Agricultural Marketing Service
Food and Nutrition Service
Food Safety and Inspection Service
Forest Service
Census Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Engineers Corps
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Fish and Wildlife Service
Geological Survey
Indian Affairs Bureau
Land Management Bureau
National Park Service
Federal Aviation Administration
Federal Transit Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Office of the Secretary, Agriculture (USDA).
Notification of funding availability (NOFA).
CFAP helps agricultural producers impacted by the effects of the COVID-19 outbreak. As provided in the CFAP regulation, this document announces additional commodities that have been determined eligible for CFAP assistance. USDA carefully reviewed the additional information provided in the comments to develop the list of additional commodities.
The notification of funding availability is effective August 14, 2020.
William L. Beam, telephone (202) 720-3175; email
CFAP helps agricultural producers impacted by the effects of the COVID-19 outbreak. The CFAP regulations are in 7 CFR part 9. The CFAP regulations provide the general eligibility requirements, the application process, and payment calculation information. The CFAP rule was published in the
USDA requested information to evaluate whether additional commodities suffered losses that should result in eligibility for CFAP. The CFAP document that requested information from the public for additional commodities that suffered losses was published in the
In the interest of announcing additional commodities as eligible for CFAP as quickly as possible, we published a previous document in the
In this document, the commodities and issues raised in the comments that were not addressed in the prior notification are discussed by type of commodity. This document also lists the commodities for which assistance was requested that USDA has determined will not be eligible for CFAP.
USDA is also publishing a correction to the final rule to correct the payment rates and make the following crops eligible for payment for sales losses under § 9.5(b)(1): Onions, green; walnuts; and watermelons.
Payments for these aquaculture commodities will be the sum of:
(1) Aquaculture species sold (excluding crawfish) from January 15, 2020, through April 15, 2020, multiplied by the payment rate in column 3 of Table 3 in this document; and
(2) Inventory of the aquaculture species (excluding crawfish) that was not sold but was market size and available to be marketed between January 15, 2020, and April 15, 2020, multiplied by the payment rate in column 4 of Table 3 in this document.
Payments for crawfish will be the sum of:
(1) Crawfish sales from January 15, 2020, through April 15, 2020, multiplied by the payment rate in column 3 of Table 3 in this document; and
(2) Crawfish inventory that was not sold as of April 15, 2020, due to lack of market and will not be sold in calendar year 2020 multiplied by the payment rate in column 4 of Table 3 in this document.
There is no traditional market mechanism able to capture the price of thousands of different varieties of commodities of nursery crops and cut flowers; therefore, payments will be based on a percentage of the producer's wholesale value of inventory as described below. Payments for nursery crops and cut flowers will be the sum of:
(1) For nursery crop and cut flower inventory that was shipped but subsequently spoiled or is unpaid due to loss of marketing channels between January 15, 2020, and April 15, 2020, the wholesale value of the inventory that was shipped that spoiled or is unpaid, multiplied by 15.55 percent; and
(2) For nursery crop and cut flower inventory that did not leave the farm between January 15, 2020, and April 15, 2020, due to a complete loss of marketing channel, the wholesale value of the inventory ready for sale that did not leave the farm by April 15, 2020, and that will not be sold due to lack of markets, multiplied by 13.45 percent.
Payment rates were determined using coverage rates that represent half of input costs multiplied by the 40.5 percent average reported revenue loss. This approach accounts for the higher percentage of input costs incurred prior to “harvest” of the inventory compared to traditional agricultural crops. The portion of the payment calculated under paragraph (1) above will be paid with CARES Act funding, and the portion of the payment calculated under paragraph (2) will be paid with CCC funding. Inventory that may be sold after April 15, 2020, is not eligible for CFAP.
(1) First quarter production, multiplied by the CARES Act payment rate in Table 2 of this document; and
(2) First quarter production, multiplied by the CCC payment rate in Table 2 of this document.
USDA received several comments that addressed issues outside of the scope of the questions included in the notification.
USDA appreciates the input and will take the comments under consideration; however, at this time, for CFAP, USDA is only reviewing comments that addressed eligibility of commodities as provided in the notification.
Office of the Secretary, Agriculture (USDA).
Correcting amendments.
The Secretary of Agriculture implemented the Coronavirus Food Assistance Program (CFAP), which provides assistance to agricultural producers impacted by the effects of the COVID-19 outbreak, through a final rule published in the
William L. Beam; telephone: (202) 720-3175; email:
This rule corrects the CFAP regulations in 7 CFR part 9, which were implemented in the final rule that was published in the
In response to the notice of funding availability published in the
Accordingly, USDA is correcting 7 CFR 9.5 to make onions, green; walnuts; and watermelons eligible for payment under 7 CFR 9.5(b)(1), and adding CARES Act payment rates for sales losses for those crops to Table 1 to § 9.5(h). We are also correcting the other rates for those crops based on our review of additional data. Additional eligible crops and changes to eligibility for crops previously announced in a notification published in the
The addition in the payment rates and the resulting changes in the eligibility for specific types of payments per commodity will not change CFAP costs.
This rule also clarifies provisions regarding eligibility of aquaculture businesses in 7 CFR 9.5(j)(2). USDA understands that producers of molluscan shellfish and marine algae have suffered losses and we have carefully considered the other assistance that is being provided by the Federal Government. The Secretary of Commerce is providing assistance for these commodities with funding provided by section 12005 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act, Pub. L. 116-136). To avoid providing duplicate payments for the same losses, USDA has determined that CFAP will not cover those commodities. Aquaculture commodities that will be covered by CFAP will be announced in a separate notification.
In addition, 7 CFR 9.5(j)(2) is being clarified that eligibility is based on the USDA determination that the aquaculture products incurred “qualifying losses between January 15, 2020, and April 15, 2020.” Specifically, “qualifying losses” replaces “a decline in prices of 5 percent or more.”
Agricultural commodities, Agriculture, Disaster assistance, Indemnity payments.
Accordingly, 7 CFR part 9 is corrected by making the following correcting amendments:
15 U.S.C. 714b and 714c; and Division B, Title I, Pub. L. 116-136.
The addition and revisions read as follows:
(h) * * *
(j) * * *
(2) Producers that are privately owned aquaculture businesses growing freshwater and saltwater products in controlled environments, including raceways, ponds, tanks, and recirculating systems, extending to all farmed shrimp and salmonids (trout and salmon) are included in CFAP to the extent USDA determines individual types of the products have incurred qualifying losses between January 15, 2020, and April 15, 2020. The determination of which species are included will be specified in the NOFA referenced in paragraph (j)(1) of this section. CFAP does not provide assistance for molluscan shellfish and marine algae.
Internal Revenue Service (IRS), Treasury.
Correcting amendments.
This document contains corrections to final regulations (TD 9885) that were published in the
Sarah Hoyt at (202) 317-6848 or Julie Wang at (202) 317-6975 (not a toll-free number).
The final regulations (TD 9885) that are the subject of this correction are issued under § 1.1.502-59A of the Internal Revenue Code.
As published, December 6, 2019 (84 FR 66968) the final regulations (TD 9885; FR DOC. 2019-25744) contains an error that needs to be corrected.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:
26 U.S.C. 7805 * * *
Pension Benefit Guaranty Corporation.
Final rule.
This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to prescribe certain interest assumptions under the regulation for plans with valuation dates in September 2020. These interest assumptions are used for paying certain benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.
Effective September 1, 2020.
Gregory Katz (
PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminated single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974 (ERISA). The interest assumptions in the regulation are also published on PBGC's website (
PBGC uses the interest assumptions in appendix B to part 4022 (“Lump Sum Interest Rates for PBGC Payments”) to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Because some private-sector pension plans use these interest rates to determine lump sum amounts payable to plan participants (if the resulting lump sum is larger than the amount required under section 417(e)(3) of the Internal Revenue Code and section 205(g)(3) of ERISA), these rates are also provided in appendix C to part 4022 (“Lump Sum Interest Rates for Private-Sector Payments”).
This final rule updates appendices B and C of the benefit payments regulation to provide the rates for September 2020 measurement dates.
The September 2020 lump sum interest assumptions will be 0.00 percent for the period during which a benefit is (or is assumed to be) in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for August 2020, these assumptions represent no change in the immediate rate and are otherwise unchanged.
PBGC updates appendices B and C each month. PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to issue new interest assumptions promptly so that they are available for plans that rely on our publication of them each month to calculate lump sum benefit amounts.
Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during September 2020, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
In consideration of the foregoing, 29 CFR part 4022 is amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Issued in Washington, DC.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is amending a regulation that specifies what State Implementation Plans (SIPs) must require of sources in four categories with respect to continuous emission monitoring, recording, and reporting. Specifically, the amendments revise provisions that specify the minimum frequency for submitting reports of excess emissions that must be included in SIPs. The minimum frequency is being revised from “for each calendar quarter” to “twice per year at 6-month intervals.” The four source categories covered are: Fossil fuel-fired steam generators; fluid bed catalytic cracking unit catalyst regenerators at petroleum refineries; sulfuric acid plants; and nitric acid plants. As a result of this revision, states may choose to revise their SIPs to reflect the revised minimum frequency specified in our regulations. This action also corrects an erroneous cross-reference in our regulations.
This final rule is effective on September 14, 2020.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2018-0633. All documents in the docket are listed in the
For further general information on this rule, contact Ms. Lisa Sutton, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Policy Division, State and Local Programs Group (C539-01), Research Triangle Park, NC 27711, telephone number (919) 541-3450, email address:
Entities potentially affected directly by this action include states, United States (U.S.) territories, local authorities and eligible tribes that are currently administering, or may in the future administer, EPA-approved implementation plans (collectively “states”).
This action is being taken by the EPA under the authority of sections 110(a)(2)(F) and 301(a) of the Clean Air Act (CAA).
In addition to being available in the docket, an electronic copy of this
The information presented in the preamble is organized as follows:
Under CAA section 307(b)(1), judicial review of this nationally applicable final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit (the Court) by October 13, 2020. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.
Pursuant to CAA section 110, the EPA established procedural requirements applicable to all states concerning the preparation, adoption, and submission of SIPs and SIP revisions. These regulations, initially promulgated in 1971, comprise 40 CFR part 51, “Requirements for Preparation, Adoption, and Submittal of Implementation Plans.” Like the SIPs themselves, these regulations are periodically revised. The EPA in 1975 promulgated appendix P to 40 CFR part 51, setting forth minimum requirements for continuous emission monitoring that each SIP must require of certain specified categories of existing stationary sources in order to be approved under the provisions of 40 CFR 51.19 (now 40 CFR 51.214).
Over the next many years, the EPA expanded the types of sources to be regulated pursuant to CAA sections 111 (for New Source Performance Standards (NSPS)) and 112 (for National Emission Standards for Hazardous Air Pollutants (NESHAP)), and those later regulations (
In finalizing revisions to appendix P, the EPA is resolving a longstanding inconsistency in reporting requirements for certain categories of sources between (i) those specified as the minimum for appendix P source categories in the SIP context (under 40 CFR part 51) and (ii) those prescribed for similar sources through NSPS (under part 60) or NESHAP (under 40 CFR parts 61 and 63).
Through a notice of proposed rulemaking (NPRM) (85 FR 10121, February 21, 2020), the EPA solicited public comment on proposed revisions to appendix P to 40 CFR part 51—to change the minimum frequency of continuous emission monitoring reports specified for SIPs and to correct an erroneous cross-reference. Also through the NPRM, the EPA invited the public to comment on information collection activities in the rule; see section IV.C of this document for a brief summary of the Information Collection Request (ICR) document that the EPA prepared. The EPA received three comment submissions on its proposed revisions to appendix P to 40 CFR part 51. Two submissions were from state commenters and one submission was from an industry commenter. All comments concerned the proposed change in appendix P's minimum reporting frequency specified for SIPs. Among comments received, none were adverse comments, none were specific to the proposed correction of the cross-reference in appendix P, and none were specific to the ICR document. In this section of the final rule, the EPA summarizes and responds to comments received.
The EPA is amending appendix P to 40 CFR part 51, which specifies what SIPs must require of sources among four categories with respect to continuous emission monitoring, recording, and reporting. Those four appendix P source categories are: Fossil fuel-fired steam generators; fluid bed catalytic cracking unit catalyst regenerators at petroleum refineries; sulfuric acid plants; and nitric acid plants.
All revisions proposed in the NPRM (85 FR 10121, February 21, 2020) are being finalized without substantive change in this action. This action changes the minimum reporting frequency specified in appendix P for SIPs from “for each calendar quarter” to “twice per year at 6-month intervals.” The change aligns the minimum reporting frequency specified in appendix P for SIPs with the reporting frequency that the EPA has generally established under more recently updated programs applicable to sources among the four appendix P source categories, as the EPA explained in the NPRM. As a result of this change, a state may in turn choose to revise its SIP's reporting frequency requirement applicable to appendix P source categories. With this action, the EPA is achieving its mission of protecting public health and the environment by assuring that SIPs continue to apply adequate monitoring requirements. This action does not obligate a state to revise its SIP, however. The change in minimum reporting frequency specified in appendix P does not affect any state choosing to retain a more frequent reporting frequency requirement in its SIP for affected source categories. Therefore, this action will directly affect burden on a given state only to the extent that the state voluntarily prepares and submits a SIP revision that includes an appendix P-related provision. The EPA has prepared and submitted to OMB an Information Collection Request (ICR) document to estimate the regulatory burden from information collection activities associated with this rule. That burden is attributed to states' preparation and submission of SIP revisions, a type of reporting burden. The ICR is briefly summarized in Section IV.C of this document, and a copy of the ICR is available in the docket for this rulemaking. Aside from the direct burden attributed to states' preparation and submission of SIP revisions, the EPA anticipates that the final rule will indirectly reduce reporting-related burden on certain states and affected sources located in those states, while continuing to protect public health and the environment. The EPA has found, as noted in the NPRM at section IV.A, that semiannual reporting provides sufficiently timely information to ensure compliance and enable adequate enforcement of applicable requirements while imposing less burden on the affected industry than would quarterly reporting. The EPA does not expect the change in minimum reporting frequency to result in any change in the pollutant emissions from any of the sources.
In this action, the EPA is also revising a cross-reference in appendix P under section 1.0, as explained in the NPRM at section II.A, so that it correctly refers to the continuous emission monitoring regulations at 40 CFR 51.214.
Notwithstanding the revisions to appendix P being promulgated in this action, a source that is subject to more stringent federally enforceable excess emission reporting requirements would be required to comply with the applicable provisions of those rules.
A change in the specified minimum frequency with which affected sources must submit continuous monitoring system data reports to states, as a result of the final rule revising appendix P, is not expected to result in any change in
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.
The information collection activities in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2590.01. It will be assigned an OMB control number upon approval by OMB. You can find a copy of the ICR submitted to OMB in the docket for this rule, and it is briefly summarized here.
The regulatory burden under the information collection is attributed to states' preparation and submission of SIP revisions, a type of reporting burden. For purposes of estimating the paperwork burden, the EPA assumes that each of 56 entities, including states, the District of Columbia, and U.S. territories, would make a single SIP submission that includes an appendix P-related provision within 3 years after the effective date of the rule, corresponding to the requested 3-year collection period. There are no capital costs or operation and maintenance costs attributed to the 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
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. Any agency may certify that a rule will not have a significant economic impact on a 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 this rule. This action will not impose any requirements on small entities. Instead, this action leaves to each state the choice as to whether to reflect in its SIP a reduction in minimum reporting frequency specified for certain categories of stationary sources regulated under the CAA.
This action does not contain any unfunded mandate 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.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. It would not have a substantial direct effect on one or more Indian tribes, since no tribe has to develop a TIP under these regulatory revisions. Furthermore, these regulation revisions do not affect the relationship or distribution of power and responsibilities between the Federal Government and Indian tribes. The CAA and the Tribal Air Rule establish the relationship of the Federal Government and tribes in developing plans to attain the NAAQS, and these revisions to the regulations do nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because the reduction in minimum reporting frequency specified for certain categories of sources regulated under the CAA will have no effect on any obligation to comply with emission limitations in SIPs, and so it does not concern an environmental health risk or safety risk.
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 action merely allows states the option to reflect in their SIPs a reduction in minimum reporting frequency specified for certain categories of stationary sources regulated under the CAA.
This rulemaking does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous populations as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
This action merely allows states the option to reflect in their SIPs a
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
The statutory authority for this action is provided by CAA section 101
Environmental protection, Administrative practice and procedure, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Nitrogen oxides, Opacity, Ozone, Reporting and recordkeeping requirements, Sulfur dioxide, Sulfur oxides, Transportation, Volatile organic compounds.
For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Federal Maritime Commission.
Policy statement.
The Federal Maritime Commission (Commission) is publishing this policy statement in order to provide guidance on possible regulatory relief with respect to COVID-19's unprecedented economic effects to passenger vessel operators.
This policy statement is effective August 14, 2020.
Cindy Hennigan, Director, Bureau of Certification and Licensing, Federal Maritime Commission, 800 North Capitol Street NW, Room 1018, Washington, DC 20573; email:
On March 14, 2020, the Centers for Disease Control and Prevention (CDC) issued a “No Sail Order and Suspension of Further Embarkation” causing passenger vessel operators (PVOs) in the U.S. to cease all operations. CDC later extended the term of the order, demonstrating the uncertainty associated with this coronavirus pandemic (COVID-19).
On April 30, 2020, the Commission initiated Fact Finding 30 to investigate COVID-19's impact on the cruise industry. The Commission's Fact-Finding Officer has been meeting with PVOs, marine terminal operators, and other stakeholders to understand COVID-19's effects on the cruise industry.
To overcome the effects COVID-19 has had on our economy, on May 19, 2020, President Trump issued Executive Order 13924, Regulatory Relief To Support Economic Recovery. President Trump declared that federal agencies “should address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery, consistent with applicable law and with protection of the public health and safety, with national and homeland security, and with budgetary priorities and operational feasibility.”
The Commission administers Public Law 89-777, 46 U.S.C. 44101
Pursuant to the Commission's regulations, PVOs must file with the Commission evidence of financial responsibility for nonperformance of transportation in the form and amount described in the regulations. The Commission's regulations at 46 CFR 540.5 provides that the amount of coverage generally required shall be in an amount determined by the Commission to be no less than 110 percent of the unearned passenger revenue (UPR) of the applicant on the date within the two fiscal years immediately prior to the filing of the application which reflects the greatest amount of unearned passenger revenue.
The regulation, however, also provides that the Commission may, for good cause shown, consider a time period other than the previous two-fiscal-year requirement or other methods acceptable to the Commission to determine the amount of coverage required. The Commission's regulations at 46 CFR 540.9(l) further allow smaller PVOs
The Commission believes the sudden suspension of most cruise transportation due to COVID-19 has likely significantly reduced some PVOs' current UPR, leading to substantial disparity between current UPR and the generally required coverage amount under 46 CFR 540.5. This disparity could result in unnecessarily high premiums and required collateral for PVOs to maintain their required financial instruments. The Commission believes that COVID-19's unprecedented effects on the cruise
PVOs eligible under 46 CFR 540.9(l) (
In particular, the Commission will look favorably on requests for alternative forms of evidence of financial responsibility that are based upon 110% of the PVO's previous month's UPR, provided that: (1) The PVO agrees to comply with individual reporting requirements imposed by the Director of BCL regarding the submission of satisfactory documentation demonstrating the PVO's UPR on a monthly basis;
The Commission will maintain this policy as long as it determines that COVID-19's negative effects on the cruise industry continue and may maintain the policy after the expiration of the CDC's “No Sail Order” but in no case shall this policy terminate prior to the 1st of April 2021.
PVOs with any questions or concerns are encouraged to contact the Commission's Bureau of Certification and Licensing by email at
The Administrative Procedure Act (APA) (5 U.S.C. 551
This policy statement is not a “major rule” as defined by the Congressional Review Act, codified at 5 U.S.C. 801
The Regulatory Flexibility Act (codified as amended at 5 U.S.C. 601-612) provides that whenever an agency promulgates a final rule after being required to publish a notice of proposed rulemaking under the APA (5 U.S.C. 553), the agency must prepare and make available a final regulatory flexibility analysis describing the impact of the rule on small entities or the head of the agency must certify that the rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 604-605. As indicated above, this policy statement is not subject to the APA's notice-and-comment requirements, and the Commission is not required to either prepare a regulatory flexibility analysis or certify that the final rule would not have a significant economic impact on a substantial number of small entities.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before collecting information from the public. 44 U.S.C. 3507. The agency must submit collections of information in rules to OMB in conjunction with the publication of the notice of proposed rulemaking. 5 CFR 1320.11. This policy statement, however, does not contain any new collections of information, as defined by 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).
By the Commission.
Fish and Wildlife Service, Interior.
Affirmation of interim rule as final rule.
We, the U.S. Fish and Wildlife Service, are adopting as a final rule an interim rule that went into effect on April 2, 2020, establishing migratory bird subsistence harvest regulations in Alaska for the 2020 season and beyond. These regulations, which are subject to annual review, allow for the continuation of customary and traditional subsistence uses of migratory birds in Alaska and prescribe regional information on when and where the harvesting of birds may occur. For the reasons given in the interim rule and in this document, we are adopting the
The effective date for the interim rule that published April 2, 2020, at 85 FR 18455, is affirmed as April 2, 2020.
Documents pertaining to this rulemaking action are available on the internet at the Federal eRulemaking Portal:
Eric J. Taylor, U.S. Fish and Wildlife Service, 1011 E Tudor Road, Mail Stop 201, Anchorage, AK 99503; (907) 903-7210.
On April 2, 2020, we, the U.S. Fish and Wildlife Service, published an interim rule in the
We derive our authority to issue these regulations from the Migratory Bird Treaty Act of 1918 (MBTA), at 16 U.S.C. 712(1), which authorizes the Secretary of the Interior, in accordance with the treaties with Canada, Mexico, Japan, and Russia, to issue regulations to ensure that “the taking of migratory birds and the collection of their eggs, by the indigenous inhabitants of the State of Alaska, shall be permitted for their own nutritional and other essential needs, as determined by the Secretary of the Interior, during seasons established so as to provide for the preservation and maintenance of stocks of migratory birds.” Per the MBTA, the normal season for the subsistence harvest of migratory birds in Alaska begins on April 2 each year.
The provisions of the interim rule were the current regulations at § 92.31, with one change. These provisions were also set forth in rules issued in 2017, 2018, and 2019. In response to those rulemaking actions, no significant controversy was raised during the public comment periods.
We solicited public comments on the interim rule until April 13, 2020. By the close of the comment period, we received two comments. One comment was outside the scope of this rulemaking action, and the other comment expressed opposition to the rule because it allows the killing of birds.
As stated in the interim rule, the migratory bird subsistence harvest regulations are developed cooperatively. The Alaska Migratory Bird Co-Management Council consists of the U.S. Fish and Wildlife Service, the Alaska Department of Fish and Game, and representatives of Alaska's Native population. The Council's primary purpose is to develop recommendations pertaining to the subsistence harvest of migratory birds.
The Council recommended changes to the subsistence harvest regulations in 2018 and 2019. Therefore, in a related rulemaking action (RIN 1018-BF12, Docket No. FWS-R7-MB-2020-0022), we are taking action to revise § 92.31 as recommended by the Council.
We hereby affirm our responses to the following determinations required of the Federal rulemaking process as published in the April 2, 2020, interim rule (85 FR 18455):
• Executive Orders 12630, 12866, 12988, 13132, 13175, 13211, 13563, and 13771
• Regulatory Flexibility Act and Small Business Regulatory
• Enforcement Fairness Act (5 U.S.C. 601
• Unfunded Mandates Reform Act (2 U.S.C. 1501
• Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• National Environmental Policy Act (42 U.S.C. 4321
• Government-to-Government Relations with Native American Tribal Governments (59 FR 22951, and 512 DM 2)
Hunting, Treaties, Wildlife.
Accordingly, the Department of the Interior affirms as a final rule, without change, the interim rule amending 50 CFR part 92 that was published at 85 FR 18455 on April 2, 2020.
16 U.S.C. 703-712.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Interim final rule; request for comments.
This rule sets fishing year 2020 recreational management measures for Gulf of Maine cod and haddock. This action is necessary to respond to updated catch and other scientific information. The measures are intended to ensure the recreational fishery achieves, but does not exceed, fishing year 2020 catch limits.
This action is effective August 13, 2020. Comments must be received on or before September 14, 2020.
You may submit comments on this document, identified by NOAA-NMFS-2020-0105, by the following method:
•
1. Go to
2. Click the “Comment Now!” icon, complete the required fields, and
3. Enter or attach your comments.
Copies of the analyses supporting this rulemaking, including the Framework Adjustment 59 environmental assessment (EA) prepared by the New England Fishery Management Council are available from: Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. The supporting documents are also accessible via the internet at:
Spencer Talmage, Fishery Management Specialist, phone: 978-281-9232; email:
The recreational fishery for Gulf of Maine (GOM) cod and haddock is managed under the Northeast Multispecies Fishery Management Plan (FMP). The multispecies fishing year starts on May 1 and runs through April 30 of the following calendar year. The FMP sets sub-annual catch limits (sub-ACL) for the recreational fishery each fishing year for both species. These sub-ACLs are a fixed proportion of the overall catch limit for each stock. The FMP also includes proactive recreational accountability measures (AM) to prevent the recreational sub-ACLs from being exceeded and reactive AMs to correct the cause or mitigate the effects of an overage if one occurs.
