFR 229.1200, the discounted value of which exceeds three times the estimated undiscounted cost of the decommissioning associated with the production of those reserves, and that value must be based on proved reserve reports submitted to the Regional Director and reported on a per-lease, unit, or field basis. BOEM will determine the decommissioning costs associated with the production of your reserves, and will use the following undiscounted decommissioning cost estimates:
(i) Where BSEE-generated probabilistic estimates are available, BOEM will use the estimate at the level at which there is a 70 percent probability that the actual cost of decommissioning will be less than the estimate (P70).
(ii) If there is no BSEE probabilistic estimate available, BOEM will use the BSEE-generated deterministic estimate.
(e) You may satisfy the Regional Director's demand for supplemental financial assurance by increasing the amount of your existing financial assurance or providing additional surety bonds or other types of acceptable financial assurance.
(f) The Regional Director will use the BSEE P70 decommissioning probabilistic estimate to determine the amount of supplemental financial assurance required to guarantee compliance when there is no lessee or co-lessee that meets the criterion in paragraph (d)(1) or (2) of this section. In making this determination, the Regional Director will also consider your potential underpayment of royalty and cumulative decommissioning obligations. Note that BOEM will use these P-values only in the context of determining how much financial assurance is required, and not in the context of bond forfeiture. Regardless of whether you are required to provide supplemental financial assurance at the P70 level, you remain liable for the full costs of decommissioning, and your surety remains liable for the full amount of decommissioning up to the limit of assurance provided.
(g) If your cumulative potential obligations and liabilities either increase or decrease, the Regional Director may adjust the amount of supplemental financial assurance required.
(1) If the Regional Director proposes an adjustment, the Regional Director will:
(i) Notify you and your financial assurance provider of any proposed adjustment to the amount of financial assurance required; and
(ii) Give you an opportunity to submit written or oral comment on the adjustment.
(2) If you request a reduction of the amount of supplemental financial assurance required, or oppose the amount of a proposed adjustment, you
(h) During the first 3 years from June 24, 2024, you may, upon receipt of a demand letter for supplemental financial assurance under this section, request that the Regional Director allow you to provide, in three equal installments payable according to the schedule provided under this paragraph (h), the full amount of supplemental financial assurance required.
(1) If the Regional Director allows you to provide the amount required on such a phased basis, you must comply with the following:
(i) You must provide the initial one-third of the total supplemental financial assurance required within the timeframe specified in the demand letter or, if no timeframe is specified, within 60 calendar days of the date of receipt of the demand letter.
(ii) You must provide the second one-third of the required supplemental financial assurance to BOEM within 24 months of the date of receipt of the demand letter.
(iii) You must provide the final one-third of the required supplemental financial assurance to BOEM within 36 months of the date of receipt of the demand letter.
(2) If the Regional Director allows you to meet your supplemental financial assurance requirement in a phased manner, as set forth in this section, and you fail to timely provide the required supplemental financial assurance to BOEM, the Regional Director will notify you of such failure. You will no longer be eligible to meet your supplemental financial assurance requirement in the manner prescribed in this paragraph (h), and the remaining amount due will become due 10 calendar days after such notification is received.
(a) Any surety bond or other financial assurance that you, as record title owner, operating rights owner, grant holder, or operator, provide under this part, or under part 550 of this subchapter, must:
(1) Be payable upon demand to the Regional Director;
(2) Guarantee compliance with all your obligations under the lease or grant, the regulations in chapters II and XII of this title, and all BOEM and BSEE orders; and
(3) Except as stated in § 556.905(b), guarantee compliance with the obligations of all record title owners, operating rights owners, and operators on the lease, and all grant-holders on a grant.
(e) * * *
(2) A pledge of Treasury securities, as provided in § 556.900(f);
(g) If you believe that BOEM's supplemental financial assurance demand is unjustified, you may request an informal resolution of your dispute in accordance with the requirements of § 590.6 of this chapter. Your request for an informal resolution will not affect your right to request to meet your supplemental financial assurance requirement in a phased manner under § 556.901(h).
(h) You may file an appeal of a supplemental financial assurance demand with the Interior Board of Land Appeals (IBLA) pursuant to the regulations in part 590 of this chapter. However, if you request that the IBLA stay the demand pending a final ruling on your appeal, you must post an appeal surety bond equal to the amount of the demand that you seek to stay before any such stay is effective.
(a) If your surety, guarantor, or the financial institution holding or providing your financial assurance becomes bankrupt or insolvent, or has its charter or license suspended or revoked, any financial assurance coverage from such surety, guarantor, or financial institution must be replaced. You must notify the Regional Director within 72 hours of learning of such event, and, within 30 calendar days of learning of such event, you must provide other financial assurance from a different financial assurance provider in the amount required under §§ 556.900 and 556.901, or § 550.166 of this subchapter, or § 550.1011 of this subchapter.
