[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Proposed Rules]
[Pages 91890-91894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30192]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 35

[EPA-HQ-OW-2016-0568; FRL 9953-23-OW]
RIN 2040-AF64


Fees for Water Infrastructure Project Applications Under WIFIA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to establish fees related to the provision of 
federal credit assistance under Subtitle C of the Water Resources 
Reform and Development Act of 2014 (WRRDA), which is referred to as the 
Water Infrastructure Finance and Innovation Act of 2014 (WIFIA). WIFIA 
authorizes EPA to provide secured (direct) loans and loan guarantees to 
eligible water infrastructure projects and to charge fees to recover 
all or a portion of the Agency's cost of providing credit assistance 
and the costs of retaining expert firms, including financial, 
engineering, and legal advisory services, in the field of municipal and 
project finance to assist in the underwriting and servicing of Federal 
credit instruments. The agency seeks comment on all aspects of this 
proposal.

DATES: Comments must be received on or before February 17, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2016-0568, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Jordan Dorfman, Water Infrastructure 
Division, Office of Wastewater Management, Mail Code 4201C, 
Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 
Washington, DC, 20460; telephone number: (202)564-0614; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    This action only applies to entities seeking credit assistance 
under the WIFIA program for the development and construction of a water 
infrastructure project. EPA has published an interim final rule to 
implement this new credit assistance program in the ``Rules and 
Regulations'' section of this Federal Register. A list of eligible 
entities and eligible projects can be found in the Interim Final Rule 
entitled, ``Credit Assistance for Water Infrastructure Projects.'' This 
interim final rule is available at Docket ID No. EPA-HQ-OW-2016-0569, 
at http://www.regulations.gov.

B. What should I consider as I prepare my comments for EPA?

    Submitting Confidential Business Information (CBI). Do not submit 
this information to EPA through regulations.gov or email. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information in a disk, CD-ROM, or flash drive that you mail to EPA, 
mark the outside of the disk, CD-ROM, or flash drive as CBI and then 
identify electronically within the disk, CD-ROM, or flash drive the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the document by docket ID number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions. The Agency may ask you to respond to 
specific questions.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. What action is the Agency taking?

    EPA is proposing to establish fees associated with the provision of 
federal credit assistance under the WIFIA program. WIFIA authorizes EPA 
to provide secured (direct) loans and loan guarantees to eligible water 
infrastructure projects. EPA has published an Interim Final Rule 
entitled, ``Credit Assistance for Water Infrastructure Projects'' to 
establish procedures for the implementation of the WIFIA Program. As 
specified under 33 U.S.C. 3908(b)(7), 3909(b), and 3909(c)(3), Congress 
in WIFIA authorizes EPA to charge fees to recover all or a portion of 
the Agency's cost of providing credit assistance and the costs of 
retaining expert firms, including financial, engineering, and legal 
advisory services, in the field of municipal and project finance to 
assist in the underwriting and servicing of Federal credit instruments. 
EPA is proposing an application fee, credit processing fee, servicing 
fee, and fee for extraordinary expenses to cover these costs to the 
extent not covered by congressional appropriations.

B. What is the Agency's authority for taking this action?

    This proposed rule is issued under the authority of 33 U.S.C. 
3908(b)(7), 3909(b), 3909(c)(3), and 3911.

C. What fees are being proposed?

    In the Interim Final Rule entitled, ``Credit Assistance for Water 
Infrastructure Projects,'' EPA established an application process for 
WIFIA credit assistance that is divided into two steps. The first step 
requires the submission of a letter of interest. No fees are proposed 
for the letter of interest step. Projects selected to continue in the 
application process will then be invited to submit an application at 
which time the application fee must be paid. For this second step, EPA 
will