The proactive AM provision in the FMP allows the Regional Administrator, in consultation with the New England Fishery Management Council, to develop recreational management measures for the upcoming fishing year to ensure that the recreational sub-ACL is achieved, but not exceeded. The provisions authorizing this action can be found in the FMP's implementing regulations at 50 CFR 648.89(f)(3).
The 2020 recreational sub-ACL for GOM cod is 193 metric tons (mt) and 6,210 mt for GOM haddock.
Using the 2020 sub-ACLs and a peer-reviewed bioeconomic model developed by NMFS's Northeast Fisheries Science Center that predicts fishing behavior under different management measures, we estimated 2020 recreational GOM cod and haddock removals under various combinations of minimum sizes, possession limits, and closed seasons. The bioeconomic model considers measures for the two stocks in conjunction because cod are commonly caught while recreational participants are targeting haddock, linking the catch and effort for each stock to the other. Preliminary estimates of GOM cod and haddock catch for fishing year 2019 indicate that the recreational fishery will not exceed the sub-ACL of either stock.
For each of the sets of management measures, 100 simulations of the bioeconomic model were conducted, and the number of simulations which yielded mortality estimates under the sub-ACL was used as an estimate of the probability that set of measures will not result in an overage of the sub-ACL. Several sets of measures considered using the bioeconomic model were rejected because the measures failed to exceed a 50-percent probability of removals remaining under the GOM cod sub-ACL. Two sets of possible measures resulted in model-estimated removals under the sub-ACL greater than 50 percent of the time. These were the status quo measures, Option 1, and an alternative, Option 2, which included the status quo measures and added an April 15 through 30 open season for cod (Table 1).
The bioeconomic model projects that measures for both GOM cod and haddock can be liberalized somewhat without the 2020 recreational fishery's sub-ACLs being exceeded. With any given model, however, there exists some level of uncertainty in the accuracy of model predictions. As in past years, we are using preliminary data from the Marine Recreational Information Program (MRIP) for this fishing year. Incorporation of new waves, or data updates, may result in changes in model estimates. MRIP data can be uncertain and highly variable from year to year. This is the first year in which the new, mail-based Fishing Effort Survey metrics were able to be used directly in the bioeconomic model to predict mortality. This reduced uncertainty relative to last year, which was caused by back-calibration of the MRIP estimates to the old Coastal Household Telephone Survey metrics.
The results of the bioeconomic model run were shared with the Council and its Recreational Advisory Panel (RAP) and Groundfish Committee for review. At its January meeting, the Council voted to recommend a set of measures that added an April 1-14 season for cod and extend the haddock open season to April 1. The Council expects this recommendation to result in catch of cod that would not exceed the sub-ACL. This was based on an assumption that the estimates for mortality under Option 2 could be used as an upper bound estimate for mortality for their recommendation. The Council recommendation would not allow fishing for cod from April 15-30, which was included in the bioeconomic model run for Option 2. A recommendation for an open cod season in that time period was disapproved in 2019 due to our and the public's concern about adverse impacts on spawning cod.
We intended to propose the Council recommendation from January. However, on April 29, 2020, we received a letter from the Council which stated that it planned on revisiting its recommendations at its June meeting to address unexpected disruptions to the for-hire recreational fishery. These included state restrictions on the operation of for-hire recreational fishing vessels.
At its June Meeting, the Council revised its recommended recreational GOM cod measures for fishing year 2020 to expand the fall open season by two additional weeks, to occur from September 8 through October 7, 2020, for the for-hire recreational fishery only.
As part of its recommendation, the Council noted that travel and other restrictions imposed by states in March and April effectively closed the for-hire fishery. While state restrictions of for-hire fishing have been lifted, limits on the number of people who may gather are still in place, limiting the number of passengers on vessels.
We used Vessel Trip Report (VTR) data to examine changes in activity among party/charter vessels in May and June 2020. These data indicate that the number of weekly party/charter trips and weekly mean number of anglers on party/charter VTRs have been reduced in 2020 in comparison to past years, both region-wide and in the GOM. (Table 2). The data examined in this analysis is limited to trips with a submitted VTR; trips that are missing a VTR submission and/or vessels that do not have a VTR requirement (
The private recreational fleet has been allowed to access the GOM haddock fishery during the spring and early summer fishery, and so the lack of access that supports expanding the fall season for the party/charter fleet does not apply to the private recreational fishery.
Based on the analysis using the bioeconomic model and other available information, this rule implements the measures as recommended by the Council at its June meeting, as follows:
The Assistant Administrator for Fisheries, NOAA (AA) has made a determination that this interim final rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
The AA finds that prior notice and the opportunity for public comment, pursuant to authority set forth at 5 U.S.C. 553(b)(B), would be contrary to the public interest. The Council's revised recommendation for recreational GOM cod and haddock measures at its June meeting prevented NMFS from publishing a proposed rule in time to implement final measures by September 8, 2020, which is the start of the open cod season for party/charter fishing vessels. The revised measures provide opportunities to mitigate adverse economic impacts from lost opportunities to fish in the spring due to state and local health and safety restrictions. The recommended additional weeks of open-season were subject to public comment at several meetings, including the Council's June meeting. The public, including the for-hire fleet, is anticipating an expanded open-season this fall given the public recommendations voted on by the Council at the June meeting. We are accepting additional public comments on this rule. The delay required for comments on these measures prior to their implementation would undermine the benefit intended by these measures. For these reasons, prior notice and the opportunity for public comment, pursuant to authority set forth at U.S.C. 553(b)(B), would be contrary to the public interest.
Similarly, the need to implement these measures in a timely manner to put this interim final rule in place prior to September 8, 2020, constitutes good cause under authority contained in 5 U.S.C. 553(d)(3), to establish an effective date less than 30 days after date of publication. The revised measures remove restrictions on fishing. Delay in implementing this rule would prevent party/charter fishing vessels from fishing for GOM cod during the recommended open season that will assist the for-hire recreation fishery adjust to impacts of state restrictions on the for-hire fleet carrying passengers in May and June this year. Plus, the for-hire fleet should benefit from the certainty from the immediate implementation of these measures upon publication. The certainty will provide additional time for the for-hire fleet to prepare for and take advantage of the opportunity to recruit and carry passengers for the recommended additional weeks this fall by enabling earlier advertisement to customers of available trips.
This interim final rule has been determined to be not significant for purposes of Executive Order 12866.
This interim final rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.
This interim final rule is exempt from the procedures of the Regulatory
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(c) * * *
(1)
(i)
(ii) [Reserved]
(2)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; in season adjustment.
NMFS is adjusting the 2020 C seasonal apportionments of the total allowable catch (TAC) for pollock in the Gulf of Alaska (GOA) by re-apportioning unharvested pollock TAC in Statistical Area 630 of the GOA. This action is necessary to provide opportunity for harvest of the 2020 pollock TAC, consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska.
Effective 1200 hours, Alaska local time (A.l.t.), August 13, 2020, until 2400 hours A.l.t., December 31, 2020.
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The annual pollock TACs in Statistical Areas 610, 620, and 630 of the GOA are apportioned among four seasons, in accordance with § 679.23(d)(2). Regulations at § 679.20(a)(5)(iv)(B) allow the underharvest of a seasonal apportionment to be added to subsequent seasonal apportionments, provided that any revised seasonal apportionment does not exceed 20 percent of the seasonal apportionment for a given statistical area. Therefore, NMFS is increasing the C season apportionment of pollock in Statistical Area 630 of the GOA to reflect the underharvest of pollock in Statistical Area 630 during the B season. In addition, any underharvest remaining beyond 20 percent of the originally specified seasonal apportionment in a particular area may be further apportioned to other statistical areas. Therefore, NMFS also is increasing the C season apportionment of pollock to Statistical Areas 610 and 620 based on the underharvest of pollock in Statistical Area 630 of the GOA. These adjustments are described below.
The C seasonal apportionment of the 2020 pollock TAC in Statistical Area 610 of the GOA is 9,070 metric tons (mt) as established by the final 2020 and 2021 harvest specifications for groundfish of the GOA (85 FR 13802, March 10, 2020). In accordance with § 679.20(a)(5)(iv)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), hereby increases the C season apportionment for Statistical Area 610 by 287 mt to account for the underharvest of the TAC in Statistical Area 630 in the B season. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the C seasonal apportionment of the TAC in Statistical Area 610. Therefore, the revised C seasonal apportionment of the pollock TAC in Statistical Area 610 is 9,357mt (9,070 mt plus 287 mt).
The C seasonal apportionment of the 2020 pollock TAC in Statistical Area 620 of the GOA is 6,739 mt as established by the final 2020 and 2021 harvest specifications for groundfish of the GOA (85 FR 13802, March 10, 2020). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the C seasonal apportionment for Statistical Area 620 by 213 mt to account for the underharvest of the TAC in Statistical Area 630 in the B season. This increase is not greater than 20 percent of the C seasonal apportionment of the TAC in Statistical Area 620. Therefore, the revised C seasonal apportionment of the pollock TAC in Statistical Area 620 is 6,952 mt (6,739 mt plus 213 mt).
The C seasonal apportionment of the 2020 pollock TAC in Statistical Area 630 of the GOA is 9,248 mt as established by the final 2020 and 2021 harvest specifications for groundfish of the GOA (85 FR 13802, March 10, 2020). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the C seasonal apportionment for Statistical Area 630 by 1,850 mt to account for the underharvest of the TAC in Statistical Area 630 in the B season. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the C seasonal apportionment of the TAC in Statistical Area 630. Therefore, the revised C seasonal apportionment of pollock TAC in Statistical Area 630 is 11,098 mt (9,248 mt plus 1,850 mt).
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reapportionment of pollock in Statistical Areas 610, 620, and 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 10, 2020.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend the Class D and Class E airspace at Waterloo Regional Airport, Waterloo, IA. The FAA is proposing this action as the result of an airspace review caused by the closure of runway 6/24 at Waterloo Regional Airport. The names and geographic coordinates of the airport and navigational aids would also be updated to coincide with the FAA's aeronautical database.
Comments must be received on or before September 28, 2020.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2020-0708/Airspace Docket No. 20-ACE-14 at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11D, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class D airspace, Class E surface airspace, Class E airspace area designated as an extension to Class D and Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface at Waterloo Regional Airport, IA, to support instrument flight rule operations at this airport.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2020-0708/Airspace Docket No. 20-ACE-14.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by:
Amending the Class D airspace at Waterloo Regional Airport, Waterloo, IA, by updating the name (previously Waterloo Municipal Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautical database; and replacing the outdated term “Airport/Facility Directory” with “Chart Supplement”;
Amending the Class E surface area Waterloo Regional Airport by updating the name (previously Waterloo Municipal Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautical database; and replacing the outdated term “Airport/Facility Directory” with “Chart Supplement”;
Amending the Class E airspace area designated as an extension to Class D and Class E surface airspace at Waterloo Regional Airport by removing the extensions east, south, and southwest of the VORTAC, as they are no longer needed; adding an extension within 1 mile each side of the 128° bearing from the Waterloo Regional: RWY 12-LOC extending from the 4.3-mile radius of the Waterloo Regional Airport to 4.4 miles southeast of the Waterloo Regional Airport; amending the extension north of the VOR/DME to the 356° radial (previously 351° radial); and updating the name and geographic coordinates of the Waterloo Regional Airport (previously Waterloo Municipal Airport) and the name of the Waterloo VOR/DME (previously Waterloo VORTAC) to coincide with the FAA's aeronautical database;
And amending the Class E airspace extending upward from 700 feet above the surface at Waterloo Regional Airport by removing the extension southeast of the airport, as it is no longer needed; adding an extension 2.4 miles each side of the 313° radial of the Waterloo VOR/DME extending from the 6.8-mile radius of the Waterloo Regional Airport to 7 miles northwest of the Waterloo VOR/DME; adding an extension 2.4 miles each side of the 356° radial of the Waterloo VOR/DME extending from the 6.8-mile radius of the Waterloo Regional Airport to 7 miles northwest of the Waterloo VOR/DME; and updating the name and geographic coordinates of the Waterloo Regional Airport (previously Waterloo Municipal Airport) and the name of the Waterloo VOR/DME (previously Waterloo VORTAC) to coincide with the FAA's aeronautical database.
This action is due to an airspace review caused by the closure of runway 6/24 at Waterloo Regional Airport.
Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designation listed in this document will be published subsequently in the Order.
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 3,400 feet MSL within a 4.3-mile radius of Waterloo Regional Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and times will thereafter be continuously published in the Chart Supplement.
Within a 4.3-mile radius of Waterloo Regional Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface within 1 mile each side of the 128° bearing from the Waterloo Regional: RWY 12-LOC extending from the 4.3-mile radius of the Waterloo Regional Airport to 4.4-miles southeast of the Waterloo Regional Airport, and within 2.4 miles each side of the 313° radial from the Waterloo VOR/DME extending from the 4.3-mile radius of the Waterloo Regional Airport to 7 miles northwest of the Waterloo VOR/DME, and within 2.4 miles each side of the 356° radial from the Waterloo VOR/DME extending from the 4.3-mile radius of the Waterloo Regional Airport to 7 miles north of the Waterloo VOR/DME.
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Waterloo Regional Airport, and within 2.4 miles each side of the 313° radial from the Waterloo VOR/DME extending from the 6.8-mile radius of the Waterloo Regional Airport to 7 miles northwest of the Waterloo VOR/DME, and within 2.4 miles each side of the 356° radial from the Waterloo VOR/DME extending from the 6.8-mile radius of the Waterloo Regional Airport to 7 miles north of the Waterloo VOR/DME.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to revoke the Class E airspace extending upward from 700 feet above the surface at Lake Lawn Airport, Delavan, WI, due to the cancellation of the instrument procedures at that airport and the airspace no longer being required.
Comments must be received on or before September 28, 2020.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2020-0734/Airspace Docket No. 20-AGL-29, at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11D, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would revoke the Class E airspace extending upward from 700 feet above the surface at Lake Lawn Airport, Delavan, WI, due to the cancellation of the instrument procedures at this airport.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2020-0734/Airspace Docket No. 20-AGL-29.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by revoking the Class E airspace extending upward from 700 feet above the surface Lake Lawn
This action is the result of the cancellation of instrument procedures at this airport.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Issued in Fort Worth, Texas, on August 10, 2020.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend the Class E airspace extending upward from 700 feet above the surface at Ohio County Airport, Hartford, KY. The FAA is proposing this action as the result of an airspace review due to the decommissioning of the Central City VHF omnidirectional range (VOR) navigation aid as part of the VOR Minimum Operational Network (MON) Program. The geographic coordinates of the airport would also be updated to coincide with the FAA's aeronautical database.
Comments must be received on or before September 28, 2020.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2020-0730/Airspace Docket No. 20-ASO-20, at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11D, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at Ohio County Airport, Hartford, KY, to support instrument flight rule operations at this airport.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile radius (increased from a 6.4-mile radius) of Ohio County Airport, Hartford, KY; and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database.
This action is the result of an airspace review caused by the decommissioning of the Central City VOR, which provided navigation information for the instrument procedures at this airport, as part of the VOR MON Program.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet or more above the surface within a 6.5-mile radius of Ohio County Airport.
Environmental Protection Agency (EPA).
Proposed rule.
Hawaii has applied to the Environmental Protection Agency (EPA) for updated authorization of changes made to its underground storage tank (UST) program under the Resource Conservation and Recovery Act (RCRA), as amended, since the previous authorization of Hawaii's UST program in September 2002. The EPA has reviewed Hawaii's application and has
Comments must be received on or before September 14, 2020.
Submit your comments, identified by Docket ID No. EPA-R09-UST-2020-0258 at
The federal
Robert Pallarino, Project Officer, Underground Storage Tank Program Office, LND-4-3, U.S. EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105,
Section 9004 of RCRA, 42 U.S.C. 6991c, authorizes the EPA to approve State UST programs to operate in the State in lieu of the federal UST program, subject to the authority retained by the EPA in accordance with RCRA. Program approval may be granted by the EPA pursuant to RCRA section 9004(b), if the EPA finds that the State program: (1) Is “no less stringent” than the federal program for the seven elements set forth at RCRA section 9004(a)(1) through (7); (2) includes the notification requirements of RCRA section 9004(a)(8); and (3) provides for adequate enforcement of compliance with UST standards of RCRA section 9004(a). Note that RCRA sections 9005 (on information-gathering) and 9006 (on federal enforcement) by their terms apply even in states with programs approved by the EPA under RCRA section 9004. Thus, the EPA retains its authority under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions in approved states. With respect to such an enforcement action, the EPA will rely on federal sanctions, federal inspection authorities, and federal procedures rather than the state authorized analogues to these provisions.
States that have received final approval from the EPA under RCRA section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an UST program that is equivalent to, consistent with, and no less stringent than the Federal UST program. When the EPA makes revisions to the regulations that govern the UST program, states must revise their programs to comply with the updated regulations and submit these revisions to the EPA for approval. Changes to state UST programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) part 280. States can also initiate changes on their own to their UST program and these changes must then be approved by the EPA.
On October 8, 2018, in accordance with 40 CFR 281.51(a), Hawaii submitted a complete program revision application seeking approval for its UST program revisions corresponding to the EPA final rule published on July 15, 2015 (80 FR 41566), which finalized revisions to the 1988 UST regulation and to the 1988 state program approval (SPA) regulation. As required by 40 CFR 281.20, the State submitted the following: A transmittal letter from the Governor requesting approval, a description of the program and operating procedures, a demonstration of the State's procedures to ensure adequate enforcement, a Memorandum of Agreement outlining the roles and responsibilities of the EPA and the implementing agency, a statement of certification from the Attorney General, and copies of all relevant State statutes and regulations. The EPA has reviewed the Hawaii application for updated UST Program authorization and has tentatively determined that the revisions to Hawaii's UST program are equivalent to, consistent with, and no less stringent than the corresponding federal requirements in Subpart C of 40 CFR part 281, and that the Hawaii program provides for adequate enforcement of compliance (40 CFR 281.11(b)). Therefore, the EPA is proposing to grant Hawaii approval to operate its UST program with the changes described in the program revision application as outlined below.
The EPA will consider all public comments on its proposed approval received in writing during the public comment period. Issues raised by those comments may be the basis for a decision to deny final approval to Hawaii's request for updated authorization. The EPA will make a final decision on whether to approve the subject changes to Hawaii's program
This action does not impose additional requirements on the regulated community because the requirements that are the subject of this proposed rule are already effective in the State of Hawaii, and they are not changed by this action. This action merely proposes approval of the existing State requirements as meeting the federal requirements and would thereby render them federally enforceable.
If the EPA receives comments on this proposed action, we will address all such comments in a later final rule. You are unlikely to have another opportunity to comment. If you want to comment on this proposed authorization, you should do so at this time.
Hawaii initially received final authorization on September 25, 2002, effective September 30, 2002 (67 FR 60161) to implement the UST program. On September 17, 2008, the EPA codified the approved Hawaii program that is subject to the EPA's inspection and enforcement authorities under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions (73 FR 53742).
In order to be approved, each state program application must meet the general requirements in 40 CFR 281.11, and specific requirements in 40 CFR 281 Subpart B (Components of a Program Application); Subpart C (Criteria for No Less Stringent); and Subpart D (Adequate Enforcement of Compliance). This also is true for proposed revisions to approved state programs.
As more fully described below, the State has made the changes to its approved UST program to reflect the 2015 Federal Revisions. The EPA is proposing to approve the State's changes because they are equivalent to, consistent with, and no less stringent than the federal UST program and because the EPA has confirmed that the Hawaii UST program will continue to provide for adequate enforcement of compliance, as required by 40 CFR 281.11(b) and part 281, Subpart D.
The Hawaii Department of Health (HDOH) is the lead implementing agency for the UST program in Hawaii. The HDOH continues to have broad statutory authority to regulate the installation, operation, maintenance, and closure of USTs, as well as UST releases under Hawaii Revised Statutes (HRS) 342L-1 through 342L-53. The Hawaii UST Program gets its enforcement authority from the powers and duties of the HDOH Director (Director) found in HRS 342L-8. Under HRS 342L-7 the Director is authorized to require an owner to furnish records, conduct monitoring or testing, and provide access to tanks. Under the powers granted to the Director, the HDOH is authorized to issue installation and operating permits (HRS342L-31). Permits must be renewed every five years (HRS342L-4). Penalties for non-compliance with Hawaii's UST statutes may be assessed under HRS342L-10. HRS342L-32.5 allows the HDOH to place a delivery prohibition tag on a tank for failure to have, or act in accordance with, a permit, spill and overfill prevention, required tank and/or piping leak detection, corrosion protection, or maintain financial responsibility.
Specific authorities to regulate the installation, operation, maintenance, and closure of USTs, as well as UST releases, are found under Hawaii Administrative Rules (HAR), effective July 15, 2018, section 11-280.1-1 through section 11-280.1-429 Underground Storage Tanks. Reporting and recordkeeping authorities and requirements are found under HRS section 342L-7, HRS section 342L-7.5, and HAR section 11.280.1-34. The EPA has tentatively determined that the aforementioned statutory sections and regulations satisfy the requirements of 40 CFR 281.40 and 281.41.
The State of Hawaii and the EPA have signed a Memorandum of Agreement (MOA), which will be effective at the time the EPA publishes its final decision to grant UST program approval to the changes to the State's UST program. This MOA provides that the State will continue to be the primary implementation agency for the UST Program in Hawaii and will continue to allow the EPA to conduct oversight and reviews of the State's efforts. The MOA also specifies how the EPA and the State will continue to share information.
The State's changes to its UST program do not affect the continued compliance of the State's statutes and rules with the public participation provisions contained in 40 CFR 281.42. HRS section 342L-12.5 provides that any person may intervene in any civil action to enforce the State's statutes and rules, if that person has an interest that is, or may be, adversely affected.
To qualify for approval, revisions to a state's program must be “equivalent to, consistent with, and no less stringent” than the federal program, in this case, the 2015 Federal Revisions. In the 2015 Federal Revisions, EPA addressed UST systems deferred in the 1988 UST regulations and added, among other things: New operation and maintenance requirements; secondary containment requirements for new and replaced tanks and piping; operator training requirements; and a requirement to ensure UST system compatibility before storing certain biofuel blends. In addition, the EPA removed past deferrals for emergency generator tanks, field constructed tanks, and airport hydrant systems. The EPA analyzes revisions to approved state programs pursuant to the criteria found in 40 CFR 281.30 through 281.39.
The HDOH has revised its regulations to help ensure that the State's UST program revisions are equivalent to, consistent with, and no less stringent than the 2015 Federal Revisions. The HDOH has repealed its previous UST rules, chapter 11-281, Hawaii Administrative Rules (HAR), and adopted a new chapter 11-280.1, HAR, effective July 15, 2018. The EPA has tentatively determined that the revised HAR addresses all the requirements of 40 CFR 281.30-281.39 and are at least as stringent, but in some cases more stringent or broader in scope, than the federal UST regulations. Hawaii rules that are broader in scope than the federal UST rules are discussed in more detail in Section I.H. of this document.
As part of the State Application, the Hawaii Attorney General certified that the State revisions meet the requirements “equivalent to, consistent with, and no less stringent” criteria in 40 CFR 281.30 through 281.39. The EPA is relying on this certification, the analysis submitted by the State and our own review in making this decision to propose approval of the State's updated authorization application.
Where an approved state program has a greater scope of coverage than required by federal law, the additional coverage is not part of the federally approved program and is not federally enforceable (40 CFR 281.12(a)(3)(ii)). The following paragraphs describe the
Hawaii's definitions of “regulated substance” at HRS section 342L-1 and section 11-280.1-12 are broader in scope than the federal definitions of “regulated substance.” For the most part, the definitions in the State and federal statutes and regulations are the same except that the State includes in its definitions “any other substance designated by the department that, when released into the environment, may present substantial danger to human health, welfare, or the environment.” These definitions are broader in scope to the extent that Hawaii includes substances that are designated as regulated substances by the HDOH, pursuant to subsection (3) of Hawaii's definition of the term, which are neither (a) “any substance defined in section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980 (but not including any substance regulated as a hazardous waste under subtitle C [of RCRA]” or (b) “[p]etroleum, including crude oil or any fraction thereof that is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute).”
HAR section 11-280.1-21 requires that all UST systems be upgraded to secondary containment by a firm fixed date, July 15, 2028, except for field constructed tanks and airport hydrant systems, which must be provided with secondary containment by July 15, 2038. This aspect of Hawaii's program is broader in scope than the federal program since the federal UST program does not require all UST systems to be upgraded to provide secondary containment, only newly (after the effective date of the federal UST rule) installed or repaired tanks or piping.
HAR section 11-280.1-23 and HAR section 11-280.1-42 require hazardous substance USTs to use interstitial monitoring and be secondarily contained with no exceptions. As long as the implementing agency approves, the federal program allows hazardous substance USTs installed prior to October 13, 2015 to use alternative release detection methods if specific conditions are met. This aspect of Hawaii's program, mandating the use of interstitial monitoring as the only release detection method for all hazardous substance UST systems, is broader in scope than the federal program to the extent it applies to hazardous substance USTs installed prior to October 13, 2015, where the specific conditions referenced in 40 CFR 280.42(e) of the federal rules are met.