(b) You must notify the Regional Director within 72 hours of learning of any action filed alleging that you are insolvent or bankrupt or that your surety, guarantor, or financial institution is insolvent or bankrupt or has had its charter or license suspended or revoked.
All surety bonds or other financial assurance instruments must require the surety, guarantor, or financial institution to timely provide this required notification both to you and directly to BOEM.
(a) The Regional Director may authorize you to establish a decommissioning account(s) in a federally insured financial institution to satisfy a supplemental financial assurance demand made pursuant to § 556.901(d), § 550.166(b) of this subchapter, or § 550.1011(d) of this subchapter. The decommissioning account must be set up in such a manner that funds may not be withdrawn without the written approval of the Regional Director.
(1) Funds in the account must be used only to meet your decommissioning obligations and must be payable upon demand to BOEM.
(2) You must fully fund the account to cover all decommissioning costs as estimated by BSEE, to the amount, and pursuant to the schedule, that the Regional Director prescribes.
(3) If you fail to make the initial payment or any scheduled payment into the decommissioning account and you fail to correct a missed payment within 30 days, you must immediately submit, and subsequently maintain, a surety bond or other financial assurance in an amount equal to the remaining unfulfilled portion of the supplemental financial assurance demand.
(b) Any interest paid on funds in a decommissioning account will become part of the principal funds in the account unless the Regional Director authorizes in writing the payment of the interest to the party who deposits the funds.
(c) The Regional Director may authorize or require you to create an overriding royalty, production payment obligation, or other revenue stream for the benefit of an account established as financial assurance for the decommissioning of your lease(s) or RUE or pipeline ROW grant(s). The obligation may be associated with oil and gas or sulfur production from a lease other than a lease or grant secured through the decommissioning account.
(d) BOEM may provide funds from the decommissioning account to the party that performs the decommissioning in response to a BOEM or BSEE order to perform such decommissioning or to cover the costs thereof. BOEM will
(a) The Regional Director may accept a third-party guarantee to satisfy a supplemental financial assurance demand made pursuant to § 556.901(d), § 550.166(b) of this subchapter, or § 550.1011(d) of this subchapter, if:
(1) The guarantor meets the credit rating or proxy credit rating criterion set forth in § 556.901(d)(1) or (2), as applicable; and
(2) The guarantor or guaranteed party submits a third-party guarantee agreement containing each of the provisions in paragraph (d) of this section.
(b) Notwithstanding § 556.902(a)(3), a third-party guarantor may, as agreed to by BOEM at the time the third-party guarantee is provided, limit its cumulative obligations to a fixed dollar amount or limit its obligations so as to cover the performance of one or more specific lease obligations (with no fixed dollar amount).
(c) If, during the life of your third-party guarantee, your guarantor no longer meets the criterion referred to in paragraph (a)(1) of this section, you must, within 72 hours of so learning:
(1) Notify the Regional Director; and
(2) Submit, and subsequently maintain, a surety bond or other financial assurance covering those obligations previously secured by the third-party guarantee.
(d) Your third-party guarantee must contain each of the following provisions:
(1) If you fail to comply with the terms of any lease or grant covered by the guarantee, or any applicable regulation, your guarantor must either:
(i) Take corrective action to bring the lease or grant into compliance with its terms or any applicable regulation, to the extent covered by the guarantee; or
(ii) Be liable under the third-party guarantee agreement to provide, within 7 calendar days, sufficient funds for the Regional Director to complete such corrective action to the extent covered by the guarantee. Such payment does not result in the cancellation of the guarantee, but instead reduces the remaining value of the guarantee in an amount equal to the payment.
(2) If your guarantor wishes to terminate the period of liability under its guarantee, it must:
(i) Notify you and the Regional Director at least 90 calendar days before the proposed termination date;
(ii) Obtain the Regional Director's approval for the termination of the period of liability for all or a specified portion of the guarantee; and
(iii) Remain liable for all liabilities that accrued or began accruing prior to the termination and responsible for all work and workmanship performed during the period of liability.
(3) Before the termination of the period of liability of the third-party guarantee, you must provide acceptable replacement financial assurance.
(e) If you or your guarantor request BOEM to cancel your third-party guarantee, BOEM will cancel the guarantee under the same terms and conditions provided for cancellation of supplemental financial assurance and return of pledged financial assurance in § 556.906(b) and/or (d)(3).
(f) The guarantor or guaranteed party must submit a third-party guarantee agreement that meets the following criteria:
(1) The third-party guarantee agreement must be executed by your guarantor and all persons and parties bound by the agreement.
(2) The third-party guarantee agreement must bind, jointly and severally, each person and party executing the agreement.