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only select those projects that it expects might reasonably proceed to 
closing. For more information on this process, please refer to the 
WIFIA Implementation Rule at 40 CFR part 35 subpart Q or in Docket ID 
No. EPA-HQ-OW-2016-0569, at http://www.regulations.gov. Consequently, 
EPA anticipates that the fees proposed in this notice would apply only 
to projects the Agency expects are likely to proceed to closing. 
Detailed application information will be contained in a program guide 
developed by EPA and will be posted on the WIFIA Web site and made 
available to the public at the time a solicitation for letters of 
interest is published. This two-step process limits the time, cost and 
effort required to be expended by prospective borrowers prior to having 
a reasonable expectation of funding by WIFIA.
    While this rule, and the interim final WIFIA Implementation Rule, 
have separate processes for comments, EPA is aware that the similar 
timelines for comment and the relationship between the two rules may 
cause confusion. Therefore, in the event that comments are received for 
this rule under the heading of the interim final rule, or vice versa, 
EPA will consider all comments and respond accordingly.
    As described in greater detail below, the types of fees EPA is 
proposing to establish are consistent with other Federal Credit 
programs. In particular, the WIFIA program was designed by Congress to 
resemble the Transportation Infrastructure Finance and Innovation Act 
program, commonly known as TIFIA. Accordingly, to the extent 
practicable, the WIFIA program has been crafted by EPA to be 
implemented in a similar manner as the Department of Transportation 
implements the TIFIA program. The rationale for establishing these fees 
is to cover EPA's costs of administering the program to the extent 
these costs are not covered by congressional appropriations. To 
effectively administer the program, EPA will incur both internal 
administrative costs (staffing, program support contracts, and other 
costs) as well as the costs of retaining expert firms, including legal, 
engineering, and financial advisory services, in the field of municipal 
and project finance, to assist in the underwriting of the Federal 
credit instrument. As explained in greater detail below, the latter 
costs may range from $350,000-$700,000 per project, though EPA cannot 
provide assurance that costs will not exceed this range. Assuming 10 
loans at an average of $100 million per loan, external expert costs 
alone could be in the range of $3.5 million to $7 million, and those 
costs could be higher if a larger number of loans (with a smaller 
average loan size) were made. The combination of EPA's internal 
administrative costs and these external expert costs would not be fully 
covered by the $2.2 million set aside for administrative costs in 
WIFIA. To the extent Congress does not appropriate funds to cover these 
program costs, EPA will need to exercise its authority under WIFIA to 
recover such costs through fees in order to effectively administer the 
program.
    In many lending contexts, such fees can be reimbursed as part of 
the principal of the loan. WIFIA, however, prohibits this by not 
including such fees as eligible project costs. However, other sources 
of financing can finance the fees. WIFIA assistance can only pay for up 
to 49% of eligible project costs. The remaining costs must be borne by 
the borrower, either internally or through another financing source. 
While fees cannot be used to calculate the amount eligible for WIFIA 
financing, the fees can still be reimbursed from other sources. While 
the ability to finance fees with a WIFIA loan could reduce the burden 
on applicants by allowing the reimbursement for these costs by the loan 
proceeds, EPA's reading of the statute is that this would require 
amendment to the WIFIA statute or specific authorizing language in an 
appropriations bill.
Application Fee
    EPA is proposing to require a non-refundable fee for each project 
that is invited to submit a full application (second step following 
submission of letter of interest) for credit assistance under WIFIA. 
EPA is proposing that an application fee will be due upon submission of 
the application. For fiscal year 2017, EPA is proposing an application 
fee of $25,000 for applications for projects serving small communities 
(population of not more than 25,000 people). For all other project 
applications, EPA is proposing an application fee of $100,000. As 
proposed, these application fees represent an amount equal to 0.5 
percent of the minimum threshold project cost ($5 million for small 
communities and $20 million for larger communities, 33 U.S.C. 
3907(a)(2)), which EPA considers to be sufficient for the Agency to 
begin the financial and legal analysis of the project while providing 
assurance that the applicant intends to proceed to closing, and 
therefore costs incurred by the Agency may be recovered. EPA will 
undertake significant costs to evaluate applications and hire expert 
firms for underwriting and considers an application fee essential for 
applicants to show good faith in applying for assistance, to help cover 
the agency's administrative costs in processing applications, and to 
ensure effective administration of the program. EPA proposes that these 
fees be required at the time of submission of the full application and 
that the full application will not be reviewed without fee payment. 
Because EPA will only invite projects to submit an application and 
application fee if the project is expected to proceed to closing, no 
applicant would pay a fee without a reasonable expectation that the 
project could receive funding.
    For fiscal years 2018 and beyond, the Agency may need to adjust the 
amount of the application fee based on early program implementation 
experience. A change in the application fee will not change the total 
fees charged, only the initial fee which is credited to the final fee 
at closing, or in the event that the project does not proceed to 
closing, withdrawal of the application, or denial. EPA seeks comment on 
proposed regulatory language that would authorize the Agency to change 
the default application fee in subsequent years through the NOFA. In 
addition, EPA seeks comment on whether changes to the application fee 
should be made through notice and comment or, alternatively, whether 
the agency should establish any criteria or constraints for adjustment 
of this fee through NOFAs and, if so, what those should be.
Credit Processing Fee
    EPA is also proposing to require a credit processing fee at the 
time of closing, or in the event that the project does not proceed to 
closing, e.g., if the application is withdrawn or denied, for projects 
selected to receive assistance in the form of a direct cash payment. 
The proceeds of any such fees would be used to pay the remaining 
portion of the Agency's cost of providing credit assistance and the 
costs of retaining expert firms, including legal, engineering, and 
financial advisory services, in the field of municipal and project 
finance to assist in the underwriting of the Federal credit instrument. 
EPA proposes that the initial application fee described above would be 
credited to the credit processing fee. For example, if the total credit 
processing fee is $400,000 and the applicant paid $100,000 with the 
application, $300,000 would be due at closing, or in the event that the 
project does not proceed to closing, e.g., if the application is 
withdrawn or denied. The fee for each project would be set based on the 
costs incurred by EPA for that