HAR section 11-280.1-34(a) requires notifications to the HDOH when changes are made to the UST system, which is broader in scope than the federal requirements. Federal UST rules only require notification of existing or newly installed UST systems or when UST systems are switched to storing certain regulated substances.
HAR section11-280.1-53(b)(2) and section 11-451-6(b)(4) establish a “reportable quantity” threshold for trichloropropane of 10 lbs. Since the federal program does not require reporting of releases of trichloropropane, this requirement of the State's program is broader in scope than the federal program to this limited extent.
HAR section 11-280.1-61.1 requires owners and operators to post signs around the perimeter of a site where contamination poses an immediate health risk or where contaminated media is exposed to the surface, if the Department determines that the posting of such signs is appropriate. This requirement is broader in scope than the federal UST program, which does not include an analogous provision.
HAR section 11-280.1-67 requires public notification in the event of a confirmed release. This requirement is broader in scope than the federal UST program, which only requires public notification when an implementing agency requires a corrective action plan.
HAR 11-280.1-300 through 11-280.1-335 require permits for the installation and operation of USTs. Permits must be renewed regularly. There is no federal requirement for USTs to be permitted either at installation or during operation. This aspect of Hawaii's program is broader in scope than the federal program since the federal UST program does not include analogous permitting requirements.
HRS 342L-14 allows the Director of the Department to establish fees for department services. HAR 11-280.1-335 specifies the amounts for various fees for permit and variance applications. This provision of Hawaii's UST program is broader in scope because there are no federal requirements which address the establishment of fees for services.
Hawaii's UST program contains provisions that allow the State to grant variances. The Hawaii Attorney General's Office has indicated that such variances may be granted where State rules are broader in scope than the federal regulations. To the extent that such variances are granted, and the resulting requirements imposed pursuant to such variances are broader in scope than the federal UST requirements, the requirements imposed by such variances will not be federally enforceable as part of the authorized State program. However, to the extent that any variances are issued for aspects of the State's program that result in the imposition of requirements which are merely more stringent than the federal UST requirements, as opposed to broader in scope, the resulting requirements of such variances will be federally enforceable as part of the authorized State program. The following provisions pertain to Hawaii's variance requirements: HRS section 342L-1 (definition of “variance”); HRS section 342L-5 (variance allowed); HRS section 342L-6 (procedures for variances); HAR 11-280.1-12 (definition of “variance”); HAR 11-280.1-332 (variance allowed); and HAR 11-280.1-333 (variance applications).
Codification is the process of placing citations and references to the state's statutes and regulations that comprise the state's authorized UST program into the Code of Federal Regulations. EPA does this by adding those citations and references to the authorized state rules in 40 CFR part 282. EPA is not proposing to codify the authorization of Hawaii's changes at this time. However, EPA intends to amend 40 CFR part 282, subpart B for any updated authorization of Hawaii's program changes at a later date.
This action only applies to Hawaii's UST Program requirements pursuant to RCRA Section 9004 and imposes no requirements other than those imposed by state law. It complies with applicable EOs and statutory provisions as follows:
The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, Oct. 4, 1993) and 13563 (76 FR 3821, Jan. 21, 2011). This action proposes to approve state requirements for the purpose of RCRA section 9004 and imposes no additional requirements beyond those imposed by
This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as this proposed approval of Hawaii's revised underground storage tank program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Because this action proposes to approve and codify pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same reason, and because there are no federally recognized Tribes within the State, this proposed action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This proposed action 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, as specified in Executive Order 13132 (64 FR 43255, Aug. 10, 1999), because it merely proposes approval of state requirements as part of the State RCRA Underground Storage Tank Program without altering the relationship or the distribution of power and responsibilities established by RCRA.
This proposed action also is not subject to Executive Order 13045 (62 FR 19885, Apr. 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks.
This proposed rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a “significant regulatory action” as defined under Executive Order 12866.
Under RCRA section 9004(b), the EPA grants a state's application for approval as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a state approval application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
The EPA has complied with Executive Order 12630 (53 FR 8859, Mar. 15, 1988) by examining the takings implications of the proposed rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order.
This proposed rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this proposed rule would approve pre-existing state rules which are at least equivalent to, consistent with, and no less stringent than existing federal requirements, and would impose no additional requirements beyond those imposed by state law, and there would be no anticipated significant adverse human health or environmental effects, the proposed rule is not subject to Executive Order 12898.
The Congressional Review Act, 5 U.S.C. 801-808, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA seeks public comment prior to taking final action on this proposal. The proposed rule will not become effective until the EPA makes a final decision on whether or not to approve the subject changes to Hawaii's program and gives notice of that final decision in the
This proposed rule is issued under the authority of Sections 2002(a), 7004(b), and 9004, 9005 and 9006 of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6974(b), and 6991c, 6991d, and 6991e.
Administrative practice and procedure, Hazardous substances, State program approval, Program revisions update, and Underground storage tanks.
Agricultural Marketing Service, USDA.
Notice.
The Agricultural Marketing Service (AMS) is announcing the designation of Mid-Iowa Grain Inspection, Inc. (Mid-Iowa), to provide official services under the United States Grain Standards Act (USGSA), as amended.
July 1, 2020.
Austyn Hughes, (816) 891-0456 or
In the February 10, 2020,
AMS received two applications for designation. These applicants were Mid-Iowa and Midwest Grain Inspection, Inc (Midwest). Mid-Iowa is the current official agency in the assigned territory and has applied for the entire territory. Midwest is a new business, requesting designation in two counties in Iowa (Clinton and Jackson) and two counties in Illinois (Carroll and Whiteside) within the territory.
AMS evaluated each application against the designation criteria in section 7(f) of the USGSA (7 U.S.C. 79(f)) and determined that Mid-Iowa is better able to provide official services in the geographic area specified in the
Interested persons may obtain official services by contacting this agency at the following telephone number:
Section 7(f) of the USGSA authorizes the Secretary to designate a qualified applicant to provide official services in a specified area after determining that the applicant is better able than any other applicant to provide such official services (7 U.S.C. 79 (f)).
7 U.S.C. 71-87k.
The Department of Agriculture has submitted the following information collection requirement(s) to Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding: Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by September 14, 2020 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding; whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by September 14, 2020 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Office of Assistant Secretary for Civil Rights.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the intention of the Office of the Assistant Secretary for Civil Rights to request a renewal to an approved information collection for race, ethnicity, and gender along with comments.
Comments on this notice must be received by October 13, 2020 to be assured of consideration.
The Office of the Assistant Secretary for Civil Rights invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:
Denise A. Banks, Office of the Assistant Secretary for Civil Rights, U.S. Department of Agriculture, 1400 Independence Avenue SW, Washington, DC 20250, (202) 401-7654 and fax number (202) 690-1782.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the intention of the Office of the Assistant Secretary for Civil Rights to request approval for an existing collection in use with an OMB control number.
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 Office of Management and Budget approval. All comments will become a matter of public record.
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: Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology Comments regarding these information collections are best assured of having their full effect if received by September 14, 2020. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such
Food Safety and Inspection Service, USDA.
Notification of public meeting.
The Food Safety and Inspection Service (FSIS) is hosting a virtual public meeting with participation from the Agricultural Research Service (ARS), the U.S. Food and Drug Administration (FDA), and the Centers for Disease Control and Prevention (CDC). FSIS will discuss the Agency's commitment to reducing
The virtual public meeting will be held on Tuesday, September 22, 2020, from 9 a.m. to 3:15 p.m. EST. Submit comments on or before September 25, 2020.
The meeting is virtual and will be viewed via the web-ex link provided by email when you register for the meeting. Attendees must be pre-registered for the meeting. See the pre-registration instructions under “Registration and Meeting Materials.”
Comments on this notice may be submitted by one of the following methods:
Email Congressional and Public Affairs at
The daily work of implementing the Federal Meat Inspection Act (FMIA), Poultry Products Inspection Act (PPIA), and the Egg Products Inspection Act (EPIA) is carried out by FSIS inspectors in over 6,500 establishments across the country. Although not always apparent to the public, there are many other components of the Agency that support the work of the field personnel in addressing foodborne pathogens. While the scope of FSIS authority to enforce FMIA, PPIA, and EPIA is centered on the meat, poultry, and egg products industries, the activities of the Agency drive change along the entire farm-to-fork continuum to protect our food supply. Food safety is a shared responsibility, and FSIS, in partnership with the greater food safety community ensures that safe and wholesome foods are on our dinner table and in our restaurants, schools, and institutions every day.
FSIS aggressively targets all foodborne pathogens of importance within their regulatory authority, including
FSIS is announcing that it will hold a virtual public meeting on September 22, 2020, to discuss issues related to the foodborne pathogen
•
• Modernization of inspection systems;
• The role of FSIS Laboratories and sampling methods to reduce
•
• Consumer research and education; and
• Future scientific strategies for controlling
There is no fee to register for the public meeting, but pre-registration is mandatory for participants attending. All attendees must register online at
Stakeholders will have an opportunity to provide oral comments during the public meeting. As mentioned above, stakeholders must notify FSIS during registration of their wish to speak at the meeting. Stakeholders who do not notify FSIS during registration of their wish to speak will not have the opportunity to comment on the day of the public meeting. Due to the anticipated high level of interest in the opportunity to make public comments and the limited time available to do so, FSIS will do its best to accommodate all persons who registered and requested to provide oral comments, and will limit all speakers to three minutes. FSIS encourages persons and groups who have similar interests to consolidate their information for presentation by a single representative.
During the meeting, FSIS will host a roundtable discussion with subject matter experts. Questions for the roundtable discussion panel should be submitted in advance, to
As soon as the meeting transcripts are available, they will be accessible on the FSIS website at:
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination, any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at:
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication
Done at Washington, DC.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection for the extension, without change, of a currently approved collection for the Supplemental Nutrition Assistance Program (SNAP) Employment and Training (E&T) Program Activity Report (form FNS-583) and State requests for additional funding only. Requests and recordkeeping for these activities are currently approved under OMB No. 0584-0339, expiration date 01/31/2021. The burden hours and total annual responses remains unchanged. FNS is not seeking public comments on the reporting burden for the FNS-583 because that is under FNS' web-based Food Program Reporting System, OMB Control No: 0584-0594, expiration date 07/31/2023.
Written comments must be received on or before October 13, 2020.
Comments may be sent to: Moira Johnston, Food and Nutrition Service, U.S. Department of Agriculture, 1320 Braddock Place, Alexandria, VA 22314. Comments may also be submitted via email to
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Moira Johnston at 703-305-2515.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The information collected on the FNS-583 report includes:
• On the first quarter report, the number of work registrants receiving SNAP as of October 1 of the new fiscal year;
• On each quarterly report, by month, the number of new work registrants; the number of able-bodied adults without dependents (ABAWDs) applicants and recipients participating in qualifying components; the number of all other applicants and recipients (including ABAWDs involved in non-qualifying activities) participating in components; and the number of ABAWDs exempt under the State agency's 15 percent exemption allowance;
• On the fourth quarter report, the total number of individuals who participated in each component, which is also sorted by ABAWD and non-ABAWD participants and the number of individuals who participated in the E&T Program during the fiscal year.
7 CFR 273.7(d)(1)(i)(D) provides that if a State agency will not expend all of the funds allocated to it for a fiscal year, FNS will reallocate unexpended funds to other State agencies during the fiscal year or the subsequent fiscal year as FNS considers appropriate and equitable. After FNS makes initial E&T allocations, State agencies may request more funds as needed. Typically FNS receives eighteen such requests per year.
The time it takes to prepare these requests is included in the burden. After receiving the State requests, FNS will reallocate unexpended funds as provided above. The following is the estimated burden for E&T reporting including the burden for State agencies to request additional funds.
The estimated number of respondents for requesting additional funds and maintaining records to support these requests is 18 per year.
The State agencies requesting additional funds typically do so once per year.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This NEW information collection will provide USDA with information on Child Support Cooperation Requirements in the Supplemental Nutrition Assistance Program (SNAP).
Written comments must be received on or before October 13, 2020.
Written comments may be sent to: Michael Burke, Office of Policy Support, FNS, USDA, 1320 Braddock Place, 5th Floor, Alexandria, VA 22314. Comments may also be submitted via email to
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5:00 p.m. Monday through Friday) at Office of Policy Support, FNS, USDA, 1320 Braddock Place, 5th Floor, Alexandria, VA 22314.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Michael Burke by mail at Office of Policy Support, FNS, USDA, 1320 Braddock Place, 5th Floor Alexandria, VA 22314; by email at
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The study will include 12 States, including 7 States that are exercising the option to implement a child support requirement in SNAP, 2 States that formerly implemented a child support cooperation requirement but no longer do so, and 3 States that are considering implementing this requirement. Study objectives include (1) assessing the implementation of the child support cooperation requirement in States currently implementing it; (2) assessing the feasibility of implementing a child support cooperation requirement in study States that formerly chose to implement the requirement or are considering implementing it; (3) assessing the impact of a child support cooperation requirement in SNAP on custodial and noncustodial parents in study States that have or formerly had the requirement; (4) assessing how State agencies align the procedures for implementing a child support cooperation requirement in SNAP to those in other Federal programs that have a cooperation requirement; (5) determining the costs and benefits to State SNAP agencies, child support agencies, and households of requiring State agencies to implement a child support cooperation requirement; and (6) assessing the impact of a child support cooperation requirement on SNAP eligibility, benefit levels, food security, income, and economic stability.
To achieve the research objectives, the study will conduct site visits and collect administrative data. The site visits will include interviews with State staff designated by the State Director from the SNAP and child support agencies. In 7 States that currently have child support requirements in SNAP, site visits will include visits to two local SNAP and two local child support agency offices as well as interviews with staff. The study will use this information to document the processes used to implement the child support cooperation requirement. The study will conduct in-person interviews with SNAP participants in 10 States that either have child support requirements in SNAP or are considering implementing these requirements to collect information on how clients understand the requirement and how it affects them.
To assess the impact of the requirement on SNAP participants and applicants, the study will also collect and analyze SNAP and child support administrative data in all 12 study states. In the 9 study states that currently have or formerly had child support requirements in SNAP, the SNAP agency respondent who provides the SNAP data for the study will also provide TANF and/Medicaid administrative data if those program data are housed in the same agency that administers SNAP. If the TANF and/or Medicaid programs are housed in agencies different from the SNAP agencies, the TANF and/or Medicaid administrative data will not be collected. Finally, the study will collect and analyze cost data associated with implementing the requirement in selected States to assess the costs of implementation and to compare these against the benefits of the requirement.
FNS used the average frequency of all respondent/non-respondent group to determine the annual frequency estimates. Average 1.40 frequency of responses for individuals/households (with an expected 1,050 responses from 750 respondents), 1.4375 responses for State and local government representatives (with an expected 506 responses from 352 respondents), and 2.00 responses for (business for profit) private sector representatives (with an expected 24 responses from 12 respondents).
FNS used the time per all respondent/non-respondent group to determine the annual frequency estimates. The estimated time of response varies from 0.0835 or (5 minutes) to 35.00 burden hours depending on the respondent group, with an average estimated time of 1.28 hours (1 hour and 17 minutes).
Forest Service, USDA
Request for applications.
The U.S. Department of Agriculture (USDA), Forest Service, State and Private Forestry, Cooperative Forestry staff, requests applications for the Community Forest and Open Space Conservation Program (Community Forest Program or CFP). The Community Forest Program is a competitive grant program whereby local governments, qualified nonprofit organizations, and federally recognized Indian tribes are eligible to apply for grants to establish community forests that provide community benefits through fee simple acquisition of private forest land.
Interested local government and nonprofit applicants must submit applications to the State Forester. Tribal applicants must submit applications to the appropriate Tribal government official. All applications, either hardcopy or electronic, must be received by State Foresters or Tribal governments by January 11th, 2021. State Foresters or Tribal government officials must forward applications to the appropriate Forest Service Regional office or International Institute of Tropical Forestry by February 8th, 2021.
All local government and qualified nonprofit organization applications must be submitted to the State Forester of the State where the property is located. All Tribal applications must be submitted to the equivalent Tribal government official. Applicants are encouraged to contact and work with the Forest Service Region or International Institute of Tropical Forestry, and State Forester or equivalent Tribal government official when developing their proposal. Applicants must consult with the State Forester and equivalent Tribal government official prior to requesting technical assistance for a project. The State Forester's member roster may be found on
State Foresters and Tribal government officials shall submit applications, either electronic or hardcopy, to the appropriate Forest Service Region/Institute contact noted below.
For questions regarding the grant application or administrative regulations, contact Scott Stewart, Program Coordinator, 202-465-5038,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
Detailed information regarding what to include in the application, definitions of terms, eligibility, and necessary prerequisites for consideration can be
a.
b.
c.
d.
e.
Funds have not yet been appropriated for CFP in FY 2021. Individual grant applications may not exceed $600,000, which does not include technical assistance requests. The Federal Government's obligation under this program is contingent upon the availability of appropriated funds.
No legal liability on the part of the Government shall be incurred until funds are committed by the grant officer for this program to the applicant in writing. The initial grant period shall be for two years, and acquisition of lands should occur within that timeframe. Lands acquired prior to the grant award are not eligible for CFP funding. The grant may be reasonably extended by the Forest Service when necessary to accommodate unforeseen circumstances in the land acquisition process. Written annual financial performance reports and semi-annual project performance reports shall be required and submitted to the appropriate grant officer.
Technical assistance funds, totaling not more than 10 percent of all funds, may be allocated to State Foresters and equivalent officials of the Indian tribe. Technical assistance, if provided, will be awarded at the time of the grant. Applicants shall work with State Foresters and equivalent officials of the Indian Tribe to determine technical assistance needs and include the technical assistance request in the project budget.
As funding allows, applications submitted through this request may be funded in future years, subject to the availability of funds and the continued feasibility and viability of the project.
All applicants must also send an email to
All State Foresters and Tribal government officials must forward applications to the Forest Service by February 8th, 2021.
The following section outlines grant application requirements:
a. The application can be no more than eight pages long, plus no more than two maps (eight and half inches by eleven inches in size), the grant forms specified in (b), and the draft community forest plan specified in (e).
b. The following grant forms and supporting materials must be included in the application:
(1) An Application for Federal Assistance (Standard Form 424);
(2) Budget information (Standard Form SF 424c—Construction Programs); and
(3) Assurances of compliance with all applicable Federal laws, regulations, and policies (Standard Form 424d— Construction Programs).
c. Documentation verifying that the applicant is an eligible entity and that the land proposed for acquisition is eligible (see § 230.2 of the final rule).
d. Applications must include the following, regarding the property proposed for acquisition:
(1) A description of the property, including acreage and county location;
(2) A description of current land uses, including improvements;
(3) A description of forest type and vegetative cover;
(4) A map of sufficient scale to show the location of the property in relation to roads and other improvements as well as parks, refuges, or other protected lands in the vicinity;
(5) A description of applicable zoning and other land use regulations affecting the property;
(6) A description of the type of community being served and the extent of community benefits, including to underserved communities (see selection criteria);
(7) A description of relationship of the property within and its contributions to a landscape conservation initiative, as well as any environmental justice initiatives, if applicable; and
(8) A description of any threats of conversion to non-forest uses, including any encumbrances on the property that prevent conversion to non-forest uses.
e. Information regarding the proposed establishment of a community forest, including:
(1) A description of the benefiting community, including demographics, availability of and access to green spaces and other inequalities faced by the community;
(2) A description of the associated benefits provided by the proposed land acquisition;
(3) A description of community involvement, including marginalized communities, to-date in the planning of the community forest acquisition, and of community participation anticipated in long-term management;
(4) An identification of persons and organizations that support the project
(5) A draft community forest plan. The eligible entity is encouraged to work with the State Forester or equivalent Tribal government official for technical assistance when developing or updating the Community Forest Plan. In addition, the eligible entity is encouraged to work with technical specialists, such as professional foresters, recreation specialists, wildlife biologists, or outdoor education specialists, when developing the Community Forest Plan.
f. Information regarding the proposed land acquisition, including:
(1) A proposed project budget not exceeding $600,000 and technical assistance needs as coordinated with the State Forester or equivalent Tribal government official (section § 230.6 of the final program rule);
(2) The status of due diligence, including signed option or purchase and sale agreement, title search, minerals determination, and appraisal;
(3) Description and status of cost share (secure, pending, commitment letter, etc.) (section § 230.6 of the final rule);
(4) The status of negotiations with participating landowner(s) including purchase options, contracts, and other terms and conditions of sale;
(5) The proposed timeline for completing the acquisition and establishing the community forest; and;
(6) Long term management costs and funding source(s).
g. Applications must comply with the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards also referred to as the Omni Circular (2 CFR part 200).
h. Applications must also include the forms required to process a Federal grant. Section 6
In order to assist applicants, a Community Forest Road Map can be found on the CFP website at
a. Using the criteria described below, to the extent practicable, the Forest Service will give priority to applications that maximize the delivery of community benefits, as defined in the final rule (see section § 230.2 of the final rule); and
b. The Forest Service will evaluate all applications received by the State Foresters or equivalent Tribal government officials and award grants based on the following criteria:
(1) Type and extent of community benefits provided, including to underserved communities. Community benefits are defined in the final program rule as:
(i) Economic benefits, such as timber and non-timber products resulting from sustainable forest management, recreation and tourism;
(ii) Environmental benefits, including clean air and water, stormwater management, and wildlife habitat;
(iii) Benefits from forest-based experiential learning, including K-12 conservation education programs; vocational education programs in disciplines such as forestry and environmental biology; and environmental education through individual study or voluntary participation in programs offered by organizations such as 4-H, Boy or Girl Scouts, Master Gardeners, etc.;
(iv) Benefits from serving as replicable models of effective forest stewardship for private landowners; and
(v) Recreational benefits such as hiking, hunting, and fishing secured through public access.
(2) Extent and nature of community engagement, including participation by marginalized communities, in the establishment and long-term management of the community forest;
(3) Amount of cost share leveraged;
(4) Extent to which the community forest contributes to a landscape conservation initiative, as well as any applicable environmental justice initiatives;
(5) Extent of due diligence completed on the project, including cost share committed and status of appraisal;
(6) Likelihood that, unprotected, the property would be converted to non-forest uses; and
(7) Costs to the Federal Government.
a. Once an application is selected, funding will be obligated to the grant recipient through a grant adhering to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards also referred to as the Omni Circular (2 CFR part 200).
b. Forest Service must approve any amendments to a proposal or request to reallocate funding within a grant proposal. If negotiations on a selected project fail, the applicant cannot substitute an alternative site.
c. The grant recipient must comply with the requirements in section § 230.8 in the final rule before funds will be released.
d. After the project has closed, as a requirement of the grant, grant recipients will be required to provide the Forest Service with a Geographic Information System (GIS) shapefile: A digital, vector-based storage format for storing geometric location and associated attribute information, of CFP project tracts and cost share tracts, if applicable.
e. Any funds not expended within the grant period must be de-obligated and revert to the Forest Service.
f. All media, press, signage, and other documents discussing the creation of the community forest must reference the partnership and financial assistance by the Forest Service through the CFP.
Additional information may be found in section § 230.9 of the final rule.
Commission on Civil Rights.
Announcement of meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the New Mexico Advisory Committee (Committee) will hold a series of meetings via teleconference on Wednesday, October 7, 21, and Wednesday, November 4, 18, and Monday, November 30, 2020 at 2:00 p.m. Mountain Time for the purpose of discussing a draft of the Committee's Advisory Memorandum on Wage Theft and Subminimum Wages.
These meetings will be held on:
Brooke Peery, Designated Federal Officer (DFO), at
Members of the public may listen to the discussion. This meeting is available to the public through the above listed toll-free number. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit Office, U.S. Commission on Civil Rights, 300 N. Los Angeles St., Suite 2010, Los Angeles, CA 90012 or emailed to Brooke Peery at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available at:
Please click on the “Meeting Details” and “Documents” links. Persons interested in the work of this Committee are also directed to the Commission's website,
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a teleconference meeting of the Arizona Advisory Committee (Committee) to the Commission will be held at 12:00 p.m. (Arizona Time) Tuesday, September 8, 2020. The purpose of the meeting is for the Committee to discuss potential topics of study.
The meeting will be held on Tuesday, September 8, 2020 at 12:00 p.m. Arizona Time.
PUBLIC CALL INFORMATION:
Brooke Peery, Designated Federal Officer, (DFO) at
This meeting is available to the public through the following toll-free call-in number: 800-367-2403, conference ID number: 5740796. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. Persons who desire additional information may contact the Regional Programs Unit at (213) 894-3437.
Records and documents discussed during the meeting will be available for public viewing prior to and after the meetings at
Please click on the “Committee Meetings” tab. Records generated from these meetings may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meetings. Persons interested in the work of this Committee are directed to the Commission's website,
Census Bureau, Commerce.
Notice of information collection, request for comment; correction.