(3) When your guarantor is a corporate entity, two corporate officers who are authorized to bind the corporation must sign the third-party guarantee agreement.
(g) Your corporate guarantor and any other corporate entities bound by the third-party guarantee agreement must provide the Regional Director copies of:
(1) The authorization of the signatory corporate officials to bind their respective corporations;
(2) An affidavit certifying that the agreement is valid under all applicable laws; and
(3) Each corporation's corporate authorization to enter into the third-party guarantee agreement.
(h) If your third-party guarantor or another party bound by the third-party guarantee agreement is a partnership, joint venture, or syndicate, the third-party guarantee agreement must:
(1) Bind each partner or party who has a beneficial interest in your guarantor; and
(2) Provide that each member of the partnership, joint venture, or syndicate is jointly and severally liable for the obligations secured by the guarantee.
(i) The third-party guarantee agreement must provide that, in the event forfeiture is called for under § 556.907, your guarantor will either:
(1) Take corrective action to bring your lease or grant into compliance with its terms, and the regulations, to the extent covered by the guarantee; or
(2) Provide sufficient funds within 7 calendar days to permit the Regional Director to complete such corrective action to the extent covered by the guarantee.
(j) The third-party guarantee agreement must contain a confession of judgment. It must provide that, if the Regional Director determines that you are in default of the lease or grant covered by the guarantee or not in compliance with any regulation applicable to such lease or grant, the guarantor:
(1) Will not challenge the determination; and
(2) Will remedy the default to the extent covered by the guarantee.
(k) Each third-party guarantee agreement is deemed to contain all terms and conditions contained in paragraphs (d), (i), and (j) of this section, even if the guarantor has omitted these terms from the third-party guarantee agreement.
This section defines the terms and conditions under which BOEM will terminate the period of liability of, or cancel, financial assurance. Terminating the period of liability ends the period during which obligations continue to accrue, but does not relieve the financial assurance provider of the responsibility for obligations that accrued during the period of liability. Canceling a financial assurance instrument relieves the financial assurance provider of all liability. The liabilities that accrue during a period of liability include obligations that started to accrue prior to the beginning of the period of liability and had not been met, and obligations that begin accruing during the period of liability.
(a) When you or your financial assurance provider request termination:
(1) The Regional Director will terminate the period of liability under your financial assurance within 90 calendar days after BOEM receives the request; and
(2) If you intend to continue operations, or have not met all decommissioning obligations, within 90 calendar days after BOEM receives your termination request, you must provide replacement financial assurance of an equivalent amount.
(b) If you provide replacement financial assurance, the Regional Director will cancel your previous financial assurance and the previous financial assurance provider will not retain any liability, provided that:
(1) The amount of the new financial assurance is equal to or greater than that of the financial assurance that was cancelled, or you provide an alternative form of financial assurance, and the Regional Director determines that the alternative form of financial assurance provides a level of security equal to or greater than that provided by the financial assurance that is proposed to be cancelled;
(2) For financial assurance submitted under § 556.900(a), § 556.901(a) or (b), § 550.166(a) of this subchapter, or § 550.1011(a) of this subchapter, the new financial assurance provider agrees to assume all outstanding obligations that accrued during the period of liability that was terminated; and
(3) For supplemental financial assurance submitted under § 556.901(d), § 550.166(b) of this subchapter, or § 550.1011(d) of this subchapter, the new financial assurance provider agrees to assume that portion of the outstanding obligations that accrued during the period of liability that was terminated and that the Regional Director determines may exceed the coverage of the financial assurance submitted under § 556.900(a), § 556.901(a) or (b), § 550.166(a) of this subchapter, or § 550.1011(a) of this subchapter. The Regional Director will notify the provider of the new financial assurance of the amount required.
(c) This paragraph (c) applies if the period of liability is terminated, but the financial assurance is not replaced with financial assurance of an equivalent amount pursuant to paragraph (b) of this section. The financial assurance provider will continue to be responsible for obligations that accrued prior to the termination of the period of liability:
(1) Until the obligations are satisfied; and
(2) For additional periods of time in accordance with paragraph (d) of this section.
(d) BOEM will cancel the financial assurance for your lease or grant, and the Regional Director will return any pledged financial assurance, as shown in the following table:
(e) For all financial assurance, the Regional Director may reinstate your financial assurance as if no cancellation had occurred if:
(1) A person makes a payment under the lease, RUE grant, or pipeline ROW grant, and the payment is rescinded or must be returned by the recipient because the person making the payment is insolvent, bankrupt, subject to reorganization, or placed in receivership; or
(2) The responsible party represents to BOEM that it has discharged its obligations under the lease, RUE grant, or pipeline ROW grant and the representation was materially false when the financial assurance was cancelled.
This section explains how a bond or other financial assurance may be forfeited.