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specific project. Due to the nature of credit processing, the amount is 
expected to vary among applicants. This variation is a reflection of 
the amount of time taken to process a loan, which may not directly 
correlate with the size of the loan. More complicated transactions with 
lengthy negotiations will have higher costs. EPA estimates these costs 
could be in the range of approximately $350,000-$700,000 per project, 
broken down as follows:
     Financial advisor: $100,000 to $250,000 per project;
     Law firm: $200,000 to $350,000 per project; and
     Engineering firm: $50,000 to $100,000 per project.
    EPA is proposing to authorize the waiver of a portion of the fee 
charged to an applicant in the event that Congress appropriates 
resources adequate to pay for EPA's cost of administering the WIFIA 
program as well as additional funding to pay for loan processing. WIFIA 
currently provides that EPA may retain $2.2 million annually from funds 
appropriated to the program to pay for the administration of the 
program, including internal administrative costs of staffing, program 
support contracts (separate from the expert advisory services described 
previously), and other internal administrative needs. EPA requests 
comment on including a provision in the final rule allowing EPA to 
waive fees.
    To the extent Congress appropriates administrative funds in excess 
of those needed for EPA's internal administrative costs, EPA is 
proposing to authorize the use of the remaining available 
administrative allowance (less any amount needed for future years' 
administration) to reduce fees. EPA is proposing three alternative 
methods by which the Agency could allocate additional administrative 
funds to reduce fees:
     By reducing fees by an equal amount per loan in the 
relevant year;
     By reducing fees by an equal amount per loan for those 
projects serving a population of not more than 25,000; or
     By reducing fees by an equal amount per loan for those 
projects that serve a population with a median household income that is 
80 percent or less of the state median household income.
    Alternatively, EPA could allocate such fee reductions through a 
combination of these three methods. EPA requests comment on each of 
these potential options or other potential approaches not discussed 
here. In the final rule, the Agency would expect to include regulatory 
text addressing criteria for allocating fee reductions.
Servicing Fee
    EPA is also proposing to charge an annual servicing fee during 
repayment of the loan. The fee will be dependent on the costs of 
servicing the credit instrument as determined by the Administrator. EPA 
proposes that such fees would be set at a level to enable the Agency to 
recover all or a portion of the costs to the Federal Government of 
servicing WIFIA credit instruments and will be determined at the time 
of closing. EPA expects such fees to range from $12,000 to $15,000 
annually per loan.
Extraordinary Expenses
    EPA is also proposing a fee to cover extraordinary expenses. In the 
event that a borrower experiences difficulty relating to technical, 
financial, or legal matters or other events (e.g., engineering failure 
or financial workouts) which require EPA to incur time or expenses 
beyond standard monitoring, EPA will be entitled to payment in full 
from the borrower of additional fees in an amount determined by EPA and 
of related fees and expenses of its independent consultants and outside 
counsel, to the extent that such fees and expenses are incurred 
directly by EPA and to the extent such third parties are not paid 
directly by the borrower.
Optional Supplemental Fee
    EPA is also proposing to allow a separate fee to be charged, with 
agreement of the applicant, to reduce the budget authority required to 
fund the credit instrument. Although EPA considers it unlikely that a 
scenario will arise under which it would assess such a fee, the Agency 
sees benefit in establishing the flexibility to allow an applicant to 
``buy down'' the budget authority required for the credit instrument. 
This could allow an applicant to proceed to closing in the event that 
sufficient budget authority would not otherwise be available. EPA 
proposes that any such fee would only be charged upon agreement by an 
applicant.
Request for Comment
    EPA requests comment on each of the proposed fees described above, 
including whether to establish such fees, proposed fee levels or 
approaches for calculating fees, and potential criteria and 
methodologies for waiving all or a portion of such fees in the event 
that Congress appropriates sufficient funds to permit such a waiver. In 
particular, EPA requests comments on prospective borrowers' ability to 
pay these fees, the use of an upfront application fee, and options for 
applicants to finance fees. EPA also requests comment on the proposed 
reduced application fee for small communities and the extent to which 
this fee reduction is adequate to ensure small communities can 
effectively access the WIFIA program. EPA understands that payment of 
fees may be difficult for some applicants and requests comment on 
potential approaches that could address such concerns while allowing 
EPA to recover its costs to ensure effective and sustainable 
administration of the WIFIA program.