The Department of Commerce, in accordance with the Paperwork Reduction Act (PRA) of 1995, invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The Census Bureau published a document in the
Requests for additional information or specific questions related to collection activities should be directed to Robin A. Pennington, Decennial Census Management Division, Program Management Office, by phone 301-763-8132 or by email
The
“The CQR does not revise the population counts sent to the President by December 31, 2020, which determine the apportionment to the U.S. House of Representatives or revise the population counts relating to differential privacy, which is the new mathematical approach developed to protect the identity of individual respondents in the 2020 Census population counts.”
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that countervailable subsidies are being provided to producers and exporters of common alloy aluminum sheet (aluminum sheet) from The Republic of Turkey (Turkey). The period of investigation is January 1, 2019 through December 31, 2019. Interested parties are invited to comment on this preliminary determination.
Applicable August 14, 2020.
Gene H. Calvert, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3586.
This preliminary determination is made in accordance with section 703(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on April 7, 2020.
The product covered by this investigation is common alloy aluminum sheet from Turkey. For a complete description of the scope of this investigation,
In accordance with the
Commerce is conducting this investigation in accordance with section 701 of the Act. For each of the subsidy programs found countervailable, Commerce preliminarily determines
Commerce notes that, in making these findings, it relied, in part, on facts available and, because Commerce finds that one or more respondents did not act to the best of their ability to respond to Commerce's requests for information, Commerce drew an adverse inference where appropriate in selecting from among the facts otherwise available.
As noted in the Preliminary Decision Memorandum, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), Commerce is aligning the final CVD determination in this investigation with the final determination in the companion AD investigation of aluminum sheet from Turkey based on a request made by the Aluminum Association Common Alloy Aluminum Sheet Trade Enforcement Working Group and its individual members, Aleris Rolled Products, Inc., Arconic, Inc., Constellium Rolled Products Ravenswood, LLC, JW Aluminum Company, Novelis Corporation, and Texarkana Aluminum, Inc. (the petitioners).
In accordance with section 703(e)(1) of the Act, Commerce preliminarily determines that critical circumstances exist with respect to imports of aluminum sheet from Turkey for Assan Aluminyum Sanayi ve Ticaret A.S. (Assan), but do not exist with respect to Teknik Aluminyum Sanayi A.S. (Teknik) or for all other exporters or producers not individually examined. For a full description of the methodology and results of Commerce's analysis, see the Preliminary Decision Memorandum.
Sections 703(d) and 705(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall determine an estimated all-others rate for companies not individually examined. This rate shall be an amount equal to the weighted average of the estimated subsidy rates established for those companies individually examined, excluding any zero and
In this investigation, Commerce preliminarily found a
Consistent with section 703(b)(4)(A) of the Act, Commerce has disregarded Teknik's de minimis rate. Commerce preliminarily determines that the following estimated countervailable subsidy rates exist:
In accordance with section 703(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise as described in the scope of the investigation entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Section 703(e)(2) of the Act provides that, given an affirmative determination of critical circumstances, any suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the later of: (a) The date which is 90 days before the date on which the suspension of liquidation was first ordered, or (b) the date on which the notice of initiation of the investigation was published. Commerce preliminarily finds that critical circumstances exist for imports of aluminum sheet from Turkey for Assan. In accordance with section 703(e)(2)(A) of the Act, the suspension of liquidation shall apply to unliquidated entries of subject merchandise from Assan that were entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the publication of this notice.
Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of its public announcement, or if there is no public announcement, within five days of the date of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.
All interested parties will have the opportunity to submit case and rebuttal briefs on the preliminary scope determination. The deadline to submit these comments will be established in the preliminary scope decision memorandum. Scope rebuttal briefs (which are limited to issues raised in the scope briefs) may be submitted no later than seven days after the deadline for the scope briefs. These deadlines apply to the AD and CVD aluminum sheet investigations, regardless of the deadlines of the preliminary determinations in the AD investigations.
Case briefs or other written comments on non-scope matters may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at a date and time to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
In accordance with section 703(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination.
This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is common alloy aluminum sheet (common alloy sheet), which is a flat-rolled aluminum product having a thickness of 6.3 mm or less, but greater than 0.2 mm, in coils or cut-to length, regardless of width. Common alloy sheet within the scope of this investigation includes both not clad aluminum sheet, as well as multi-alloy, clad aluminum sheet. With respect to not clad aluminum sheet, common alloy sheet is manufactured from a 1XXX-, 3XXX-, or 5XXX-series alloy as designated by the Aluminum Association. With respect to multi-alloy, clad aluminum sheet, common alloy sheet is produced from a 3XXX-series core, to which cladding layers are applied to either one or both sides of the core.
Common alloy sheet may be made to ASTM specification B209-14 but can also be made to other specifications. Regardless of specification, however, all common alloy sheet meeting the scope description is included in the scope. Subject merchandise includes common alloy sheet that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of this investigation if performed in the country of manufacture of the common alloy sheet.
Excluded from the scope of this investigation is aluminum can stock, which is suitable for use in the manufacture of aluminum beverage cans, lids of such cans, or tabs used to open such cans. Aluminum can stock is produced to gauges that range from 0.200 mm to 0.292 mm, and has an H-19, H-41, H-48, or H-391 temper. In addition, aluminum can stock has a lubricant applied to the flat surfaces of the can stock to facilitate its movement through machines used in the manufacture of beverage cans. Aluminum can stock is properly classified under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7606.12.3045 and 7606.12.3055.
Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set for the above.
Common alloy sheet is currently classifiable under HTSUS subheadings 7606.11.3060, 7606.11.6000, 7606.12.3096, 7606.12.6000, 7606.91.3095, 7606.91.6095, 7606.92.3035, and 7606.92.6095. Further, merchandise that falls within the scope of this investigation may also be entered into the United States under HTSUS subheadings 7606.11.3030, 7606.12.3015, 7606.12.3025, 7606.12.3035, 7606.12.3091, 7606.91.3055, 7606.91.6055, 7606.92.3025, 7606.92.6055, 7607.11.9090. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that countervailable subsidies are being provided to producers and exporters of common alloy aluminum sheet (aluminum sheet) from India. The period of investigation is January 1, 2019 through December 31, 2019. Interested parties are invited to comment on this preliminary determination.
Applicable August 14, 2020.
Benito Ballesteros AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-7425.
This preliminary determination is made in accordance with section 703(b) of the Tariff Act of 1930, as amended
The product covered by this investigation is aluminum sheet from India. For a complete description of the scope of this investigation,
In accordance with the
Commerce is conducting this investigation in accordance with section 701 of the Act. For each of the subsidy programs found countervailable, Commerce preliminarily determines that there is a subsidy,
Commerce notes that, in making these findings, it relied, in part, on facts available and, because Commerce finds that one or more respondents did not act to the best of their ability to respond to Commerce's requests for information, Commerce drew an adverse inference where appropriate in selecting from among the facts otherwise available.
As noted in the Preliminary Decision Memorandum, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), Commerce is aligning the final CVD determination in this investigation with the final determinations in the companion AD investigations of aluminum sheet from Bahrain, Brazil, India, and the Republic of Turkey based on a request made by the petitioners.
The petitioners submitted an allegation that critical circumstances exist with respect to imports of aluminum sheet from India.
Sections 703(d) and 705(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall determine an estimated all-others rate for companies not individually examined. This rate shall be an amount equal to the weighted average of the estimated subsidy rates established for those companies individually examined, excluding any zero and
In this investigation, Commerce calculated estimated countervailable subsidy rates individually for Hindalco and MALCO, that are not zero,
Commerce preliminarily determines that the following estimated countervailable subsidy rates exist:
In accordance with section 703(d)(1)(B) and (d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of its public announcement, or if there is no public announcement, within five days of the date of this notice, in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.
All interested parties will have the opportunity to submit case and rebuttal briefs on the preliminary scope determination. The deadline to submit these comments will be established in the preliminary scope decision memorandum. Scope rebuttal briefs (which are limited to issues raised in the scope briefs) may be submitted no later than seven days after the deadline for the scope briefs. These deadlines apply to the AD and CVD aluminum sheet investigations, regardless of the deadlines of the preliminary determinations in the AD investigations. For all scope briefs and rebuttals thereto, parties must file identical documents simultaneously on the records of all the ongoing AD and CVD aluminum sheet investigations. No new factual information or business proprietary information may be included in either scope briefs or rebuttal scope briefs.
Case briefs or other written comments on non-scope matters may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
In accordance with section 703(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination.
This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).
The product covered by this investigation is common alloy aluminum sheet, which is a flat-rolled aluminum product having a thickness of 6.3 mm or less, but greater than 0.2 mm, in coils or cut-to-length, regardless of width. Common alloy sheet within the scope of this investigation includes both not clad aluminum sheet, as well as multi-alloy, clad aluminum sheet. With respect to not clad aluminum sheet, common alloy sheet is manufactured from a IXXX-, 3XXX-, or 5XXX-series alloy as designated by the Aluminum Association. With respect to multi-alloy, clad aluminum sheet, common alloy sheet is produced from a 3XXX-series core, to which cladding layers are applied to either one or both sides of the core.
Common alloy sheet may be made to ASTM specification B209-14 but can also be made to other specifications. Regardless of specification, however, all common alloy sheet meeting the scope description is included in the scope. Subject merchandise includes common alloy sheet that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the common alloy sheet.
Excluded from the scope of this investigation is aluminum can stock, which is suitable for use in the manufacture of aluminum beverage cans, lids of such cans, or tabs used to open such cans. Aluminum can stock is produced to gauges that range from 0.200 mm to 0.292 mm, and has an H-l9, H-41, H-48, or H-391 temper. In addition, aluminum can stock has a lubricant applied to the flat surfaces of the can stock to facilitate its movement through machines used in the manufacture of beverage cans. Aluminum can stock is properly classified under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7606.12.3045 and 7606.12.3055.
Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set for the above.
Common alloy sheet is currently classifiable under HTSUS subheadings 7606.11.3060, 7606.11.6000, 7606.12.3096, 7606.12.6000, 7606.91.3095, 7606.91.6095, 7606.92.3035, and 7606.92.6095. Further, merchandise that falls within the scope of this investigation may also be entered into the United States under HTSUS subheadings 7606.11.3030, 7606.12.3015, 7606.12.3025, 7606.12.3035, 7606.12.3091, 7606.91.3055, 7606.91.6055, 7606.92.3025, 7606.92.6055, 7607.11.9090. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that countervailable subsidies are being provided to producers and exporters of common alloy aluminum sheet (aluminum sheet) from Brazil for the period of investigation January 1, 2019 through December 31, 2019. Interested parties are invited to comment on this preliminary determination.
Applicable August 14, 2020.
Jonathan Hall-Eastman, Samuel Brummitt, or Benjamin Smith, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1468; (202) 482-7851; or (202) 482-2181 respectively.
This preliminary determination is made in accordance with section 703(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on April 7, 2020.
The product covered by this investigation is aluminum sheet from Brazil. For a complete description of the scope of this investigation,
In accordance with the
Commerce is conducting this investigation in accordance with section 701 of the Act. For each of the subsidy programs found countervailable, Commerce preliminarily determines that there is a subsidy,
As noted in the Preliminary Decision Memorandum, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), Commerce is aligning the final CVD determination in this investigation with the final determination in the companion AD investigation of common alloy aluminum sheet from Brazil based on a request made by the Aluminum Association Common Alloy Aluminum Sheet Trade Enforcement Working Group and its Individual Members, Aleris Rolled Products, Inc., Arconic, Inc., Constellium Rolled Products Ravenswood, LLC, JW Aluminum Company, Novelis Corporation, and Texarkana Aluminum, Inc. (collectively, the petitioners).
Sections 703(d) and 705(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall
In this investigation, Commerce preliminarily found a
Commerce preliminarily determines that the following estimated countervailable subsidy rates exist:
In
Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of its public announcement, or if there is no public announcement, within five days of the date of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.
All interested parties will have the opportunity to submit case and rebuttal briefs on the preliminary scope determination. The deadline to submit these comments will be established in the preliminary scope decision memorandum. Scope rebuttal briefs (which are limited to issues raised in the scope briefs) may be submitted no later than seven days after the deadline for the scope briefs. These deadlines apply to the AD and CVD aluminum sheet investigations, regardless of the deadlines of the preliminary determinations in the AD investigations. For all scope briefs and rebuttals thereto, parties must file identical documents simultaneously on the records of all the ongoing AD and CVD aluminum sheet investigations. No new factual information or business proprietary information may be included in either scope briefs or rebuttal scope briefs.
Case briefs or other written comments on non-scope matters may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
In accordance with section 703(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination.
This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is aluminum common alloy sheet (aluminum sheet), which is a flat-rolled aluminum product having a thickness of 6.3 mm or less, but greater than 0.2 mm, in coils or cut-to-length, regardless of width. Aluminum sheet within the scope of this investigation includes both not clad aluminum sheet, as well as multi-alloy, clad aluminum sheet. With respect to not clad aluminum sheet, aluminum sheet is manufactured from a 1XXX-, 3XXX-, or 5XXX-series alloy as designated by the Aluminum Association. With respect to multi-alloy, clad aluminum sheet, aluminum sheet is produced from a 3XXX-series core, to which cladding layers are applied to either one or both sides of the core.
Aluminum sheet may be made to ASTM specification B209-14—but can also be made to other specifications. Regardless of specification, however, all aluminum sheet meeting the scope description is included in the scope. Subject merchandise includes aluminum sheet that has been further processed in a third country, including but
Excluded from the scope of this investigation is aluminum can stock, which is suitable for use in the manufacture of aluminum beverage cans, lids of such cans, or tabs used to open such cans. Aluminum can stock is produced to gauges that range from 0.200 mm to 0.292 mm, and has an H-19, H-41, H-48, or H-391 temper. In addition, aluminum can stock has a lubricant applied to the flat surfaces of the can stock to facilitate its Start Printed Page 2159 movement through machines used in the manufacture of beverage cans. Aluminum can stock is properly classified under HTSUS subheadings 7606.12.3045 and 7606.12.3055.
Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set for the above.
Aluminum sheet is currently classifiable under HTSUS subheadings 7606.11.3060, 7606.1l 6000, 7606.12.3096, 7606.12.6000, 7606.91.3095, 7606.9.6095, 7606.92.3035, and 7606.92.6095. Further, merchandise that falls within the scope of this investigation may also be entered into the United States under HTSUS subheadings 7606.11.3030, 7606.12.3015, 7606.12.3025, 7606.12.3035, 7606.12.3091, 7606.91.3055, 7606.91.6055, 7606.92.3025, 7606.92.6055, 7607.11.9090. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that countervailable subsidies are being provided to producers and exporters of common alloy aluminum sheet (aluminum sheet) from Bahrain. The period of investigation is January 1, 2019 to December 31, 2019. Interested parties are invited to comment on this preliminary determination.
Applicable August 14, 2020.
Thomas Schauer, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0410.
This preliminary determination is made in accordance with section 703(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on April 7, 2020.
The product covered by this investigation is aluminum sheet from Bahrain. For a complete description of the scope of this investigation,
In accordance with the
Commerce is conducting this investigation in accordance with section 701 of the Act. For each of the subsidy programs found countervailable, Commerce preliminarily determines that there is a subsidy,
As noted in the Preliminary Decision Memorandum, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), Commerce is aligning the final CVD determination in this investigation with the final determination in the companion AD investigation of aluminum sheet from Bahrain based on a request made by the Aluminum Association Common Alloy Aluminum Sheet Trade Enforcement Working Group and its Individual Members, Aleris Rolled Products, Inc., Arconic, Inc., Constellium Rolled Products Ravenswood, LLC, JW Aluminum Company, Novelis Corporation, and Texarkana Aluminum, Inc. (collectively, the petitioners).
Sections 703(d) and 705(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall determine an estimated all-others rate for companies not individually examined. This rate shall be an amount equal to the weighted average of the estimated subsidy rates established for those companies individually examined, excluding any zero and
In this investigation, Commerce calculated an individual estimated countervailable subsidy rate for Gulf Aluminium Rolling Mill B.S.C. (GARMCO), the only individually examined exporter/producer in this investigation. Because the only individually calculated rate is not zero,
Commerce preliminarily determines that the following estimated countervailable subsidy rates exist:
In accordance with section 703(d)(1)(B) and (d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of its public announcement, or if there is no public announcement, within five days of the date of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.
All interested parties will have the opportunity to submit case and rebuttal briefs on the preliminary scope determination. The deadline to submit these comments will be established in the preliminary scope decision memorandum. Scope rebuttal briefs (which are limited to issues raised in the scope briefs) may be submitted no later than seven days after the deadline for the scope briefs. These deadlines apply to the AD and CVD aluminum sheet investigations, regardless of the deadlines of the preliminary determinations in the AD investigations. For all scope briefs and rebuttals thereto, parties must file identical documents simultaneously on the records of all the ongoing AD and CVD aluminum sheet investigations. No new factual information or business proprietary information may be included in either scope briefs or rebuttal scope briefs.
Case briefs or other written comments on non-scope matters may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at a date and time to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
In accordance with section 703(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination.
This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is common alloy aluminum sheet (common alloy sheet), which is a flat-rolled aluminum product having a thickness of 6.3 mm or less, but greater than 0.2 mm, in coils or cut-to length, regardless of width. Common alloy sheet within the scope of this investigation includes both not clad aluminum sheet, as well as multi-alloy, clad aluminum sheet. With respect to not clad aluminum sheet, common alloy sheet is manufactured from a 1XXX-, 3XXX-, or 5XXX-series alloy as designated by the Aluminum Association. With respect to multi-alloy, clad aluminum sheet, common alloy sheet is produced from a 3XXX-series core, to which cladding layers are applied to either one or both sides of the core.
Common alloy sheet may be made to ASTM specification B209-14 but can also be made to other specifications. Regardless of specification, however, all common alloy sheet meeting the scope description is included in the scope. Subject merchandise includes common alloy sheet that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of this investigation if performed in the country of manufacture of the common alloy sheet.
Excluded from the scope of this investigation is aluminum can stock, which is suitable for use in the manufacture of aluminum beverage cans, lids of such cans, or tabs used to open such cans. Aluminum can stock is produced to gauges that range from 0.200 mm to 0.292 mm, and has an H-19, H-41, H-48, or H-391 temper. In addition, aluminum can stock has a lubricant applied to the flat surfaces of the can stock to facilitate its movement through machines used in the manufacture of beverage cans. Aluminum can stock is properly classified under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7606.12.3045 and 7606.12.3055.
Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set for the above. Common alloy sheet is currently classifiable under HTSUS subheadings 7606.11.3060, 7606.11.6000, 7606.12.3096, 7606.12.6000, 7606.91.3095, 7606.91.6095, 7606.92.3035, and 7606.92.6095. Further, merchandise that falls within the scope of this investigation may also be entered into the United States under HTSUS subheadings 7606.11.3030, 7606.12.3015, 7606.12.3025, 7606.12.3035, 7606.12.3091, 7606.91.3055, 7606.91.6055, 7606.92.3025, 7606.92.6055, 7607.11.9090. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public online meeting.
The Pacific Fishery Management Council's (Pacific Council) Budget Committee will hold a meeting to consider budget issues as outlined in the Budget Committee agenda for the September 2020 Council Meeting.
The online meeting will be held Wednesday, September 2, 2020, at 10 a.m. Pacific Daylight Time.
This meeting will be held online. To attend the meeting, you may join the meeting by going to the RingCentral website:
Patricia Crouse, Administrative Officer, Pacific Council; telephone: (503) 820-2408.
The purpose of this meeting is to consider and develop recommendations to the Pacific Council for the September 2020 Pacific Council meeting, particularly the Fiscal Matters agenda item.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
16 U.S.C 1801
Dated: August 11, 2020.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Groundfish Subcommittee of the Pacific Fishery Management Council's (Pacific Council's) Scientific and Statistical Committee (SSC) will hold an online meeting to plan a later methodology review of elasmobranch harvest control rules and management reference points. The meeting is open to the public.
The SSC Groundfish Subcommittee online meeting will be held Wednesday, September 2, 2020 and will begin at 1:30 p.m. and continue until 3:30 p.m. Pacific Daylight Time or until business for the day has been completed.
The SSC's Groundfish Subcommittee meeting will be held online. Specific meeting information, including directions on how to join the
Mr. John DeVore, Staff Officer, Pacific Fishery Management Council; telephone: (503) 820-2413.
The purpose of the SSC Groundfish Subcommittee meeting is to plan for a later methodology review of harvest control rules (HCRs) and management reference points for managing West Coast elasmobranch species in the Pacific Council process. The SSC Groundfish Subcommittee will plan the timing of the subsequent methodology review and the analyses needed to evaluate HCRs and management reference points to be used in deciding elasmobranch harvest specifications beginning in 2023.
No management actions will be decided by the SSC's Groundfish Subcommittee. The SSC Groundfish Subcommittee members' role will be development of a plan for a subsequent methodology review of elasmobranch HCRs and management reference points and a report for consideration by the SSC and Pacific Council at their September and/or November 2020 meetings.
Although nonemergency issues not contained in the meeting agendas may be discussed, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent of the SSC Groundfish Subcommittee to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (503) 820-2412 at least 10 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of its Citizen Science Operations Committee via webinar.
The Citizen Science Operations Committee meeting will be held via webinar on Monday, August 31, 2020, from 2 p.m. until 4 p.m.
Julia Byrd, Citizen Science Program Manager, SAFMC; phone: (843) 302-8439 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The Citizen Science Operations Committee serves as advisors to the Council's Citizen Science Program. Committee members include representatives from the Council's Citizen Science Advisory Panel, NOAA Fisheries' Southeast Regional Office, NOAA Fisheries' Southeast Fisheries Science Center, and the Council's Science and Statistical Committee. Their responsibilities include developing programmatic recommendations, reviewing policies, providing program direction/multi-partner support, identifying citizen science research needs, and providing general advice.
Agenda items include:
1. Discussion of the Citizen Science Program evaluation, including Program evaluation plan options and draft evaluation questions. The Committee will provide recommendations as appropriate;
2. Citizen Science Program update;
3. Other Business.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Pacific Council) Ad Hoc Ecosystem Workgroup (EWG) will hold an online meeting, which is open to the public.
The online meeting will be held Friday, August 28, 2020, from 10 a.m. to 11 a.m. or until business is completed.
This meeting will be held online. Specific meeting information, including directions on how to join the meeting and system requirements will be provided in the meeting announcement on the Pacific Council's website (see
Kit Dahl, Staff Officer, Pacific Council; telephone: (503) 820-2422.
The primary purpose of the EWG online meeting is to prepare for the Pacific Council's September 2020 meeting. The EWG will discuss items related to the Fishery Ecosystem Plan and administrative Pacific Council agenda items. A detailed agenda for the online meeting will be available on the Pacific Council's website prior to the meeting. The EWG may also address other assignments relating to ecosystem issues. No management actions will be decided by the EWG.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of webconference.
The North Pacific Fishery Management Council (Council) Scientific and Statistical Committee Subgroup (SSC Subgroup) will be held on August 28, 2020.
The meeting will be held on Friday, August 28, 2020, from 9 a.m. to 3 p.m., Alaska Time.
The meeting will be a webconference. Join online through the link at
Diana Evans, Council staff; email:
The SSC Subgroup will receive presentations from AFSC staff on planning for the 2021 Alaska surveys, and will discuss recommendations. The agenda is subject to change, and the latest version will be posted at
You can attend the meeting online using a computer, tablet, or smart phone; or by phone only. Connection information will be posted online at:
The SSC Subgroup will provide a short period for oral public testimony, public comment letters should be submitted electronically to
The meeting is physically accessible to people with disabilities. Requests should be directed to Shannon Gleason at (907) 903-3107 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for information.
NMFS announces the initiation of a 5-year review for the southern right whale (
To allow us adequate time to conduct this review, we must receive your information no later than October 13, 2020.
You may submit information on this document, identified by NOAA-NMFS-2020-0114, by either of the following methods:
•
•
Heather Austin at the above address, by phone at (301) 427-8422 or
This notice announces our review of the southern right whale (
Background information on the species is available on the NMFS website at:
To ensure that the reviews are complete and based on the best available scientific and commercial information, we are soliciting new information from the public, governmental agencies, Tribes, the scientific community, industry, environmental entities, and any other interested parties concerning the status of
If you wish to provide information for the review, you may submit your information and materials electronically or via mail (see
16 U.S.C. 1531
Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
Notice of Federal Advisory Committee meeting.
DoD is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Advisory Committee on Military Personnel Testing will take place.
Day 1—Open to the public Thursday, September 17, 2020 from 12:00 p.m. to 5:00 p.m., Eastern Time.
Day 2—Open to the public Friday, September 18, 2020 from 12:00 p.m. to 5:00 p.m., Eastern Time.
Virtual, Microsoft Teams, Link
Designated Federal Officer, Dr. Sofiya Velgach, 703-697-9271 (Voice), 703-614-9272 (Facsimile),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 Code of Federal Regulations (CFR) 102-3.140 and 102-3.150.
The agenda includes an overview of development timelines, test development strategies, test development status updates, and planned work and research.
Abbreviations key:
Mississippi River Commission
9:00 a.m., August 24, 2020.
On board
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the St. Louis and Memphis Districts; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
9:00 a.m., August 26, 2020.
On board
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the Memphis District; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
9:00 a.m., August 28, 2020.
On board
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the Vicksburg District; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
Mr. Charles A. Camillo, telephone 601-634-7023.