(a) The Regional Director will call for forfeiture of all or part of the bond, or other form of financial assurance, including a guarantee you provide under this part, if:
(1) You, or any party with the obligation to comply, refuse to comply with any term or condition of your
(2) You default on one of the conditions under which the Regional Director accepts your bond, third-party guarantee, and/or other form of financial assurance.
(b) The Regional Director may pursue forfeiture of your surety bond or other financial assurance without first making demands for performance against any other record title owner, operating rights owner, grant holder, or other person authorized to perform lease or grant obligations.
(c) The Regional Director will:
(1) Notify you, your surety, guarantor, or the financial institution holding or providing your financial assurance, of a determination to call for forfeiture of your financial assurance, whether it takes the form of a surety bond, guarantee, funds, or other type of financial assurance.
(i) This notice will be in writing and will provide the reason for the forfeiture and the amount to be forfeited.
(ii) The Regional Director will determine the amount to be forfeited based upon an estimate of the total cost of corrective action to bring your lease or grant into compliance, subject, in the case of a guarantee, to any limitation in the guarantee authorized by § 556.905(b).
(2) Advise you and your financial assurance provider that forfeiture may be avoided if, within five business days:
(i) You agree to and demonstrate that you will bring your lease or grant into compliance within the timeframe the Regional Director prescribes; or
(ii) The provider of your financial assurance agrees to and demonstrates that it will complete the corrective action to bring your lease or grant into compliance within the timeframe the Regional Director prescribes, even if the cost of compliance exceeds the amount of that financial assurance.
(d) If the Regional Director finds you are in default under paragraph (a)(1) or (2) of this section, the Regional Director may cause the forfeiture of any financial assurance provided to ensure your compliance with BOEM and BSEE orders, the terms and conditions of your lease or grant, and the regulations in this chapter and chapters II and XII of this title.
(e) If the Regional Director determines that your financial assurance is forfeited, the Regional Director will:
(1) Collect the forfeited amount; and
(2) Use the funds collected to bring your lease or grant into compliance and to correct any default.
(f) If the amount the Regional Director collects under your financial assurance is insufficient to pay the full cost of corrective action, the Regional Director may:
(1) Take or direct action to obtain full compliance with your lease or grant and the regulations in this chapter; and
(2) Recover from you, any other record title owner, operating rights owner, co-grant holder or, to the extent covered by the guarantee, any third-party guarantor responsible under this subpart, all costs in excess of the amount the Regional Director collects under your forfeited financial assurance.
(g) If the amount that the Regional Director collects under your forfeited financial assurance exceeds the costs of taking the corrective action required to bring your lease or grant into compliance with its terms and the regulations in this chapter, BOEM and BSEE orders, and chapters II and XII of this title, the Regional Director will return the excess funds to the party from whom they were collected.
(h) The Regional Director may pay the funds from the forfeited financial assurance to a co- or predecessor lessee or third party who is taking the corrective action required to obtain partial or full compliance with the regulations, BOEM or BSEE orders, and/or the terms of your lease or grant.
5 U.S.C. 301
The purpose of this subpart is to explain the procedures for appeals of Bureau of Ocean Energy Management (BOEM) decisions and orders.
If you are adversely affected by a BOEM official's final decision or order issued under chapter V of this title, you may appeal that decision or order to the Interior Board of Land Appeals (IBLA). Your appeal must conform with the procedures found in this subpart and 43 CFR part 4, subpart E. A request for reconsideration of a BOEM decision concerning a lease bid, authorized in § 556.517(b), § 581.21(a)(2), or § 585.118(c)(1) of this chapter, is not subject to the procedures found in this part.
You must file your appeal within 60 days after you receive BOEM's final decision or order. The 60-day time period applies rather than the time period provided in 43 CFR 4.411(a). A decision or order is received on the date you sign a receipt confirming delivery or, if there is no receipt, the date otherwise documented.
(a) A written Notice of Appeal, together with a copy of the decision or order you are appealing, in the office of the BOEM officer that issued the decision or order. You cannot extend the 60-day period for that office to receive your Notice of Appeal; and
(c) You may file an appeal of a BOEM supplemental financial assurance demand with the IBLA. However, if you request that the IBLA stay the demand pending a final ruling on your appeal, you must post an appeal surety bond equal to the amount of the demand that you seek to stay before any such stay is effective.
(a) * * *
(1) BOEM notifies you that the decision or order, or some portion of it, is suspended during this period because there is no likelihood of immediate and irreparable harm to human life, the environment, any mineral deposit, or property; or
(b) This section applies rather than 43 CFR 4.21(a) for appeals of BOEM orders.
(a) If you receive a decision or order issued under this chapter, you must appeal that decision or order to the IBLA under 43 CFR part 4, subpart E, to exhaust administrative remedies.