III. Statutory and Executive Orders Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. This rule has 
been determined significant because it affects the rights and 
obligations of recipients of a loan program and raises novel legal or 
policy issues arising out of a legal mandate. Any changes made in 
response to OMB recommendations have been documented in the docket.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the PRA because this proposal would merely establish fees associated 
with a previously promulgated rule.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB 
approves this ICR, the Agency will announce that approval in the 
Federal Register and publish a technical amendment to 40 CFR part 9 to 
display the OMB control number for the approved information collection 
activities contained in this final rule.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a

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substantial number of small entities if the rule relieves regulatory 
burden, has no net burden or otherwise has a positive economic effect 
on the small entities subject to the rule. Participation in the WIFIA 
loan program is voluntary. While many projects serving small 
communities are potentially eligible for WIFIA loans, we anticipate 
only one to two small community applications per year as small 
communities have access to below market rate loans and other subsidies 
through the Clean Water State Revolving Fund, the Drinking Water State 
Revolving Fund, and other funding sources. A small community will only 
apply and undertake a WIFIA loan in cases where the WIFIA loan provides 
positive economic benefits relative to other potential funding sources, 
based upon consideration of relevant economic factors, including loan 
rate, loan terms, fees and other transaction costs. We have therefore 
concluded that this action will have no net regulatory burden for all 
directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local, or tribal governments or the 
private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. While a tribal government, or a consortium of 
tribal governments may apply for WIFIA credit assistance, this action 
does not have substantial direct effects on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because environmental health or safety risks are not addressed by this 
action.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. This rulemaking simply imposes fees 
required to apply for credit assistance; therefore, by itself, this 
rulemaking will not have any effect on the supply, distribution or use 
of energy.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action is not subject to Executive Order 12898 (59 FR 7629, 
February 16, 1994) because it does not establish an environmental 
health or safety standard.