Office of Elementary and Secondary Education, Department of Education.
Final requirement.
The Department of Education (Department) amends program requirement (a) in the Fiscal Year (FY) 2018 notice inviting applications (NIA) for the Statewide Family Engagement Centers (SFEC) program, Catalog of Federal Domestic Assistance (CFDA) number 84.310A. This final requirement provides current grantees the opportunity to request, on an annual basis, a reduction in their required 15 percent matching contribution in a project year due to economic circumstances related to the Novel Coronavirus Disease 2019 (COVID-19) pandemic.
August 14, 2020.
Ms. Beth Yeh, U.S. Department of Education, 400 Maryland Avenue SW, Room 3E335, Washington, DC 20202. Telephone: (202) 205-5798. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Sections 4501-4506 of the ESEA (20 U.S.C. 7241-46).
The Department is therefore providing flexibility for grantees to request, on an annual basis, a reduction of the matching requirement in a project year due to economic circumstances related to the COVID-19 pandemic. Recognizing that, in securing matching contributions, grantees might continue to experience the economic effects of the pandemic after it has subsided, the Department will consider requests for up to one fiscal year following the fiscal year in which the national emergency declaration concerning the pandemic, issued on March 13, 2020, under the National Emergencies Act, is lifted.
Each grantee must contribute non-Federal matching funds or in-kind donations equal to at least 15 percent of its SFEC grant award in project years two through five.
At its discretion, in response to a request from the grantee, the Department may reduce the percentage of the required non-Federal matching contribution for a grantee for the current project year (
The request must be addressed to Beth Yeh at
All information in the NIA for this grant program remains the same, except for the flexibility to request a reduction in the 15 percent matching program requirement.
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed requirements. However, the APA provides that an agency is not required to conduct notice and comment rulemaking when the agency for good cause finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). Here, there is good cause to waive notice and comment rulemaking, because going through the full rulemaking process would delay the Department's ability to provide relief to grantees requesting a reduction of their matching requirements in year two and subsequent years of the grant.
The good cause exception is appropriate “in emergency situations or where delay could result in serious harm.”
The COVID-19 pandemic has escalated at a rapid pace and scale, resulting in extraordinary circumstances including widespread school closures and financial hardship in the nonprofit sector. Some grantees are having trouble meeting their matching requirements in year two due to financial difficulties of nonprofit organizations and reprogramming of nonprofit funds to focus on COVID-19. They may also have difficulties meeting their matching requirement in subsequent years. Due to the emergency nature of this situation, there is not time for notice and comment rulemaking. By allowing grantees to request a lower matching requirement, they will be able to continue to address the objectives in their grants, which are especially important during this difficult time for families, including financial hardship and virtual learning.
The APA also generally requires that regulations be published at least 30 days before their effective date but excepts from that requirement rules that grant or recognize an exemption or relieve a restriction (5 U.S.C. 553(d)(1)). Because this requirement relieves restrictions on the required matching funds, this exception to the delayed effective date under the APA applies.
Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f)(1) of Executive Order 12866.
Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2020, any new incremental costs associated with a significant regulatory action must be fully offset by the elimination of existing costs through deregulatory actions. Because the final regulatory action is not significant, the requirements of Executive Order 13771 do not apply. Pursuant to the Congressional Review Act (5 U.S.C. 801
We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things, and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing this final requirement only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this final regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.
In accordance with the Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
The Department recognizes that SFEC grantees provide resources to support and improve parent and family engagement in education, which now more than ever is of critical importance. We also understand that matching requirements serve the significant purpose of leveraging non-Federal resources to increase the impact of Federal grantmaking. However, given the extraordinary economic circumstances surrounding the COVID-19 pandemic, the Department believes we must provide flexibility to SFEC grantees to request and implement a reduced matching contribution where needed. Absent this regulatory action, the Department would be obligated to take appropriate enforcement action against a grantee that fails to comply with the 15 percent matching requirement, which could include reducing the grantee's continuation award or terminating its grant. Such actions if taken would inflict greater harm on program beneficiaries than would adjustments to the provision of project services occasioned by a reduced matching contribution.
Based on currently available information, the Department estimates that two of the 12 SFEC grantees will request a match reduction for the current fiscal year (project year two), to one percent.
The Regulatory Flexibility Act does not apply to this rulemaking because there is good cause to waive notice and comment under 5 U.S.C. 553.
This final regulatory action does not create any new information collection requirements.
You may also access documents of the Department published in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of meeting.
The Department of Energy (“DOE”) announces a meeting via webinar of the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC). The Federal Advisory Committee Act requires that agencies publish notice of an advisory committee meeting in the
DOE will hold a webinar on Tuesday, September 22, 2020 from 1 p.m. to 5 p.m.
Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's website:
John Cymbalsky, ASRAC Designated Federal Officer, U.S. Department of Energy, Building Technologies Program, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-1692. Email:
The primary focus of this meeting will be the discussion and prioritization of topic areas on which ASRAC can assist the Appliance and Equipment Standards Program. DOE plans to hold this webinar to gather advice and recommendations on the development of standards and test procedures for consumer products and commercial and industrial equipment. (The final agenda will be available for public viewing at
The time and date of the webinar are listed in the
Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email:
Participants are responsible for ensuring their systems are compatible with the webinar software.
This document of the Department of Energy was signed on August 10, 2020, by Alexander N. Fitzsimmons, Deputy Assistant Secretary for Energy Efficiency, 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
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice.
In this notice, the U.S. Department of Energy (DOE) is forecasting the representative average unit costs of five residential energy sources for the year 2020 pursuant to the Energy Policy and Conservation Act (Act). The five sources are electricity, natural gas, No. 2 heating oil, propane, and kerosene.
The representative average unit costs of energy contained in this notice will become effective September 14, 2020 and will remain in effect until further notice.
John Cymbalsky, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy Forrestal Building, Mail Station EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121, (202) 287-1692,
Francine Pinto, Esq. U.S. Department of Energy, Office of General Counsel Forrestal Building, Mail Station GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0103, (202) 586-7432,
Section 323 of the Energy Policy and Conservation Act requires that DOE prescribe test procedures for the measurement of the estimated annual operating costs or other measures of energy consumption for certain consumer products specified in the Act. (42 U.S.C. 6293(b)(3)) These test procedures are found in Title 10 of the Code of Federal Regulations (CFR) part 430, subpart B.
Section 323(b)(3) of the Act requires that the estimated annual operating costs of a covered product be calculated from measurements of energy use in a representative average use cycle or period of use and from representative average unit costs of the energy needed to operate such product during such cycle. (42 U.S.C. 6293(b)(3)) The section further requires that DOE provide information to manufacturers regarding the representative average unit costs of energy. (42 U.S.C. 6293(b)(4)) This cost information should be used by manufacturers to meet their obligations under section 323(c) of the Act. Most notably, these costs are used to comply with Federal Trade Commission (FTC)
DOE last published representative average unit costs of residential energy in a
On September 14, 2020, the cost figures published in this notice will become effective and supersede those cost figures published on March 8, 2019. The cost figures set forth in this notice will be effective until further notice.
DOE's Energy Information Administration (EIA) has developed the 2020 representative average unit after-tax residential costs found in this notice. These costs for electricity, natural gas, No. 2 heating oil, and propane are based on simulations used to produce the July 2020, EIA
The 2020 representative average unit costs under section 323(b)(4) of the Act are set forth in Table 1, and will become effective September 14, 2020. They will remain in effect until further notice.
This document of the Department of Energy was signed on August 10, 2020, by Daniel R Simmons, 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
Take notice that on August 6, 2020, pursuant to Rule 207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure and section 284.501 of the Commission's regulations, Southwest Gas Storage Company (Southwest Gas Storage) filed a petition requesting that the Commission issue a declaratory order granting Southwest Gas Storage authorization to charge market-based rates for the natural gas storage services performed at its Borchers North Storage Field in Kansas and North Hopeton Storage Field in Oklahoma, all as more fully explained in the petition.
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, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
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
On July 23, 2020, Federal Energy Regulatory Commission (Commission) staff convened a technical conference to discuss technical and market issues prompted by growing interest in hybrid resources.
All interested persons are invited to file post-technical conference comments to address issues raised during the technical conference and identified in the Supplemental Notice of Technical Conference issued July 13, 2020. For reference, the questions included in the Supplemental Notice are included below. Commenters need not answer all of the questions, but commenters are encouraged to organize responses using the numbering and order in the below questions. Commenters are also invited to reference material previously filed in this docket but are encouraged to avoid repetition or replication of previous material. Comments must be submitted on or before 45 days from the date of this Notice.
Comments may be filed electronically via the internet.
1. While this conference uses the term hybrid resources to refer to resources consisting of a generation resource and an electric storage resource paired together, we recognize that these resources can be configured differently, from the generation resource and energy storage resource being located at the same facility but operating separately (“co-located”) to the generating facility and energy storage facility operating as one “hybrid” resource. How are these two terms used in the industry? What configurations are most common, and are there new configurations emerging?
2. What are some of the indicators of increasing interest by developers in hybrid resources? Where and in what circumstances does interest in hybrid resources appear to be greater? Approximately what percentage of interconnection requests for resources in interconnection queues are composed of hybrid resources? Has there been an increase in requests by hybrid resource developers to participate in energy, capacity and ancillary services markets operated by RTOs/ISOs?
3. How have the economics underlying hybrid technologies changed over the last three to five years? What future trends do you anticipate in this regard? Given these anticipated future trends, please comment on how you anticipate hybrid resources might be configured going forward. How could these changes impact interconnection requests?
4. We understand that increasing numbers of hybrid resources are participating as a single resource in energy, capacity and ancillary services markets operated by RTOs/ISOs. What are the advantages to the hybrid resource participating as a single resource? What are the disadvantages?
5. What factors are driving developers' decisions in how to configure hybrid resources? For example, what factors do developers consider when deciding to either charge the storage component of the hybrid resource solely from a co-located generation resource or to charge from the grid? In addition, alternating current coupling and direct current coupling are two technical options for interconnection of hybrid or co-located resources. What factors influence developers to choose one form of coupling over another?
6. How can an interconnection customer in your region propose to interconnect a resource composed of two or more resource types, operated as a single resource at a single point of interconnection? What are the advantages and disadvantages of pairing resource types into a single interconnection request?
7. What are the benefits and challenges of adding an energy storage resource to an existing generation resource? What are the benefits and challenges of adding an energy storage resource to an existing interconnection request that is already in an interconnection queue? What additional studies would be required to do this, and would the process be the same or different depending on whether the addition is to an existing generation resource or to an existing interconnection request? Also, with respect to the addition of an energy storage resource to an existing generation resource, would the new storage resource be subject to the full interconnection study process, and, if so, would any aspect of the request or study process differ from a traditional interconnection request for a new generating facility? Under what circumstances would the addition of an energy storage resource to an existing interconnection request be considered a material modification that would require the interconnection customer to go through the interconnection process again or obtain a new queue position? Please describe how this request would be processed.
8. How is the maximum output of a hybrid resource calculated currently? How is the interconnection service request sized? For example, is it sized to the combined maximum output of each of the hybrid components, limited to a level of output that corresponds to how the resource is expected to operate, or some other amount?
9. If a hybrid resource opts not to be studied to charge from the grid, is the resource allowed to later change its decision? If so, is this change or possibility reflected in an interconnection agreement? If so, how? If a hybrid resource seeks to make this type of change, is there a requirement that the resource undergo an additional study or studies?
10. Are hybrid resources able to participate in the energy, capacity and ancillary services markets operated by RTOs/ISOs using existing frameworks or market rules? If so, how do they participate? Are market rule changes needed to enable the participation of hybrid resources? Are RTOs/ISOs exploring market rule changes, and if so, what changes are they pursuing?
11. Hybrid resources consisting of more than one technology type could potentially participate in the market as the separate component parts, or as a single integrated hybrid resource. Should hybrid resources have a choice of whether to participate in the energy, capacity and ancillary services markets operated by RTOs/ISOs as each of the resource types or as a single resource type? If so, why is this flexibility important?
12. Does operating a hybrid resource as separate components (
13. What is the current ability of RTOs/ISOs to model hybrid resources? Is there a preferred approach?
14. Hybrid resources with certain characteristics may be able to provide essential reliability services. For example, when configured with advanced controls, these resources may be able to provide fast frequency response and dynamic voltage regulation. What considerations (
15. In some cases, RTOs/ISOs require variable energy resources to provide data and forecasts of resource production based on weather and other factors. Would the same requirements apply to hybrid resources with a variable energy resource component, or how may these requirements differ?
16. Are existing dispatch systems in the RTOs/ISOs capable of dispatching hybrid resources as a single resource? What are the challenges and/or limitations of such dispatch?
17. What are the technical considerations regarding state of charge of the electric storage component of hybrid resources? Are there different factors pertaining to state of charge that are dependent on whether the resource is co-located or is operates as a single integrated hybrid resource?
18. Do existing RTO/ISO market power mitigation rules appropriately recognize the particular operating characteristics of hybrid resources?
19. Are there established best practices for metering a hybrid resource for participation in wholesale markets? For example, with one meter, or with multiple meters that provide visibility into individual subcomponents or inverters, or some other configuration?
20. What are any other potential implications, advantages, and concerns for RTOs/ISOs regarding hybrid resources?
21. How do RTOs/ISOs currently calculate the capacity value of resources? Would those methods accommodate the characteristics of hybrid resources, or would new or modified methods be needed?
22. If new or modified methods are needed, how should the capacity value, including any seasonal variations, be determined for hybrid resources?
23. If an interconnection customer proposes to add an additional resource to an already existing resource or an existing interconnection request, should the capacity value of the existing resource or the existing interconnection request be modified? Why or why not? What options exist for determining such changes to capacity value?
24. What is the status of efforts in the RTOs/ISOs to define Effective Load Carrying Capability for hybrid resources?
For more information about this Notice, please contact: Kaitlin Johnson (Technical Information), Office of Energy Policy and Innovation, (202) 502-8542,
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on August 6, 2020, pursuant to Rule 207(a)(2) of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207(a)(2) (2019), Targa NGL Pipeline Company LLC (Targa), filed a declaratory order petition seeking approval of the rate structure, terms of service, and prorationing methodology for a new committed service on its mixed natural gas liquids (NGLs) pipeline system from points in Oklahoma to Mont Belvieu, Texas, including an approximately 110 mile extension thereof (the Pipeline Extension,). Targa is developing the Pipeline Extension to enable it to transport NGLs from a planned interconnection with new third party-owned pipeline facilities in Kingfisher County, Oklahoma to Targa's affiliate's storage facilities at Mont Belvieu, Texas, all as more fully explained in the petition.
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, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the eFiling link at
This filing is accessible on-line at
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Request for nominations; extension of nomination period.
On April 1, 2020, the U.S. Environmental Protection Agency (EPA) invited nominations of scientific experts from a diverse range of disciplines to be considered for appointment to the EPA Science Advisory Board (SAB) and four SAB standing committees described in this notice. On April 15, a federal district court vacated the grants policy articulated in EPA's 2017 federal advisory committee membership directive. In light of that intervening decision, the EPA is extending the nomination period until August 31, 2020. Appointments will be announced by the Administrator and are anticipated to be filled by the start of Fiscal Year 2021 (October 2020).
Nominations should be submitted in time to arrive no later than August 31, 2020.
On April 15, the U.S. District Court for the Southern District of New York (SDNY) vacated Section 1 of EPA's 2017 federal advisory committee membership directive (2017 Directive), which announced “a requirement that no member of an EPA federal advisory committee be currently in receipt of EPA grants.” As a result of the vacatur, Section 1 is no longer in effect and EPA is following the relevant policies as they existed before the 2017 Directive. However, because the SAB was still seeking nominations when the SDNY vacated Section 1, EPA is reopening the SAB's membership solicitations and accepting further nominations.
The SAB Staff Office is especially interested in scientists in the disciplines described above who have knowledge and experience in
The SAB Staff Office is also seeking nominations of experts for possible vacancies on four SAB standing committees: The Agricultural Science Committee, the Chemical Assessment Advisory Committee; the Drinking Water Committee; and the Radiation Advisory Committee.
(1) The SAB Agricultural Science Committee (ASC) provides advice to the chartered SAB on matters that have been determined to have a significant direct impact on farming and agriculture-related industries. The SAB Staff Office invites the nomination of scientists with expertise in one or more of the following disciplines:
(2) The SAB Chemical Assessment Advisory Committee (CAAC) provides advice through the chartered SAB regarding selected toxicological reviews of environmental chemicals. The SAB Staff Office invites the nomination of scientists with experience in chemical assessments and expertise in one or more of the following disciplines:
(3) The SAB Drinking Water Committee (DWC) provides advice on the scientific and technical aspects of EPA's national drinking water program. The SAB Staff Office is seeking nominations of experts with experience on drinking water issues. Members should have expertise in one or more of the following disciplines:
(4) The Radiation Advisory Committee (RAC) provides advice on radiation protection, radiation science, and radiation risk assessment. The SAB Staff Office invites the nomination of experts to serve on the RAC with demonstrated expertise in the following disciplines
As the SAB and its standing committees and ad-hoc panels undertake specific advisory activities, the SAB Staff Office will consider two additional criteria for each new activity: Absence of financial conflicts of interest and absence of an appearance of a loss of impartiality.
Nominators are asked to identify the specific committee for which nominee is to be considered. The following information should be provided on the nomination form: Contact information for the person making the nomination; contact information for the nominee; the disciplinary and specific areas of expertise of the nominee; the nominee's
Candidates invited to serve will be asked to submit the “Confidential Financial Disclosure Form for Special Government Employees Serving on Federal Advisory Committees at the U.S. Environmental Protection Agency” (EPA Form 3110-48). This confidential form allows EPA to determine whether there is a statutory conflict between that person's public responsibilities as a Special Government Employee and private interests and activities, or the appearance of a loss of impartiality, as defined by Federal regulation. The form may be viewed and downloaded through the “Ethics Requirements for Advisors” link on the SAB home page at
Tuesday, August 18, 2020, 1:00 p.m. Eastern Time.
Because of the COVID-19 pandemic, the meeting will be held as an audio-only conference. The public may observe/listen to the audio-only conference by following the instructions that will be posted on
The meeting will be open to the public.
The following item will be considered at the meeting: Notice of Proposed Rulemaking on Conciliation.
Please telephone (202) 663-7100 (voice) or email
Bernadette B. Wilson, Executive Officer on (202) 663-4077.
Tuesday, August 18, 2020 AT 10:00 a.m.
1050 First Street NE, Washington, DC (This meeting will be a virtual meeting).
This meeting will be closed to the public.
Compliance matters pursuant to 52 U.S.C. 30109.
Matters relating to internal personnel decisions, or internal rules and practices.
Information for which disclosure would constitute an unwarranted invasion of privacy.
Investigatory records compiled for law enforcement purposes and production would disclose investigative techniques.
Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action.
Matters concerning participation in civil actions or proceedings or arbitration.
Judith Ingram, Press Officer Telephone: (202) 694-1220.
August 18, 2020; 10:00 a.m.
800 N Capitol Street NW, First Floor Hearing Room, Washington, DC.
Closed.
Closed Session.
1. Enforcement Process and Pending Matters.
Rachel Dickon, Secretary, (202) 523-5725.
General Services Administration (GSA).
Notice of availability.
This notice announces the availability of the Final Environmental Assessment (EA) for the proposed Appraisers Building and U.S. Custom House Limited Scope Repair & Alteration Project, San Francisco, California. The Final EA analyzes the potential environmental impacts resulting from proposed limited scope repairs and alterations associated with the Appraisers Building (630 Sansome Street) and U.S. Custom House (555 Battery Street). The proposed action would repair, modify, or replace certain building improvements and systems to improve certain building systems to current building code and safety standards, as well as to prolong their useful life. Based on its finding of no significant impacts, GSA has determined that an Environmental Impact Statement need not be prepared.
The availability period for the Final EA ends on September 30th, 2020.
The Final EA is available electronically for public review at
Questions or comments concerning the Final EA should be directed to: Osmahn Kadri, Regional Environmental Quality Advisor/NEPA Project Manager, c/o Melanie Hernandez, 169 Saxony Road, Suite 214, Encinitas, CA 92024, or via email to
Osmahn Kadri, Regional Environmental Quality Advisor/NEPA Project Manager, GSA, at
The Project is located at 630 Sansome Street (Appraisers Building) and 555 Battery Street (U.S. Custom House), San Francisco, California. The Project involves two adjacent historical buildings in Downtown San Francisco, California—the Appraisers Building located at 630 Sansome Street, and the U.S. Custom House located at 555 Battery Street. The Project is proposed in order to improve certain systems of the Appraisers Building and U.S. Custom House up to current building code, safety standards and serviceable condition and to prolong their useful life. Both buildings contain certain building elements and building systems that, due to age, advancement in technologies, failure, or need for operational upgrades, must be addressed.
The Final EA analyzes an Action Alternative and a No Action Alternative. The Action Alternative would repair, modify, or replace certain building improvements and systems to improve certain building systems to current building code and safety standards, as well as to prolong their useful life. The limited scope repairs would address deficiencies in the following categories: Electrical; Fire Protection; Architectural Barriers Act Accessibility Standard (ABAAS) Compliance; Curtain Walls; Windows; Roofing; Overhang Canopy; Elevators; Exterior Cladding; Subbasement Water Intrusion; Building Systems—Mechanical & Plumbing; and Window Washing System. Under the No Action Alternative, the limited scope repairs and alterations to the existing Appraisers Building and U.S. Custom House would not occur.
The Draft EA was made publicly available on January 31, 2020 for a 30-day period. The public review period closed on March 2, 2020. The Notice of Availability for the Draft EA was published in the
After careful consideration of the environmental analysis and associated environmental effects of the Proposed Action Alternative and No Action Alternative, the purpose and need for the Project, and no comments received on the Draft EA, GSA will be implementing the Proposed Action Alternative.
Pursuant to the provision of GSA Order ADM 1095.1F, the PBS NEPA Desk Guide, and the regulations issued by the Council of Environmental
The environmental impacts of the proposed repairs and alterations were considered in the Final EA pursuant to the National Environmental Policy Act (NEPA) and the CEQ regulations implementing NEPA. No significant impacts on the environment would occur with implementation of best management practices and avoidance, minimization, and mitigation measures identified in the Final EA.
The Final EA and Finding of No Significant Impact (FONSI) can be viewed on the GSA website at
The FONSI will be signed thirty (30) days after the publication of this notice, provided that no information leading to the contrary finding is received or comes to light during this period.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting and request for comment.
In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC), announces the following meeting of the Advisory Committee on Immunization Practices (ACIP). This meeting is open to the public. Time will be available for public comment. The meeting will be webcast live via the World Wide Web.
The meeting will be held on September 22, 2020 from 10:00 a.m. to 4:00 p.m., EDT (times subject to change).
Written comments must be received on or before September 23, 2020.
For more information on ACIP please visit the ACIP website:
You may submit comments, identified by Docket No. CDC-2020-0093 by any of the following methods:
•
•
Stephanie Thomas, ACIP Committee Management Specialist, Centers for Disease Control and Prevention, National Center for Immunization and Respiratory Diseases, 1600 Clifton Road, NE, MS-H24-8, Atlanta, GA 30329-4027; Telephone: 404-639-8367; Email:
Interested persons or organizations are invited to participate by submitting written views, recommendations, and data. Comments received are part of the public record and are subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. If you include your name, contact information, or other information that identifies you in the body of your comments, that information will be on public display. CDC will review all submissions and may choose to redact, or withhold, submissions containing private or proprietary information such as Social Security numbers, medical information, inappropriate language, or duplicate/near duplicate examples of a mass-mail campaign. CDC will carefully consider all comments submitted into the docket. CDC does not accept comment by email.
If the number of persons requesting to speak is greater than can be reasonably accommodated during the scheduled time, CDC will conduct a lottery to determine the speakers for the scheduled public comment session. CDC staff will notify individuals regarding their request to speak by email by September 18, 2020. To accommodate the significant interest in participation in the oral public comment session of ACIP meetings, each speaker will be limited to 3
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by September 14, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at website address at
2. Call the Reports Clearance Office at (410) 786-1326.
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
Based upon CMS' experience in the MLR data collection and evaluation process, CMS is updating its annual burden hour estimates to reflect the actual numbers of submissions, rebates and rebate notices. The 2019 MLR Reporting Form and Instructions reflect changes for the 2018 reporting year and beyond. The 2019 MLR Reporting Form and instructions are also modified to eliminate the reporting elements that were required under the risk corridors data submission requirements in 45 CFR 153.530 for the 2014 through 2016 benefit years. For 2019, it is expected that issuers will submit fewer reports and on average, send fewer notices and rebate checks in the mail to policyholders and subscribers, which will reduce burden on issuers. In addition, issuers of qualified health plans will no longer have to submit on the annual report the data for the risk corridors program established under section 1342 of the Patient Protection and Affordable Care Act.
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Food and Drug Administration, Health and Human Services (HHS).
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of two final device-specific guidance documents for the Safety and Performance Based Pathway—specifically, “Cutaneous Electrode for Recording Purposes—Performance Criteria for Safety and Performance Based Pathway; Guidance for Industry and Food and Drug Administration Staff” and “Conventional Foley Catheters—Performance Criteria for Safety and Performance Based Pathway; Guidance for Industry and Food and Drug Administration Staff.” The device-specific guidances identified in this notice were developed in accordance with the finalized guidance entitled “Safety and Performance Based Pathway.”
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidances is available for download from the internet. See the
Jason Ryans, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1613, Silver Spring, MD 20993-0002, 301-796-4908.
These device-specific guidance documents provide performance criteria for premarket notification (510(k)) submissions to support the optional Safety and Performance Based Pathway, as described in the guidance entitled “Safety and Performance Based Pathway. “
A notice of availability of the draft guidances appeared in the
These guidances are being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidances represent the current thinking of FDA on performance criteria for the “Cutaneous Electrode for Recording Purposes” and “Conventional Foley Catheters.” They do not establish any rights for any person and are not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of the guidances may do so by downloading an electronic copy from the internet. A search capability for all
These guidances contains no collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required.
However, these guidances refer to previously approved collections of information. These collections of information are subject to review by OMB under the PRA. The collections of information in the following FDA regulations and guidance have been approved by OMB as listed in the following table:
Food and Drug Administration, Health and Human Services (HHS).
Notice.
The Food and Drug Administration (FDA) is announcing an amendment to the notice of meeting of the Pediatric Advisory Committee. This meeting was announced in the
Marieann Brill, Office of the Commissioner, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5154, Silver Spring, MD 20993, 240-402-3838, or FDA Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area). Please call the Information Line for up-to-date information on this meeting.
In the
Oral presentations from the public will be scheduled between approximately 11:30 a.m. to 12:30 p.m. Eastern Time.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to the advisory committees.
Food and Drug Administration, Health and Human Services (HHS).
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by October 13, 2020.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before October 13, 2020. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
FDA's regulations in §§ 189.5 and 700.27 (21 CFR 189.5 and 700.27) set forth bovine spongiform encephalopathy (BSE)-related restrictions applicable to FDA-regulated human food and cosmetics. The regulations designate certain materials from cattle as “prohibited cattle materials,” including specified risk materials (SRMs), the small intestine of cattle not otherwise excluded from being a prohibited cattle material, material from nonambulatory disabled cattle, and mechanically separated (MS) beef. Sections 189.5(c) and 700.27(c) set forth the requirements for recordkeeping and records access for FDA-regulated human food, including dietary supplements, and cosmetics manufactured from, processed with, or otherwise containing material derived from cattle. We issued these recordkeeping regulations under the adulteration provisions in sections 402(a)(2)(C), (a)(3), (a)(4), (a)(5), 601(c), and 701(a) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 342(a)(2)(C), (a)(3), (a)(4), (a)(5), 361(c), and 371(a)). Under section 701(a) of the FD&C Act, we are authorized to issue regulations for the FD&C Act's efficient
These requirements are necessary because once materials are separated from an animal it may not be possible, without records, to know the following: (1) Whether cattle material may contain SRMs (brain, skull, eyes, trigeminal ganglia, spinal cord, vertebral column (excluding the vertebrae of the tail, the transverse processes of the thoracic and lumbar vertebrae, and the wings of the sacrum), and dorsal root ganglia from animals 30 months and older and tonsils and distal ileum of the small intestine from all animals of all ages); (2) whether the source animal for cattle material was inspected and passed; (3) whether the source animal for cattle material was nonambulatory disabled, or MS beef; and (4) whether tallow in human food or cosmetics contain less than 0.15 percent insoluble impurities.
FDA's regulations in §§ 189.5(c) and 700.27(c) require manufacturers and processors of human food and cosmetics manufactured from, processed with, or otherwise containing material from cattle establish and maintain records sufficient to demonstrate that the human food or cosmetics are not manufactured from, processed with, or otherwise contain prohibited cattle materials. These records must be retained for 2 years at the manufacturing or processing establishment or at a reasonably accessible location. Maintenance of electronic records is acceptable, and electronic records are considered to be reasonably accessible if they are accessible from an onsite location. Records required by these sections and existing records relevant to compliance with these sections must be available to FDA for inspection and copying. Existing records may be used if they contain all of the required information and are retained for the required time period.
Because we do not easily have access to records maintained at foreign establishments, FDA regulations in §§ 189.5(c)(6) and 700.27(c)(6), respectively, require that when filing for entry with U.S. Customs and Border Protection, the importer of record of human food or cosmetics manufactured from, processed with, or otherwise containing, cattle material must affirm that the human food or cosmetics were manufactured from, processed with, or otherwise contains, cattle material and must affirm that the human food or cosmetics were manufactured in accordance with the applicable requirements of §§ 189.5 or 700.27. In addition, if human food or cosmetics were manufactured from, processed with, or otherwise contains cattle material, the importer of record must provide within 5 business days records sufficient to demonstrate that the human food or cosmetics were not manufactured from, processed with, or otherwise contains prohibited cattle material, if requested.
Under FDA's regulations, we may designate a country from which cattle materials inspected and passed for human consumption are not considered prohibited cattle materials, and their use does not render human food or cosmetics adulterated. Sections 189.5(e) and 700.27(e) provide that a country seeking to be designated must send a written request to the Director of the Center for Food Safety and Applied Nutrition. The information the country is required to submit includes information about a country's BSE case history, risk factors, measures to prevent the introduction and transmission of BSE, and any other information relevant to determining whether SRMs, the small intestine of cattle not otherwise excluded from being a prohibited cattle material, material from nonambulatory disabled cattle, or MS beef from the country seeking designation should be considered prohibited cattle materials. We use the information to determine whether to grant a request for designation and to impose conditions if a request is granted.
Sections 189.5 and 700.27 further state that countries designated under §§ 189.5(e) and 700.27(e) will be subject to future review by FDA to determine whether their designations remain appropriate. As part of this process, we may ask designated countries to confirm their BSE situation and the information submitted by them, in support of their original application, has remained unchanged. We may revoke a country's designation if we determine that it is no longer appropriate. Therefore, designated countries may respond to periodic FDA requests by submitting information to confirm their designations remain appropriate. We use the information to ensure their designations remain appropriate.
We estimate the burden of this collection of information as follows:
Based on a review of the information collection since our last request for OMB approval, we have made no adjustments to our burden estimate.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with of the Paperwork Reduction Act of 1995, HRSA has 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 within 30 days of this notice no later than September 14, 2020.
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 the HRSA Information Collection Clearance Officer at
A 60-day Notice was published in the
Office of the Secretary, Health and Human Services (HHS).
Notice.
Findings of research misconduct have been made against Rahul Dev Jayant, Ph.D. (Respondent), Assistant Professor Pharmaceutical Sciences, School of Pharmacy, Texas Tech University Health Science Center (TTUHSC). Dr. Jayant engaged in research misconduct in research supported by U.S. Public Health Service (PHS) funds, specifically National Institute on Drug Abuse (NIDA), National Institutes of Health (NIH), grant R03 DA044877. The administrative actions, including supervision for a period of three (3) years, were implemented beginning on July 27, 2020, and are detailed below.
Elisabeth A. Handley, Director, Office of Research Integrity, 1101 Wootton Parkway, Suite 240, Rockville, MD 20852, (240) 453-8200.
Notice is hereby given that the Office of Research Integrity (ORI) has taken final action in the following case:
ORI found that Respondent engaged in research misconduct by intentionally plagiarizing, falsifying, and/or fabricating data included in the following grant applications submitted for PHS funds:
• R21 DA051845-01, “DAT-CNS Organoid-Chip Model to Characterize the Effects of Buprenorphine on Fetal Neurodevelopment,” submitted to NIDA, NIH, on October 16, 2019.
• R01 DA051894-01, “Novel 3D Printed CNS-Organoid Chip Model to Elucidate HAND,” submitted to NIDA, NIH, on November 12, 2019.
• R21 DA052445-01, “3D Printed Microfluidic Chip Cerebral Organoids (3D-MCCO) to Decode Neurodevelopmental Deficits with Oxycodone Exposure,” submitted to NIDA, NIH, on February 10, 2020.
• R21 AA028877-01, “3D Printed CNS-Organoid Chip Model to Identify Biomarkers for Prenatal Alcohol Exposure,” submitted to the National Institute on Alcohol Abuse and Alcoholism (NIAAA), NIH, on February 13, 2020.
ORI found that Respondent engaged in research misconduct by intentionally:
• Plagiarizing four (4) images of brain organoids and one (1) graph from
• Plagiarizing one (1) image of brain organoids from
• Falsifying and fabricating three (3) figures representing experiments measuring caspase3 expression in human brain organoids by reusing data from one experiment to represent different experimental treatments in Figure 4Bii of R21 DA051845-01, Figure 4iv of R21 DA052445-01, and Figure 3iii of R21 DA051894-01.
• Fabricating nine (9) bar graphs representing experiments measuring gene expression in control and experimental samples of human brain organoids treated with drugs of abuse in Figures 2i and 3i-iii of R21 DA051894-01, Figures 3ii, 4Ai-ii, and 4Bii of R21 AA028877-01, Figures 3ii and 4i-iii of R21 DA052445-01, and Figures 4A, 4Bi, and 5 of R21 DA051845-01.
Specifically, ORI found that Respondent intentionally:
• Plagiarized confocal images of immuno-stained samples of human brain organoids from Figure 4 of
• Plagiarized confocal images of immuno-stained samples of human brain organoids from Figure 1e of
• Plagiarized the graph in Figure 2iv in R01 DA051894-01 representing measurements of gene expression and associated statistics in cultured human brain organoids. The source of the plagiarized graph is unknown.
• Plagiarized the graph in Figure 2iv in R01 DA051894-01 representing measurements of gene expression and associated statistics in cultured human brain organoids. The source of the plagiarized graph is unknown.
• Falsified and fabricated control and experimental data representing measurements of caspase3 mRNA expression in human brain organoids treated with drugs of abuse. The identical images were falsely relabeled to represent different experimental treatments that were never done. The identical panels are:
• Falsified Figure 4Bi in R21 AA028877-01 to represent control and experimental data measuring neurite outgrowth in cultured human neurons treated with ethanol. The panels in Figure 4Bi in R21 DA051894-01, labeled as control or treated with 10ng/ml Tat for 1 or 7 days, are identical to those in Figure 4Bi in R21 AA028877-01, which were falsely relabeled as control or treated with 10 or 40 mM EtOH.
• Fabricated quantitative data and associated statistics representing measurements of gene expression levels in cultured human brain organoids over time or treated with drugs of abuse.
The fabricated bar graphs are:
Dr. Jayant entered into a Voluntary Settlement Agreement and agreed to the following:
(1) Respondent agreed to have his research supervised for a period of three (3) years beginning on July 27, 2020. Respondent agreed that prior to the submission of an application for PHS support for a research project on which Respondent's participation is proposed
(2) The requirements for Respondent's supervision plan are as follows:
i. A committee of 2-3 senior faculty members at the institution who are familiar with Respondent's field of research, but not including Respondent's supervisor or collaborators, will provide oversight and guidance for three (3) years from the effective date of the Agreement. The committee will review primary data from Respondent's laboratory on a quarterly basis and submit a report to ORI at six (6) month intervals, setting forth the committee meeting dates and Respondent's compliance with appropriate research standards and confirming the integrity of Respondent's research.
ii. The committee will conduct an advance review of any PHS grant applications (including supplements, resubmissions, etc.), manuscripts reporting PHS-funded research submitted for publication, and abstracts. The review will include a discussion with Respondent of the primary data represented in those documents and will include a certification to ORI that the data presented in the proposed application/publication is supported by the research record.
(3) Respondent agreed that for a period of three (3) years beginning on July 27, 2020, any institution employing him shall submit, in conjunction with each application of PHS funds, or report, manuscript, or abstract involving PHS-supported research in which Respondent is involved, a certification to ORI that the data provided by Respondent are based on actual experiments or are otherwise legitimately derived and that the data, procedures, and methodology are accurately reported in the application, report, manuscript, or abstract.
(4) If no supervisory plan is provided to ORI, Respondent agreed to provide certification to ORI at the conclusion of the supervision period that he has not engaged in, applied for, or had his name included on any application, proposal, or other request for PHS funds without prior notification to ORI.
(5) Respondent agreed to exclude himself voluntarily from serving in any advisory capacity to PHS including, but not limited to, service on any PHS advisory committee, board, and/or peer review committee, or as a consultant for a period of three (3) years, beginning on July 27, 2020.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Cancer Institute Council of Research Advocates.
The meeting will be held as a virtual meeting and is open to the public. Individuals who plan to view the virtual meeting and need special assistance or other reasonable accommodations to view the meeting, should notify the Contact Person listed below in advance of the meeting. The meeting will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page: NCRA:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Center for Advancing Translational Sciences Advisory Council.
The meeting will be open to the public as indicated below, viewing virtually by WebEx. Individuals can register to view and access the meeting by the links below:
1. Go to “Event Status” on the left-hand side of page, then click “Register”. On the registration form, enter your information and then click “Submit” to complete the required registration.
2. You will receive a personalized email with the live event link.
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.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to Public Law 92-463, notice is hereby given that the Substance Abuse and Mental Health Services Administration's (SAMHSA) Center for Substance Abuse Prevention's (CSAP) Drug Testing Advisory Board (DTAB) will convene via web conference on September 1st, 2020, from 10:00 a.m. EDT to 5:30 p.m. EDT.
The board will meet in open-session September 1st, 2020, from 10:00 a.m. EDT to 1:00 p.m. EDT to discuss the Mandatory Guidelines for Federal Workplace Drug Testing Programs with updates from the Department of Transportation and the Nuclear Regulatory Commission. Other discussion topic include an update on marijuana studies and efforts. The board will meet in closed-session on September 1st, 2020, from 2:00 p.m. EDT to 5:30 p.m. EDT to discuss confidential issues surrounding the proposed Mandatory Guidelines for Federal Workplace Drug Testing Programs (hair), preliminary and unpublished studies from the Johns Hopkins University Behavioral Pharmacology Research Unit (BPRU), additional drugs (fentanyl and methadone) that may be tested for in the future, and lastly, emerging issues on marijuana. Therefore, the portion of the meeting on September 1st, 2020, from 2:00 p.m. EDT to 5:30 p.m. EDT, is closed to the public, as determined by the Assistant Secretary for Mental Health and Substance Use, SAMHSA, in accordance with 5 U.S.C. 552b(c)(4) and (9)(B), and 5 U.S.C. App. 2, Section 10(d).
Meeting registration information can be completed at
Office of the Assistant Secretary for Policy Development and Research, HUD.
Notice of Fiscal Year (FY) 2021 Fair Market Rents (FMRs).
Section 8(c)(1) of the United States Housing Act of 1937 (USHA), as amended by the Housing Opportunities Through Modernization Act of 2016 (HOTMA), requires the Secretary to publish FMRs not less than annually, adjusted to be effective on October 1 of each federal fiscal year (FFY). This notice describes the methods used to calculate the FY 2021 FMRs and enumerates the procedures for Public Housing Agencies (PHAs) and other interested parties to request reevaluations of their FMRs as required by HOTMA. The trend factors used in the FY 2021 FMRs include updated economic assumptions to reflect the economic downturn caused by the COVID-19 pandemic.
HUD invites interested persons to submit comments regarding the FMRs and to request reevaluation of the FY 2021 FMRs to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW, Room 10276, Washington, DC 20410-0001. Communications must refer to the above docket number and title and should contain the information specified in the “Request for Comments/Request for Reevaluation” section. There are two methods for submitting public comments.
1.
2.
For technical information on the methodology used to develop FMRs or a listing of all FMRs, please call the HUD USER information line at 800-245-2691 or access the information on the HUD USER website
Questions related to use of FMRs or voucher payment standards should be directed to the respective local HUD program staff. Questions on how to conduct FMR surveys may be addressed to Marie L. Lihn or Peter B. Kahn of the Program Parameters and Research Division, Office of Economic Affairs, Office of Policy Development and Research at HUD headquarters, 451 7th Street SW, Room 8208, Washington, DC 20410; telephone number 202-402-2409 (this is not a toll-free number), or they may be reached at
Section 8 of the USHA (42 U.S.C. 1437f) authorizes housing assistance to aid lower-income families in renting safe and decent housing. Housing assistance payments are limited by FMRs established by HUD for different geographic areas. In the Housing Choice
Section 8(c)(1) of the USHA, as amended by HOTMA (Pub. L. 114-201, approved July 29, 2016), requires the Secretary of HUD to publish FMRs not less than annually. Section 8(c)(1)(A) states that each FMR “shall be adjusted to be effective on October 1 of each year to reflect changes, based on the most recent available data trended so the rentals will be current for the year to which they apply . . .” Section 8(c)(1)(B) requires that HUD publish, not less than annually, new FMRs on the World Wide Web or in any other manner specified by the Secretary, and that HUD must also notify the public of when it publishes FMRs by
This section provides a brief overview of how HUD computes the FY 2021 FMRs. HUD is making no changes to the estimation methodology for FMRs as used by HUD for the FY 2020 FMRs. For complete information on how HUD derives each area's FMRs, see the online documentation at
In conjunction with the use of 2018 American Community Survey (ACS) data, HUD has implemented the following geography change, the designation of the two counties comprising newly created Twin Falls, ID MSA as metropolitan counties. These two counties will be designated as Twin Falls County, ID HUD Metro FMR Area and Jerome County, ID HUD Metro FMR Area. Although the FMRs for these counties will be calculated separately, the metropolitan area designation impacts the FMR calculations since the areas will use the Idaho metropolitan state-based recent mover factor instead of the Idaho state non-metropolitan recent mover factor.
For FY 2021 FMRs, HUD uses the U.S. Census Bureau's 5-year ACS data collected between 2014 and 2018 and released in December 2019 as the base rents for the FMR calculations. The ACS data released at the end of 2019 is the most current ACS data available at the time the FY 2021 FMRs are calculated. HUD pairs a “margin of error” test
For areas in which the 5-year ACS data for two-bedroom, standard quality gross rents do not pass the statistical reliability tests (
HUD has updated base rents each year using annually updated 5-year data made available since FY 2012. HUD also updates base rents for Puerto Rico FMRs using data collected between 2014 and 2018 through the Puerto Rico Community Survey (PRCS); HUD first updated the Puerto Rico base rents in FY 2014 based on 2007-2011 PRCS data collected through the ACS program.
HUD historically based FMRs on gross rents for recent movers (those who have moved into their current residence in the last 24 months) measured directly. However, due to the way Census constructs the 5-year ACS data, HUD developed a new method for calculating recent-mover FMRs in FY 2012, which HUD continues to use in FY 2021. Under this method, HUD assigns all areas a base rent, which is the two-bedroom standard quality 5-year gross rent estimate from the ACS; then, because HUD's regulations mandate that FMRs must be published as recent mover gross rents, HUD applies a recent-mover factor to the base rents assigned from the 5-year ACS data.
Following the assignment of the standard quality two-bedroom rent described above, HUD applies a recent-mover factor to these rents. HUD calculates the recent-mover factor as the change between the 5-year 2014-2018 standard quality two-bedroom gross rent and the 1-year 2018 recent mover gross rent for the recent mover factor area. HUD does not allow recent-mover factors to lower the standard quality base rent; therefore, if the 5-year standard quality rent is larger than the comparable 1-year recent mover rent, the recent-mover factor is set to 1 so the base rent is updated and trended. When the recent-mover factor is greater than one, the base rent is effectively replaced with the recent-mover rent for that area and that is what is updated and trended. For virtually all metropolitan areas, one-year recent-mover data is the basis for the updated and trended FMRs.
The calculation of the recent-mover factor for FY 2021 continues to use statistical reliability requirements that are similar to those for base rents. That is, for a recent-mover gross rent estimate to be considered statistically reliable, the estimate must have a margin of error ratio that is less than 50 percent, and the estimate must be based on 100 or more observations.
When an FMR area does not have statistically reliable two-bedroom recent-mover data, the “all-bedroom” 1-year recent-mover ACS data for the FMR area is tested for statistical reliability.
However, where statistically reliable “all-bedroom” data is not available, HUD will continue to base FMR areas' recent-mover factors on larger geographic areas, following the same procedures used historically: HUD tests data from differently sized geographic areas in the following order (from small to large), and bases the recent-mover factor on the first statistically reliable recent-mover rent estimate in the geographic hierarchy listed below.
• For metropolitan areas that are sub-areas of larger metropolitan areas, the order is the FMR area, metropolitan area, aggregated metropolitan parts of the state, and state.
• For metropolitan areas that are not divided, the order is the FMR area, aggregated metropolitan parts of the state, and state.
• In non-metropolitan areas, the order is the FMR area, aggregated non-metropolitan parts of the state, and state.
The process for calculating each area's recent mover factor is detailed in the FY 2021 FMR documentation system available at:
HUD calculated base rents for the insular areas using data collected during the 2010 decennial census of American Samoa, Guam, the Northern Mariana Islands, and the Virgin Islands beginning with the FY 2016 FMRs.
HUD does not use ACS data to establish the base rent or recent-mover factor for 21 areas where the FY 2021 FMRs are based on locally collected survey data which are more recent than the 2018 ACS. For larger metropolitan areas that have valid ACS one-year recent-mover data, survey data may not be any older than the mid-point of the calendar year for the ACS one-year data. Since the ACS one-year data used for the FY 2021 FMRs is from 2018, larger areas may not use survey data collected before June 30, 2018 for the FY 2021 FMRs. Smaller areas without statistically reliable 1-year ACS data may continue to use local survey data until the mid-point of the 5-year ACS data is more recent than the local survey. The following list enumerates the areas with local areas surveys and the year of the survey data:
• Survey data from 2017 is used to adjust the FMRs for Hood River County, OR; Wasco County, OR; Hawaii County, HI; and Jonesboro, AR HMFA.
• Survey data from 2018 is used to adjust the FMR for Portland-Vancouver-Hillsboro, OR-WA; Burlington-South Burlington, VT; Coos County, OR; Curry County, OR; Oakland-Fremont, CA HUD Metro FMR Area; San Francisco, CA HUD Metro FMR Area; San Jose-Sunnyvale-Santa Clara, CA HUD Metro FMR Area; Boston-Cambridge-Quincy, MA-NH HUD Metro FMR Area; Douglas County, OR; and San Diego-Carlsbad, CA MSA.
• Survey data from 2019 is used to adjust the FMRs for Kauai County, HI; Asheville, NC HUD Metro FMR Area; Eugene-Springfield, OR MSA; Portland, ME HUD Metro FMR Area; Santa Maria-Santa Barbara, CA MSA; Worcester, MA HUD Metro FMR Area; and Guam.
• Survey data from 2020 is used to calculate the FMRs for Santa Cruz-Watsonville, CA MSA.
HUD updates the ACS-based “as of” 2018 rent through 2019 using the annual change in gross rents measured through the Consumer Price Index (CPI) from 2018 to 2019 (CPI update factor). As in previous years, HUD uses local CPI data coupled with Consumer Expenditure Survey data for FMR areas within Class A metropolitan areas covered by local CPI data. In 2018, the Bureau of Labor Statistics (BLS) changed the area definitions of its Class A metropolitan areas from the 1990 definition of Consolidated Metropolitan Statistical Areas (CMSA) to smaller Core-Based Statistical Area (CBSA) MSAs. In addition, BLS eliminated some areas from this Class A collection: Pittsburgh, PA MSA; Cleveland-Elyria, OH MSA; Cincinnati, OH-KY-IN MSA; Kansas City, MO-KS MSA; Milwaukee-Waukesha-West Allis, WI MSA; and Portland-Vancouver-Hillsboro, OR-WA MSA. HUD estimated these areas' FMRs using regional CPI beginning with the FY 2020 FMRs and continues the use of regional CPI factors in FY 2021. HUD uses CPI data aggregated at the Census region level for all Class B and C size metropolitan areas and non-metropolitan areas. Additionally, HUD uses CPI data collected locally in Puerto Rico as the basis for CPI adjustments from 2018 to 2019 for all Puerto Rico FMR areas.
Following the application of the appropriate CPI update factor, HUD trends the gross rent estimate from 2019 to FY 2021 using local and regional forecasts of the CPI gross rent data. Riverside-San Bernardino-Ontario, CA MSA as a newly designated Class A city (it was previously part of the Los Angeles-Riverside-Orange County, CA CMSA) has data for a CPI update factor, but does not have enough data for a trend factor forecast; therefore, until there is sufficient history to create a
HUD updates the bedroom ratios used in the calculation of FMRs annually. The bedroom ratios which HUD used in the calculation of FY 2021 FMRs have been updated using average data from three five-year ACS data series (2012-2016, 2013-2017, and 2014-2018). The bedroom ratio methodology used in this update is unchanged from previous calculations using 2000 Census data. HUD only uses estimates with a margin of error ratio of less than 50 percent. If an area does not have reliable estimates in at least two of the previous three ACS releases, bedroom ratios for the area's larger parent geography are used.
HUD uses two-bedroom units for its primary calculation of FMR estimates. This is generally the most common size of rental unit and, therefore, the most reliable to survey and analyze. After estimating two-bedroom FMRs, HUD calculates bedroom ratios for each FMR area which relate the prices of smaller and larger units to the cost of two-bedroom units. To ensure an adequate distributional fit in these bedroom ratio calculations in particular FMR areas, HUD establishes bedroom interval ranges which set upper and lower limits for bedroom ratios nationwide, based on an analysis of the range of such intervals for all areas with large enough samples to permit accurate bedroom ratio determinations.