K. National Environmental Policy Act

    Each project obtaining assistance under this program is required to 
adhere to the National Environmental Policy Act of 1969, as amended (42 
U.S.C. 4321 et seq.). This rulemaking simply imposes fees required to 
apply for credit assistance; therefore, by itself, this rulemaking will 
not have any effect on the quality of the environment.

List of Subjects in 40 CFR Part 35

    Environmental protection, Reporting and recordkeeping requirements, 
and Water finance.

    Dated: December 6, 2016.
Gina McCarthy,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR part 35 as follows:

PART 35--STATE AND LOCAL ASSISTANCE

0
1. The authority citation for part 35 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.; 33 U.S.C. 1251 et seq.; 42 
U.S.C. 300f et seq.; 42 U.S.C. 6901 et seq.; 7 U.S.C. 136 et seq.; 
15 U.S.C. 2601 et seq.; 42 U.S.C. 13101 et seq.; Pub. L. 104-134, 
110 Stat. 1321, 1321-299 (1996); Pub. L. 105-65, 111 Stat. 1344, 
1373 (1997), 2 CFR 200.

0
2. Add Sec.  35.10080 to read as follows:


Sec.  35.10080   Fees.

    (a) Application fee. EPA will require a non-refundable application 
fee for each project applying for credit assistance under the WIFIA 
program. An application fee will be due upon submission of the complete 
application. For applications for projects serving small communities 
(population of not more than 25,000 people), this application fee will 
be $25,000. For all other applications, this application fee will be 
$100,000. The initial application fee will be credited to the credit 
processing fee required under subsection (c).
    (b) Adjustment of application fee. For each application and 
approval cycle, EPA may adjust the amount of the application fee 
described in subsection (a) based on program implementation experience 
and cost expectations. EPA will publish this amount in each Federal 
Register solicitation for letters of interest.
    (c) Credit processing fee. Except as otherwise provided in 
subsection (f), EPA will require an additional credit processing fee 
for projects selected to receive WIFIA assistance upon closing, or in 
the event that the project does not proceed to closing, e.g., if the 
application is withdrawn or denied. The proceeds of any such fees will 
be used to pay the remaining portion of the Agency's cost of providing 
credit assistance and the costs of retaining expert firms, including 
financial, engineering, and legal advisory services, in the field of 
municipal and project finance, to assist in the underwriting of the 
Federal credit instrument. All of, or a portion of, this fee may be 
waived.
    (d) Servicing fee. EPA will require borrowers to pay a servicing 
fee for each credit instrument approved for funding. Separate fees may 
apply for each type of credit instrument (e.g., a loan guarantee, a 
secured loan with a single disbursement, or a secured loan with 
multiple disbursements), depending on the costs of servicing the credit 
instrument as determined by the Administrator. Such fees will be set at 
a level sufficient to enable the EPA to recover all or a portion of the 
costs to the Federal Government of servicing WIFIA credit instruments.
    (e) Optional supplemental fee. If, in any given year, there is 
insufficient budget authority to fund the credit instrument for a 
qualified project that has been selected to receive assistance

[[Page 91894]]

under WIFIA, EPA and the approved applicant may agree upon a 
supplemental fee to be paid by or on behalf of the approved applicant 
at the time of execution of the term sheet to reduce the subsidy cost 
of that project. No such fee may be included among eligible project 
costs.
    (f) Reduced fees. To the extent that Congress appropriates funds in 
any given year beyond those sufficient to cover internal administrative 
costs, EPA may utilize such appropriated funds to reduce fees that 
would otherwise be charged under subsection (c).
    (g) Extraordinary expenses. EPA may require payment in full by the 
borrower of additional fees, in an amount determined by EPA, and of 
related fees and expenses of its independent consultants and outside 
counsel, to the extent that such fees and expenses are incurred 
directly by EPA and to the extent such third parties are not paid 
directly by the borrower, in the event that a borrower experiences 
difficulty relating to technical, financial, or legal matters or other 
events (e.g., engineering failure or financial workouts) which require 
EPA to incur time or expenses beyond standard monitoring.

[FR Doc. 2016-30192 Filed 12-16-16; 8:45 am]
 BILLING CODE 6560-50-P