In the calculation of FY 2021 FMR estimates, HUD set the bedroom interval ranges as follows: Efficiency FMRs are constrained to fall between 0.66 and 0.86 of the two-bedroom FMR; one-bedroom FMRs must be between 0.76 and 0.88 of the two-bedroom FMR; three-bedroom FMRs (prior to the adjustments described below) must be between 1.14 and 1.32 of the two-bedroom FMR; and four-bedroom FMRs (again, prior to adjustment) must be between 1.26 and 1.61 of the two-bedroom FMR. Given that these interval ranges partially overlap across unit bedroom counts, HUD further adjusts bedroom ratios for a given FMR area, if necessary, to ensure that higher bedroom-count units have higher rents than lower bedroom-count units within that area. The bedroom ratios for Puerto Rico follow these constraints.
HUD also further adjusts the rents for three-bedroom and larger units to reflect HUD's policy to set higher rents for these units.
HUD derives FMRs for units with more than four bedrooms by adding 15 percent to the four-bedroom FMR for each extra bedroom. For example, the FMR for a five-bedroom unit is 1.15 times the four-bedroom FMR, and the FMR for a six-bedroom unit is 1.30 times the four-bedroom FMR. Similarly, HUD derives FMRs for single-room occupancy units by subtracting 25 percent from the zero-bedroom FMR (
Within the Small Area FMR final rule published on November 16, 2016, HUD amended 24 CFR 888.113 to include a limit on the amount that FMRs may annually decrease. The current year's FMRs resulting from the application of the bedroom ratios, as discussed in section (E) above, may be no less than 90 percent of the prior year's FMRs for units with the same number of bedrooms. Accordingly, if the current year's FMRs are less than 90 percent of the prior year's FMRs as calculated by the above methodology, HUD sets the current year's FMRs equal to 90 percent of the prior year's FMRs. For areas where use of Small Area FMRs in the administration of their voucher programs is required, the FY 2021 Small Area FMRs may be no less than 90 percent of the FY 2020 Small Area FMRs. For all other metropolitan areas, for which Small Area FMRs are calculated so that they may be used for other allowable purposes if desired (
All FMRs are subject to a state or national minimum. HUD calculates a population-weighted median two-bedroom 40th percentile rent across all non-metropolitan portions of each state, which, for the purposes of FMRs, is the state minimum rent. State-minimum rents for each FMR area are available in the FY 2021 FMR Documentation System, available at
As in prior years, Small Area FMRs are subject to a maximum limit. HUD limits each two-bedroom Small Area FMR to be no more than 150 percent of the two-bedroom FMR for the metropolitan area where the ZIP code is located.
Small Area FMRs for all metropolitan areas are listed in the Small Area FMR Schedule. Other Metropolitan PHAs operating in areas where the Small Area FMR is not required to be used and interested in using Small Area FMRs in the operation of their Housing Choice Voucher program should contact their
HUD calculates Small Area FMRs directly from the standard quality gross rents provided to HUD by the Census Bureau for ZIP Code Tabulation Areas (ZCTAs), when such data is statistically reliable. The ZCTA two-bedroom equivalent 40th percentile gross rent is analogous to the standard quality base rents set for metropolitan areas and non-metropolitan counties. For each ZCTA with statistically reliable gross rent estimates, using the expanded test of statistical reliability first used in FY 2018 (
For ZCTAs without usable gross rent data by bedroom size, HUD will continue to calculate Small Area FMRs using the rent ratio method similar to that HUD has used in past Small Area FMR calculations. To calculate Small Area FMRs using a rent ratio, HUD divides the median gross rent across all bedrooms for the small area (a ZIP code) by the similar median gross rent for the metropolitan area of the ZIP code. If a ZCTA does not have reliable rent data at the all bedroom level, HUD will then check to see if the ZCTA is bordered by ZCTAs that themselves have reliable rent data. If at least half of a ZCTA's “neighbors” have such data, the weighted average of those estimates will be used as the basis for the SAFMR rather than a county proxy, where the weight is the length of the shared boundary between the ZCTA and its neighbor. In small areas where the neighboring ZCTA median gross rents are not statistically reliable, HUD continues to substitute the median gross rent for the county containing the ZIP code in the numerator of the rent ratio calculation. HUD multiplies this rent ratio by the current two-bedroom rent for the metropolitan area containing the small area to generate the current year two-bedroom rent for the small area.
HUD continues to use a rolling average of ACS data in calculating the Small Area FMR rent ratios. HUD believes coupling the most current data with previous year's data minimizes excessive year-to-year variability in Small Area FMR rent ratios due to sampling variance. Therefore, for FY 2021 Small Area FMRs, HUD has updated the rent ratios to use an average of the rent ratios calculated from the 2012-2016, 2013-2017, and 2014-2018 5-year ACS estimates.
HUD will continue to accept public comments on the methods HUD uses to calculate FY 2021 FMRs, including Small Area FMRs, and the FMR levels for specific areas. Due to its current funding levels, HUD does not have sufficient resources to conduct local surveys of rents to address comments filed regarding the FMR levels for specific areas. PHAs may continue to fund such surveys independently, as specified below, using ongoing administrative fees or their administrative fee reserve if they so choose. HUD continually strives to calculate FMRs that meet the statutory requirement of using “the most recent available data” while also serving as an effective program parameter.
PHAs or other parties interested in requesting HUD's reevaluation of their area's FY 2021 FMRs, as provided for under section 8(c)(1)(B) of USHA, must follow the following procedures:
1. By the end of the comment period, such reevaluation requests must be submitted publicly through
2. For a re-evaluation to occur, the requestor(s) must supply HUD with data more recent than the 2018 ACS data used in the calculation of the FY 2021 FMRs. HUD requires data on gross rents paid in the FMR area for standard quality rental housing units occupied by recent movers. The data delivered must be sufficient for HUD to calculate a 40th and 50th percentile two-bedroom rent.
3. On or about October 2, 2020 HUD will post a list, at
4. Data for reevaluations must be supplied to HUD no later than Friday January 8, 2021. On Monday January 11, 2021, HUD will post at
5. HUD will use the data delivered by January 8, 2021 to reevaluate the FMRs and following the reevaluation, will post revised FMRs with an accompanying
6. Any data supporting a change in FMRs supplied after January 8, 2021 will be incorporated into FY 2022 FMRs.
7. PHAs operating in areas where the calculated FMR is lower than the published FMR (
Questions on how to conduct FMR surveys may be addressed to Marie L. Lihn or Peter B. Kahn of the Program Parameters and Research Division, Office of Economic Affairs, Office of Policy Development and Research at HUD headquarters, 451 7th Street SW, Room 8208, Washington, DC 20410; telephone number 202-402-2409 (this is not a toll-free number), or they may be reached at
For small metropolitan areas without one-year ACS data and non-metropolitan counties, HUD has developed a method using mail surveys that is discussed on the FMR web page:
While HUD has not developed a specific method for mail surveys in areas with 1-year ACS data or in areas not covered by ACS data, HUD would apply the standard established for Random-Digit Dialing (RDD) telephone rent surveys. HUD will evaluate these survey results to determine whether they would establish a new FMR statistically different from the current FMR, which means that the survey confidence interval must not include the FMR. The survey should collect results based on 200 one-bedroom and two-bedroom eligible recent mover units to provide a small enough confidence interval for significant results in large market mail surveys. Areas with statistically reliable 1-year ACS data are not considered to be good candidates for local surveys due to the size and completeness of the ACS process.
Other survey methods are acceptable in providing data to support reevaluation requests if the survey method can provide statistically reliable, unbiased estimates of gross rents paid of the entire FMR area. In general, recommendations for FMR changes and supporting data must reflect the rent levels that exist within the entire FMR area and should be statistically reliable.
PHAs in non-metropolitan areas may survey three-bedroom units, in addition to one- and two-bedroom units and are only required to get 100 eligible survey responses. In certain circumstances, PHAs may conduct surveys of groups of non-metropolitan counties. HUD must approve all county-grouped surveys in advance. PHAs are cautioned that the resulting FMRs may not be identical for the counties surveyed; each individual FMR area will have a separate FMR based on the relationship of rents in that area to the combined rents in the cluster of FMR areas. In addition, PHAs are advised that in counties where FMRs are based on the combined rents in the cluster of FMR areas, HUD will not revise their FMRs unless the grouped survey results show a revised FMR statistically different from the combined rent level.
Survey samples should preferably be randomly drawn from a complete list of rental units for the FMR area. If this is not feasible, the selected sample must be drawn to be statistically representative of the entire rental housing stock of the FMR area. Surveys must include units at all rent levels and be representative by structure type (including single-family, duplex, and other small rental properties), age of housing unit, and geographic location. The current 5-year ACS data should be used as a means of verifying if a sample is representative of the FMR area's rental housing stock. Staff from HUD's Program Parameters and Research Division will work with PHAs in areas requesting reevaluations to provide the minimum number of survey cases required to ensure that data submitted for reevaluation represent a statistically valid sample.
A PHA or contractor that cannot obtain the recommended number of sample responses after reasonable efforts should consult with HUD before abandoning its survey; in such situations, HUD may find it appropriate to relax normal sample size requirements, but in no case will fewer than 100 eligible cases be considered.
HUD has developed guidance on how to provide data-supported comments on Small Area FMRs using HUD's special tabulations of the distribution of gross rents by unit bedroom count for ZIP Code Tabulation Areas. This guidance is available at
As stated earlier in this notice, HUD is required to use the most recent data available when calculating FMRs. Therefore, in order to reevaluate an area's FMR, HUD requires more current rental market data than the 2018 ACS. HUD encourages a PHA or other interested party that believes the FMR in their area is incorrect to file a comment even if they do not have the resources to provide market-wide rental data. In these instances, HUD will use the comments, should survey funding be restored, when determining the areas HUD will select for HUD-funded local area rent surveys.
This Notice involves the establishment of FMR schedules, which do not constitute a development decision affecting the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this Notice is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Accordingly, the Fair Market Rent Schedules, which will not be codified in 24 CFR part 888, are available at
a.
b.
The specific counties and New England towns and cities within each state in MSAs and HMFAs were not changed by the August 2017 OMB metropolitan area definitions. These areas are listed in Schedule B, available online at
The Metropolitan and Non-Metropolitan Area FMR Schedule s is available at
a. The Metropolitan and Non-Metropolitan FMR Area Schedule lists FMRs alphabetically by state, by metropolitan area and by non-metropolitan county within each state and are available at
b. The constituent counties (and New England towns and cities) included in each metropolitan FMR area are listed immediately following the listings of the FMR dollar amounts. All constituent parts of a metropolitan FMR area that are in more than one state can be identified by consulting the listings for each applicable state.
c. Two non-metropolitan counties are listed alphabetically on each line of the non-metropolitan county listings.
d. The New England towns and cities included in a non-metropolitan county are listed immediately following the county name.
U.S. Geological Survey, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Geological Survey (USGS) are proposing to renew an information collection.
Interested persons are invited to submit comments on or before October 13, 2020.
Send your comments on this information collection request (ICR) by mail to U.S. Geological Survey, Information Collections Officer, 12201 Sunrise Valley Drive MS 159, Reston, VA 20192; or by email to
To request additional information about this ICR, contact Elizabeth S. Sangine by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the USGS; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the USGS enhance the quality, utility, and clarity of the information to be collected; and (5) how might the USGS minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The authorities for this action are the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the Liquor Control Statute (Statute) of the Ione Band of Miwok Indians. The Statute regulates and controls the possession, sale, manufacture, and distribution of alcohol in conformity with the laws of the State of California.
This ordinance shall take effect on September 14, 2020.
Mr. Harley Long, Tribal Government Officer, Pacific Regional Office, Bureau of Indian Affairs, 2800 Cottage Way, Room W-2820, Sacramento, California 95825, telephone (916) 978-6000, fax: (916) 978-6099.
Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary-Indian Affairs. I certify that the Ione Band of Miwok Indians duly adopted the Ione Band Liquor Control Statute on March 26, 2020.
The Liquor Control Statute of the Ione Band of Miwok Indians shall read as follows:
This Statute is enacted pursuant to the Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 586, 18 U.S.C. 1161) and by powers vested in the Ione Band of Miwok Indians Tribal Council (“Tribal Council”) to promulgate and enforce civil and criminal ordinances governing the conduct, affairs, and transactions of members of the Ione Band of Miwok Indians of California (“Tribe”), and to the extent permitted by federal law, governing the conduct, affairs, and transactions of non-members of the Tribe, as authorized under Article VII, Section 1 of the Constitution of the Tribe, adopted by the Tribe on August 10, 2002, and approved by the Secretary of the Interior on September 6, 2002 (“Constitution”).
The purpose of this Statute is to regulate and control the possession, sale, manufacture and distribution of liquor within Tribal Trust Lands (as hereafter defined), in order to permit alcohol sales by tribally owned and operated enterprises and private lessees, and at tribally approved special events. Enactment of a liquor control statute will help provide a source of revenue for the continued operation of the tribal government, the delivery of governmental services, and the economic viability of tribal enterprises.
This Statute shall be known and cited as the “Ione Band Liquor Control Statute.”
This Statute shall apply to all lands now or in the future under the governmental authority of the Tribe, including Tribal Trust Lands.
By adopting this Statute, the Tribe hereby regulates the sale, distribution, and consumption of liquor while ensuring that such activity conforms with all applicable laws of the State of California as required by 18 U.S.C. 1161 and the United States.
The Tribal Council enacts this Statute, based upon the following findings:
(a) The distribution, possession, consumption and sale of liquor on the Tribal Trust Lands is a matter of special concern to the Tribe.
(b) The Tribe plans to construct and operate a gaming facility and related entertainment and lodging facilities on a portion of its Tribal Trust Lands.
(c) The Tribe's gaming facility will serve as an integral and indispensable part of the Tribe's economy, providing revenue to the Tribe's government and employment to tribal citizens and others in the local community.
(d) Federal law, as codified at 18 U.S.C. 1154 and 1161, currently prohibits the introduction of liquor into Indian country, except in accordance with State law and the duly enacted law of the Tribe.
(e) The Tribe recognizes the need for strict control and regulation of liquor transactions on Tribal Trust Lands because of potential problems associated with the unregulated or inadequate regulated sale, possession, distribution, and consumption of liquor.
(f) Regulating the possession, sale, distribution and manufacture of liquor within Tribal Trust Lands is also consistent with the Tribe's interest in ensuring the peace, safety, health, and general welfare of the Tribe and its citizens.
(g) Tribal control and regulation of liquor on Tribal Trust Lands is consistent with the Tribe's custom and tradition of controlling the possession and consumption of liquor on tribal lands and at tribal events.
(h) The purchase, distribution, and sale of liquor on Tribal Trust Lands shall take place only at duly licensed (i) tribally owned enterprises, (ii) other enterprises operating pursuant to a lease
(i) The sale or other commercial manufacture or distribution of liquor on Tribal Trust Lands, other than sales, manufacture, and distributions made in strict compliance with this Statute, is detrimental to the health, safety, and general welfare of the citizens of the Tribe, and is prohibited.
As used in this Statute, the terms below are defined as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
The introduction and possession of alcoholic beverages shall be lawful within Tribal Trust Lands; provided that such introduction or possession is in conformity with the laws of the State.
The sale of alcoholic beverages shall be lawful within Tribal Trust Lands; provided that such sales are in conformity with the laws of the State and are made pursuant to a license issued by the Tribe.
The manufacture of alcohol shall be lawful within Tribal Trust Lands, provided that such manufacture is in conformity with the laws of the State and pursuant to a license issued by the Tribe.
The legal age for possession or consumption of alcohol within Tribal Trust Lands shall be the same as that of the State, which is currently 21 years. No person under the age of 21 years shall purchase, possess or consume any alcoholic beverage. If there is any conflict between State law and the terms of the Compact, if any, regarding the age limits for alcohol possession or consumption, the age limits in the Compact shall govern for purposes of this Statute.
The Tribal Council shall have the power to establish procedures and standards for tribal licensing of liquor sales within Tribal Trust Lands, including the setting of a license fee schedule, and shall have the power to publish and enforce such standards; provided that no tribal license shall issue except upon showing of satisfactory proof that the applicant is duly licensed by the State. The fact that an applicant for a tribal license possesses a license issued by the State shall not provide the applicant with an entitlement to a tribal license. The Tribal Council may in its discretion set standards which are more, but in no case less, stringent than those of the State.
The Tribal Council shall have the power to develop, enact, promulgate and enforce regulations as necessary for the enforcement of this Statute and to protect the public health, welfare and safety of the Tribe, provided that all such regulations shall conform to and not be in conflict with any applicable tribal, federal or state law. Regulations enacted pursuant to this Statute may include provisions for suspension or revocation of tribal liquor licenses, reasonable search and seizure provisions, and civil and criminal penalties for violations of this Statute to the full extent permitted by federal law and consistent with due process.
Tribal law enforcement personnel and security personnel duly authorized by the Tribal Council shall have the authority to enforce this Statute by confiscating any liquor sold, possessed, distributed, manufactured or introduced within Tribal Trust Lands in violation of this Statute or of any regulations duly adopted pursuant to this Statute.
The Tribal Council shall have the exclusive jurisdiction to hold hearings on violations of this Statute and any procedures or regulations adopted pursuant to this Statute; to promulgate appropriate procedures governing such hearings; to determine and enforce penalties or damages for violations of this Statute; and to delegate to a subordinate hearing officer or panel the authority to take any or all of the foregoing actions on its behalf.
Nothing contained in this Statute is intended to, nor does in any way, limit or restrict the Tribe's ability to impose any tax upon the sale or consumption of alcohol. The Tribe retains the right to impose such taxes by appropriate statute to the full extent permitted by federal law.
Nothing contained in this Statute is intended to, nor does in any way, limit, alter, restrict, or waive the sovereign immunity of the Tribe or any of its agencies, agents or officials from unconsented suit or action of any kind.
All acts and transactions under this Statute shall be in conformity with the Compact, if any, and laws of the State to the extent required by 18 U.S.C. 1161 and with all Federal laws regarding alcohol in Indian Country.
This Statute shall be effective as of the date on which the Secretary certifies this Statute and publishes the same in the
All prior enactments of the Tribal Council, including tribal resolutions, policies, regulations, or statutes pertaining to the subject matter set forth in this Statute are hereby rescinded.
This Statute may only be amended pursuant to an amendment duly enacted by the Tribal Council and certification by the Secretary and publication in the
If any part or provision of this Statute is held invalid, void, or unenforceable by a court of competent jurisdiction, such adjudication shall not be held to render such provisions inapplicable to other persons or circumstances. Further, the remainder of the Statute shall not be affected and shall continue to remain in full force and effect.
Bureau of Land Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Land Management (BLM) are proposing to renew an information collection.
Interested persons are invited to submit comments on or before October 13, 2020.
Send your comments on this information collection request (ICR) by mail to the U.S. Department of the Interior, Bureau of Land Management, 1849 C Street NW, Room 2134LM, Attn. Faith Bremner, Washington, DC 20240; or by email to
To request additional information about this ICR, contact Timothy L. Barnes by email at
In accordance with the PRA and its implementing regulations at 5 CFR 1320.8(d)(1), all information collections require approval under the PRA. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) has prepared a Record of Decision (ROD) to authorize a right-of-way (ROW) and amend the 2010 Socorro Field Office Resource Management Plan (RMP) for the Borderlands Wind Project (Project) and by this notice, is announcing the availability of the ROD.
The Assistant Secretary of the Department of the Interior signed the ROD on August 3, 2020.
Copies of the ROD are available for public inspection at the Socorro Field Office, Bureau of Land Management, 901 S Hwy. 85, Socorro, New Mexico 87801 or, via the internet at the project's ePlanning page at
Virginia Alguire, BLM Socorro Field Office, 901 S Hwy. 85, Socorro, New Mexico 87801; phone (575) 838-1290, or email to
Borderlands Wind, LLC submitted an application to the BLM requesting authorization to construct, operate, maintain, and terminate an up-to-100 megawatt commercial wind energy generation facility—Borderlands Wind Project (NMNM136976), in Catron County, New Mexico, within a boundary that encompasses land managed by the BLM, the New Mexico State Land Office (NMSLO), and private landowners. The project would be located south of U.S. Route 60 in Catron County near Quemado, New Mexico, and the Arizona-New Mexico border. Authorization of this proposal requires amendments to the 2010 Socorro Field Office RMP to modify the visual resource management class in the project area and to modify a ROW avoidance area.
The Final EIS analyzed the direct, indirect and cumulative environmental impacts of the Proposed Action, Alternative 1 (optimize the proposed wind facility components in order to minimize potential environmental impacts), Alternative 2 (change in the turbine generation types), and the No Action Alternative. Alternatives 1 and 2 would be constructed and operating and maintained with the same project area. The Proposed Action and Alternative 1 would construct 40 turbines. However, because of the difference in the types of turbines, Alternative 2, the BLM Preferred Alternative would only construct 36 turbines instead of 40 turbines within the same area as Alternative 1. The No Action Alternative would be a continuation of existing conditions.
On May 27, 2020, the U.S. Treasury Department and the Internal Revenue Service issued Notice 2020-41, providing an extension of the timeframe to claim tax credits for the development of renewable energy projects, which includes wind generating facilities. On June 22, 2020, the Proponent informed the BLM it must use GE 2.3 MW turbines instead of the GE 2.5 MW turbines for the Project to obtain the full tax incentive. As a result of these new circumstances, Alternative 2A is a modified version of Alternative 2 to include the construction of 30 GE 3.0 MW and 4 GE 2.3 MW turbines instead of the 4 GE 2.5 MW turbines. Alternative 2A would not result in significant effects outside the range of effects already analyzed in the EIS because use of the 4 GE 2.3 MW turbines was already evaluated in both the Proposed Action and Alternative 1. The difference in potential impacts between Alternative 2 and Alternative 2A would not be discernable because the turbine generator model characteristics are technically similar with the exception of one physical aspect, which is the hub height on the GE 2.3 MW is 33 feet shorter than the GE 2.5 MW turbine model. The difference between the GE 2.3 MW and GE 2.5 MW turbine models are shown on Table 2-1 of the Final EIS. The environmental consequences of using the GE 2.3 MW turbines were discussed as part of the Proposed Action and Alternative 1. There are no other modifications or changes in the construction, maintenance, operation, or decommissioning activities associated with the modified Alternative 2 (known as Alternative 2A). The difference in potential impacts between the Alternative 2 and Alternative 2A are not substantial when taking two of the key resources into consideration—risks to eagles and visual resource impacts with the 33 feet hub height reduction for four turbines. Therefore, supplementation is not necessary because Alternative 2A is within the range of alternatives evaluated in the EIS and will not significantly alter the impacts from Alternative 2 as analyzed.
A Notice of Intent to prepare an EIS for the proposed Project was published in the
A Notice of Availability (NOA) to publish the Draft EIS and RMP Amendment for the proposed Project was published in the
On April 10, 2020, an NOA of the Final EIS and Proposed RMP Amendment for the Project published in the
40 CFR 1506.6, 40 CFR 1506.10.
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended, the Bureau of Land Management (BLM) has prepared a Final Environmental Impact Statement (EIS) for the Willow Master Development Plan, and by this notice is announcing its publication.
The BLM will issue a Record of Decision for the project no earlier than 30 days from the date of the Final EIS Notice of Availability published by the Environmental Protection Agency.
To access the Final EIS or to request an electronic or paper copy, please reach out to:
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Racheal Jones, Willow EIS Project Manager, telephone: 907-290-0307; address: 222 West 7th Avenue, #13, Anchorage, Alaska 99513. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The Willow Master Development Plan Final EIS analyzes an oil and gas development project proposed by ConocoPhillips Alaska, Inc. on federal oil and gas leases it holds in the northeast region of the National Petroleum Reserve in Alaska (NPR-A), as well as alternatives to the proposed project and measures to avoid and mitigate impacts to surface resources and other uses including subsistence use. The BLM has identified Alternative B and Module Delivery Option 3 as its preferred alternative. If the Willow Master Development Plan is approved, ConocoPhillips Alaska, Inc. may submit applications to build up to five drill sites, a central processing facility, an operations center pad, gravel roads, ice roads and ice pads, 1 or 2 airstrips (varies by alternative), a freshwater reservoir, an ice bridge across the Colville River to transfer facility modules into the NPR-A, pipelines, and a gravel mine site. The project would have a peak production in excess of 160,000 barrels of oil per day (with a processing capacity of 200,000 barrels of oil per day) over its approximately 30-year life, producing up to approximately 590 million total barrels of oil. The project would help offset declines in production from the North Slope oil fields and contribute to the local, state, and national economies.
40 CFR 1506.6(b).
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before August 1, 2020, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by August 31, 2020.
Comments are encouraged to be submitted electronically to
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before August 1, 2020. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State or Tribal Historic Preservation Officers:
A request for removal has been made for the following resources:
Additional documentation has been received for the following resources:
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined that there is a violation of section 337 of the Tariff Act of 1930, as amended, in the above-captioned investigation. The Commission has issued a general exclusion order (“GEO”) barring entry of certain fish-handling pliers and packaging thereof that infringe the two trademarks asserted in this investigation. The investigation is terminated.
Robert Needham, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-5468. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
The Commission instituted this investigation on July 29, 2019, based on a complaint filed by complainant United Plastic Molders, Inc. of Jackson, Mississippi (“UPM”). 84 FR 36620-21 (July 29, 2019). The complaint, as supplemented, alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain fish-handling pliers and packaging thereof by reason of infringement of claims 1-11 of U.S. Patent No. 6,256,923 (“the '923 patent”) and U.S. Trademark Registration Nos. 4,980,923 (“the '923 mark”) and 5,435,944 (“the '944 mark”).
All five Respondents defaulted. On December 18, 2019, the Commission found NOEBY, iLure, Weihai Lotus, and Five Union in default for failing to respond to the complaint and notice of investigation. Order No. 11 (Nov. 19, 2019),
On December 5, 2019, UPM moved for a summary determination of violation and for a recommendation for the issuance of a general exclusion order (“GEO”). In its motion, UPM dropped its allegations with respect to claims 2-6 and 8-11 of the '923 patent, but continued to assert claims 1 and 7 of the '923 patent. On January 3, 2020, OUII filed a motion that largely supported UPM's motion.
On April 10, 2020, the ALJ issued the subject ID, Order No. 14, granting in part UPM's motion. Specifically, the ALJ issued a summary of determination of violation finding that SamsFX, Lotus, and NOEBY violated section 337 with respect to claims 1 and 7 of the '923 patent, as well as the '923 and '944 marks; that iLure violated section 337 with respect to claims 1 and 7 of the '923 patent; and that Five Union violated section 337 with respect to the '923 mark. The ALJ also found that UPM failed to show that iLure violated section 337 with respect to the '923 and '944 marks, as the only evidence of importation predates the registration of
On May 27, 2020, the Commission determined to review in part the ID granting summary determination of a section 337 violation. 85 FR 33705-07 (Jun. 2, 2020). Specifically, the Commission determined to review the ID's finding of violation with respect to the '923 patent, the ID's finding that UPM satisfied the economic prong of the domestic industry requirement, and the ID's finding of violation with respect to Lotus and Five Union.
The Commission also requested written submissions on certain questions and the issues of remedy, the public interest, and bonding. 83 FR 51706 (Oct. 12, 2018). UPM and OUII filed initial written submissions, and OUII also filed a reply to UPM's submission. No other submissions were filed in response to the Commission notice.
Having reviewed the written submissions and the evidentiary record, the Commission has determined to: (1) Vacate the ID's finding of violation with respect to the '923 patent, as well as all other findings related solely to the '923 patent, based on that patent's expiration; (2) affirm the ALJ's findings on the economic prong of the domestic industry requirement; and (3) reverse the ID's findings of violation with respect to Five Union and Lotus based on UPM's failure to provide substantial, reliable, and probative evidence that those entities manufacture the accused SamsFX products. Based on the findings in the ID as modified above, the Commission has determined that UPM has shown a violation of section 337(a)(1)(C), 19 U.S.C. 1337(a)(1)(C), by NOEBY and SamsFX with respect to the '923 and '944 marks. The Commission finds that UPM failed to show a violation by the remaining defaulted respondents.
The Commission has determined that the appropriate remedy in this investigation is a GEO prohibiting the unlicensed importation of certain fish-handling pliers and packaging thereof that infringe the '923 and '944 marks. The Commission has further determined that the public interest factors enumerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude issuance of the GEO. Finally, the Commission has determined that a bond in the amount of one hundred (100) percent of the entered value of the imported articles that are subject to the GEO is required to permit temporary importation of the articles in question during the period of Presidential review (19 U.S.C. 1337(j)). The investigation is hereby terminated in its entirety.
The Commission's order and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance. The Commission has also notified the Secretary of the Treasury and Customs and Border Protection of the order.
The Commission vote for these determinations took place on August 10, 2020.
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).
While temporary remote operating procedures are in place in response to COVID-19, the Office of the Secretary is not able to serve parties that have not retained counsel or otherwise provided a point of contact for electronic service. Accordingly, pursuant to Commission Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the Commission orders that the Complainant(s) complete service for any party/parties without a method of electronic service noted on the attached Certificate of Service and shall file proof of service on the Electronic Document Information System (EDIS).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on July 10, 2020, under section 337 of the Tariff Act of 1930, as amended, on behalf of Juul Labs, Inc. of San Francisco, California. Supplements to the complaint were filed on July 21, 2020, and July 31, 2020. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain vaporizer cartridges and components thereof by reason of infringement of U.S. Design Patent No. D842,536 (“the 'D536 patent”); U.S. Design Patent No. D858,870 (“the 'D870 patent”); U.S. Design Patent No. D858,869 (“the 'D869 patent”); and U.S. Design Patent No. D858,868 (“the 'D868 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a general exclusion order, or in the alternative a limited exclusion order, and cease and desist orders.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of the claim of the 'D536 patent; the claim of the 'D870 patent; the claim of the 'D869 patent; and the claim of the 'D868 patent, and whether an industry in the United States exists
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “vaporizer cartridges and components thereof containing a space to hold a vaporizable liquid substance that can be vaporized after the cartridge is inserted into a vaporizer device”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Juul Labs, Inc., 560 20th Street, San Francisco, CA 94107.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainant of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On June 26, 2020, Bedford Industries Inc., Worthington, Minnesota filed petitions with the Commission and Commerce, alleging that an industry in the United States is materially injured or threatened with material injury by reason of subsidized imports of twist ties from China and LTFV imports of twist ties from China. Accordingly, effective June 26, the Commission instituted countervailing duty investigation No. 701-TA-649 and antidumping duty investigation No. 731-TA-1523 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference through written submissions to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to §§ 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on August 10, 2020. The views of the Commission are contained in USITC Publication 5104 (August 2020), entitled
By order of the Commission.
On the basis of the record
The Commission instituted this review on January 2, 2020 (85 FR 125) and determined on April 6, 2020 that it would conduct an expedited review (85 FR 42918, July 15, 2020).
The Commission made this determination pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determination in this review on August 10, 2020. The views of the Commission are contained in USITC Publication 5098 (August 2020), entitled
By order of the Commission.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Wage and Hour Division (WHD)-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
The OMB will consider all written comments that agency receives on or before September 14, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Anthony May by telephone at 202-693-4129 (this is not a toll-free number) or by email at
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) if the information will be processed and used in a timely manner; (3) 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; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) 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.
The Wage and Hour Division (WHD) of the Department of Labor (DOL) administers the Employee Polygraph Protection Act of 1988 (EPPA), 29 U.S.C. 2001
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.
DOL 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 DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
44 U.S.C. 3507(a)(1)(D).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Occupational Safety and Health Administration (OSHA)-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 agency receives on or before September 14, 2020.
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) if the information will be processed and used in a timely manner; (3) 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; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) 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.
Crystal Rennie by telephone at 202-693-0456, or by email at
Form OSHA-70 is used by applicants seeking accreditation from the OSHA to be able to test or examine certain equipment and material handling devices as required under the OSHA maritime regulations, 29 CFR part 1917 (Marine Terminals) and 29 CFR part 1918 (Longshoring). OSHA needs this information to accredit companies to inspect and provide certification for
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.
DOL 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 DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
44 U.S.C. 3507(a)(1)(D).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Wage and Hour Division (WHD)-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 agency receives on or before September 14, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Anthony May by telephone at 202-693-4129 (this is not a toll-free number) or by email at
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) if the information will be processed and used in a timely manner; (3) 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; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) 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.
The Wage and Hour Division (WHD) of the Department of Labor (DOL) administers the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. 1801
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.
DOL 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 DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice of certain Federal agency requests for records disposition authority (records schedules). We publish notice in the
NARA must receive comments by September 28, 2020.
You may submit comments by either of the following methods. You must cite the control number, which appears on the records schedule in parentheses after the name of the agency that submitted the schedule.
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Kimberly Keravuori, Regulatory and External Policy Program Manager, by email at
We are publishing notice of records schedules in which agencies propose to dispose of records they no longer need to conduct agency business. We invite public comments on these records schedules, as required by 44 U.S.C. 3303a(a), and list the schedules at the end of this notice by agency and subdivision requesting disposition authority.
In addition, this notice lists the organizational unit(s) accumulating the records or states that the schedule has agency-wide applicability. It also provides the control number assigned to each schedule, which you will need if you submit comments on that schedule.
We have uploaded the records schedules and accompanying appraisal memoranda to the
We will post comments, including any personal information and attachments, to the public docket unchanged. Because comments are public, you are responsible for ensuring that you do not include any confidential or other information that you or a third party may not wish to be publicly posted. If you want to submit a comment with confidential information or cannot otherwise use the
We will consider all comments submitted by the posted deadline and consult as needed with the Federal agency seeking the disposition authority. After considering comments, we will post on
We will post schedules on our website in the Records Control Schedule (RCS) Repository, at
Each year, Federal agencies create billions of records. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval. Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. The records schedules authorize agencies to preserve records of continuing value in the National Archives or to destroy, after a specified period, records lacking continuing administrative, legal, research, or other value. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
Agencies may not destroy Federal records without the approval of the Archivist of the United States. The Archivist grants this approval only after thorough consideration of the records' administrative use by the agency of origin, the rights of the Government and of private people directly affected by the Government's activities, and whether or not the records have historical or other value. Public review and comment on these records schedules is part of the Archivist's consideration process.
1. Department of the Air Force, Agency-wide, Base and Installation Files, 1942-1946 (DAA-AFU-2016-0001).
2. Department of Commerce, National Institute of Standards and Technology, Research Project Case Files and Research Notebooks (DAA-0167-2019-0001).
3. Department of Commerce, National Institute of Standards and Technology, Organization of Scientific Area Committees for Forensic Science (DAA-0167-2020-0002).
The National Science Board (NSB), pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Closed teleconference of the Committee on Strategy (CS) of the National Science Board, to be held Wednesday, August 19, 2020 at 3:00-3:45 p.m. EDT.
This meeting will be held by videoconference organized through the National Science Foundation.
Closed.
Chair's remarks; review and discussion of proposed CS recommendation of approval to the Board of the NSF, NSB and OIG FY 2022 budget submissions to the Office of Management and Budget (OMB).
Point of contact for this meeting is: Chris Blair, (703) 292-7000,
The National Science Board (NSB), pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Closed teleconference of the Committee on Oversight (CO) of the National Science Board, to be held Monday, August 17, 2020 at 3:00-4:00 p.m. EDT.
This meeting will be held by videoconference organized through the National Science Foundation.
Closed.
Committee Chair's opening remarks, discussion of the Office of the Inspector General's FY 2022 OMB Budget Submission, and recommendation to the Committee on Strategy.
Point of contact for this meeting is: Chris Blair, (703) 292-7000,
The National Science Board (NSB), pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Closed teleconference of the National Science Board (NSB) Committee on Strategy (CS) of the National Science Board, to be held Wednesday, August 19, 2020 at 3:45-4:00 p.m. EDT.
This meeting will be held by videoconference organized through the National Science Foundation.
Closed.
Chair's remarks; review and discussion of proposed CS recommendation of approval to the Board of the NSF, NSB and OIG FY 2022 budget submissions to the Office of Management and Budget (OMB).
Point of contact for this meeting is: Chris Blair, (703) 292-7000,
Nuclear Regulatory Commission.
Draft regulatory guide; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment draft regulatory guide (DG), DG-1363, “Setpoints for Safety-Related Instrumentation.” This DG is proposed Revision 4 of Regulatory Guide (RG) 1.105. The proposed revision describes an approach that is acceptable to the staff of the NRC to meet regulatory requirements ensuring that setpoints for safety related instrumentation are established and maintained within the technical specification limits. This proposed guide has been revised to incorporate additional information regarding American National Standards Institute (ANSI)/International Society of Automation (ISA) Standard 67.04.01-2018, “Setpoints for Nuclear Safety Related Instrumentation,” since revision 3 of RG 1.105 was issued.
Submit comments by September 14, 2020. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. This public review and comment period is 30 days in duration, although the public review and comment period for draft RGs is usually 60 days. The shortened comment period is provided because the NRC has previously interacted with stakeholders on related industry and NRC guidance and the proposed revision endorses ANSI/ISA 67.04.01-2018 without any exceptions or clarifications. As a result, the NRC does not anticipate significant public comment. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Dawnmathews Kalathiveettil, Office of Nuclear Reactor Regulation, telephone: 301-415-5905, email:
Please refer to Docket ID NRC-2020-0171 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2020-0171 in your comment submission.
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 a draft guide 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 DG, titled “Setpoints for Safety-Related Instrumentation,” is temporarily identified by its task number, DG-1363 (ADAMS Accession No. ML20055G823). The draft guide is proposed Revision 4 of Regulatory Guide 1.105. This revision of the guide (Revision 4) endorses ANSI/ISA Standard 67.04.01-2018 as a method acceptable to the NRC staff for satisfying the NRC's regulations for ensuring that: (a) Setpoints for safety-related instrumentation are established to protect plant safety and analytical limits, and (b) the maintenance of instrument channels implementing these setpoints ensures they are functioning as required, consistent with the plant technical specifications. This DG applies to licensees and applicants subject to part 50 of title 10 of the
The previous revision (Revision 3) of this RG endorsed ISA S67.04-1994, “Setpoints for Nuclear Safety-Related Instrumentation,” with several clarifications and exceptions. In July 2014, the NRC staff issued DG-1141, “Setpoints for Safety Related Instrumentation” (ADAMS Accession No. ML081630179), for public comment (79 FR 40163). This DG evaluated the 2006 revision of the standard ANSI/ISA 67.04.01, “Setpoints for Safety-Related Instrumentation.” DG-1141 described several concerns with the 2006 revision of the standard. These concerns included the need for additional definitions, analytical limit avoidance probability, use of the technical specification allowable value as a metric for determining instrument channel functionality and operability, and what to consider as an appropriate statistical confidence level. The ANSI/ISA S67.04 Standards Committee addressed these NRC staff concerns, as well as comments provided by industry stakeholders, and issued a revision to the ANSI/ISA standard in December 2018. The NRC staff elected not to finalize DG-1141 as a revision to RG 1.105 and chose instead to evaluate the 2018 ANSI/ISA standard revision for endorsement and issue DG-1363 as a replacement for DG-1141. The staff notes that DG-1363 considers and addresses technical issues and public comments related to the issuance of DG-1141.
The staff is also issuing for public comment a draft regulatory analysis (ADAMS Accession No. ML20055G824). The staff develops a regulatory analysis to assess the value of issuing or revising a regulatory guide as well as alternative courses of action.
DG-1363, if finalized, would endorse ANSI/ISA Standard 67.04.01-2018. Issuance of DG-1363, if finalized, would not constitute backfitting as defined in 10 CFR 50.109, “Backfitting,” and as described in NRC Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests”; constitute forward fitting as that term is defined and described in MD 8.4; or affect the issue finality of any approval issued under 10 CFR part 52. As explained in DG-1363, applicants and licensees would not be required to comply with the positions set forth in DG-1363.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License amendment application; opportunity to comment, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an amendment to Facility Operating License Nos. DPR-57 and NPF-5, issued to Southern Nuclear Operating Company, for operation of the Edwin I. Hatch Nuclear Plant (Hatch), Units 1 and 2, respectively. The proposed amendment would revise technical specification (TS) 3.8.1, “AC Sources—Operating,” for Hatch, Units 1 and 2, to provide for a one-time extension of the completion time for the Hatch, Unit 1, emergency diesel generators.
Submit comments by September 14, 2020. A request for a hearing or petitions for leave to intervene must be filed by October 13, 2020.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
John G. Lamb, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-3100, email:
Please refer to Docket ID NRC-2020-0184 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2020-0184 in your comment submission.
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 considering issuance of an amendment to Facility Operating License Nos. DPR-57 and NPF-5, issued to Southern Nuclear Operating Company (SNC, the licensee), for operation of the Edwin I. Hatch Nuclear Plant (Hatch), Units 1 and 2, located in Appling County, Georgia.
The proposed amendment would revise TS 3.8.1, “AC Sources—Operating,” for Hatch, Units 1 and 2, to provide a one-time extension of the completion time for the Hatch, Unit 1, emergency diesel generators.
Before any issuance of the proposed license amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and NRC's regulations.
The NRC has made a proposed determination that the license amendment request involves no significant hazards consideration. Under the NRC's regulations in section 50.92 of title 10 of the
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change provides a one-time extension of the [diesel generator] DG restoration time allowed by [technical specification] TS. This change will have no effect on accident probabilities since the DGs are not considered accident initiators. The proposed DG [allowed outage time] AOT extension does not require any physical plant modifications. Since no individual precursors of an accident are affected, the proposed amendment does not increase the probability of a previously analyzed event. The consequences of an evaluated accident are determined by the operability of plant systems designed to mitigate those consequences. The consequences of an evaluated accident with an inoperable DG is not altered by the proposed change and will not affect the consequences of an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration of the plant (
Therefore, the proposed change will not create the possibility of a new or different accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The margin of safety is related to the ability of the fission product barriers to perform their design functions during and following an accident. These barriers include the fuel cladding, the reactor coolant system, and the containment. The performance of these fission product barriers is not adversely affected by the proposed change.
The proposed change provides a risk-informed, one-time extension of the DG restoration time allowed by TS. A deterministic evaluation of the proposed completion time extension demonstrates there is sufficient margin to safety during the extended DG AOT period. During the extended DG AOT period, sufficient controls will be established to maintain the defense-in-depth design philosophy to ensure the electrical power system meets its design safety function and risk management actions will be established to maintain the risk as low as reasonably achievable within the regulatory acceptance guidelines.
Operation in accordance with the revised TS ensures that the assumptions for initial conditions of key parameter values in the safety analyses remain valid. This ensures that applicable design and performance criteria associated with the safety analysis will continue to be met and that the margin of safety is not adversely affected.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the license amendment request involves a no significant hazards consideration.
The NRC is seeking public comments on this proposed determination that the license amendment request involves no significant hazards consideration. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day notice period if the Commission concludes the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to this action, see the application for license amendment dated July 31, 2020.
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.
This Notice will be published in the
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX”) proposes to amend Rule 20.10. The text of the proposed rule change is provided below. (additions are
(a)-(c) No change.
(d) Prior Written Notice. A Member(s) and its Clearing Member(s) (to the extent that the Member is not self-clearing) must submit to the Exchange, in a manner determined by the
(g) Routine, Recurring Transfers. The off-floor transfer procedure set forth in this Rule is intended to facilitate non-routine, non-recurring movements of positions[. The off-floor transfer procedure]
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Rule 20.10 describes exceptions to the prohibition against off-floor transactions set forth in Rule 20.9, subject to certain conditions. The exception in Rule 20.10(a)(2) provides that off-floor transfers of positions are permissible if from one account to another account where no change in ownership is involved (
The proposed rule change excepts off-floor position transfers effected pursuant to Rule 20.10(a)(2) from the prior written notice requirement in paragraph (d) and from repeated, recurring use restriction in paragraph (g). Off-floor position transfers pursuant to Rule 20.10(a)(2) do not involve a change in ownership. In other words, such transfers may only occur between the same individual or legal entity. These types of transfers are merely transfers of positions from one account to another, both of which accounts are attributable to the same individual or legal entity, and thus the transferred option positions will continue to be attributable to the same person. A market participant effecting an off-floor position transfer pursuant to Rule 20.10(a)(2) is analogous to an individual transferring funds from a checking account to a savings account, or from an account at one bank to an account at another bank—the money still belongs to the same person, who is just holding it in a different account for personal financial reasons.
Because there is no change in ownership of positions transferred pursuant to Rule 20.10(a)(2), the Exchange believes it is appropriate to permit them to occur as routinely and repeatedly as a market participant would like. These transfers will continue to be subject to the prohibition on netting set forth in Rule 20.10(b), and thus may not result in the closing of any positions. While the off-floor position transfers permitted by Rule 20.10 were intended to accommodate non-routine and non-recurring transfers, the Exchange believes permitting routine, recurring off-floor position transfers that do not result in a change in ownership or reduction in open interest is consistent with the purpose of not being used to circumvent the normal auction purpose. Additionally, given that these transfers may occur on a regular basis in accordance with a market participants' business needs and procedures, the Exchange believes prior written notice would be onerous and would not serve any purpose given the lack of change in ownership and in open interest. The Exchange believes this will provide market participants with additional flexibility to structure their option position accounts as they believe is appropriate and move their positions between accounts as they deem necessary and appropriate for their business and trading needs, including for risk management purposes.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest because it will provide market participants with a more efficient process to transfer open positions between their own accounts in accordance with their own business and trading needs, including to respond to then-current market conditions. Because these transfers would not result in a change in ownership or a reduction in open interest, the Exchange believes the proposed rule change remains consistent with the purpose of Rule 20.10, which was to prohibit use of the off-floor transfer procedure in circumvention of the normal auction process, as the normal auction process involves the opening or closing of positions through a transaction among multiple market participants. Market participants may maintain different accounts for a variety of reasons, such as the structure of their businesses, the manner in which they trade, their risk management procedures, and for capital
The Exchange recognizes the numerous benefits of executing options transactions on an exchange, including price transparency, potential price improvement, and a clearing guarantee. However, the Exchange believes it is appropriate to permit position transfers among accounts of the same individual or legal entity where there is no impact on open interest to occur off the exchange, as these benefits are inapplicable to those transfers. These transfers have a narrow scope and are intended to permit market participants to achieve their own business needs. These transfers are not intended to be a competitive trading tool. There is no need for price discovery or improvement, as the transfer merely moves positions to different accounts for the same person and does not open or close any positions. These transfers will result in no change in ownership. The transactions that resulted in the open positions to be transferred pursuant to Rule 20.10(a)(2) were already guaranteed by a clearing member of The Options Clearing Corporation (“OCC”), and the positions may not be closed pursuant to the transfer and will continue to be subject to OCC rules, as they will continue to be held in an account with an OCC clearing member.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed rule change will apply to all market participants in the same manner. All market participants will be able to effect off-floor position transfers pursuant to Rule 20.10(a)(2) on a recurring or routine basis without providing the Exchange with notice of such transfers. The Exchange does not believe 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 because it relates solely to the notice required for off-floor transfers that may occur today, and the frequency with which those transfers may occur. These transfers will continue to not result in a change in ownership or netting, and thus will have no impact on outstanding option positions.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 3316 (PHLX Kill Switch) and Rule 3215 (Exchange Sharing of PSX Participant Risk Settings) Commentary to provide PSX Participants with additional optional settings and to make certain technical changes.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule changes under PSX Rule 3316 (PHLX Kill Switch) and Rule 3215 (Exchange Sharing of PSX Participant Risk Settings) Commentary is to provide PSX Participants with additional optional settings in order to assist them in their efforts to manage their risk levels and to make certain technical changes. Once the optional risk controls are set, the Exchange is authorized to take automated action if a designated risk level for a PSX Participant is exceeded. Such risk settings would provide PSX Participants with enhanced abilities to manage their risk with respect to orders on the Exchange.
The proposed pre-trade risk controls described below are meant to supplement, and not replace, the PSX Participant's own internal systems, monitoring and procedures related to risk management. For clarification, the Exchange does not guarantee that these controls will be sufficiently comprehensive to meet all of a PSX Participant's needs, nor are the controls designed to be the sole means of risk management, and using these controls will not necessarily meet a PSX Participant's obligations required by Exchange or federal rules (including, without limitation, the Rule 15c3-5 under the Act
Rule 3316(a) provides the definition of the PHLX Kill Switch, which is an optional tool offered at no charge that enables PSX Participants to establish a pre-determined level of Net Notional Risk Exposure (“NNRE”), to receive notifications as the value of executed orders approaches the NNRE level, and to have order entry ports disabled and open orders administratively cancelled when the value of executed orders exceeds the NNRE level. Most order entry ports are assigned to one MPID. In the event that multiple MPIDs are assigned to one port, only the affected MPID is disabled from the port. The NNRE, although not explicitly defined,
The Exchange is renaming the NNRE by proposing to remove references to “Net Notional Risk Exposure” and to replace them with “Gross Executed Risk Exposure”. This risk level refers to a pre-established maximum daily dollar amount for buy and sell orders across all symbols, where both buy and sell orders are counted as positive values. For purposes of calculating Gross Executed Risk Exposure, only executed orders are included. The Exchange is not changing the NNRE calculation under the proposed amendment. Rather, it will be renamed as the Gross Executed Risk Exposure. This risk setting is identical to Nasdaq Stock Market LLC (“Nasdaq”) Rule 6130(a)(1) and similar to Cboe BZX Exchange, Inc.'s (“BZX”) Interpretations and Policies .03(a)(1) of BZX Rule 11.13.
The Exchange is also proposing to add an additional risk setting titled “Gross Notional Risk Exposure,” which refers to a pre-established maximum daily dollar amount for buy and sell orders across all symbols, where both buy and sell orders are counted as positive values. For purposes of calculating Gross Notional Risk Exposure, unexecuted orders on the Exchange book and executed orders are included. This setting is identical to Nasdaq Rule 6130(a)(2) and similar to Interpretations and Policies .03(a)(2) of BZX Rule 11.13, except BZX excludes unexecuted orders and counts purchases as positive values and sales are counted negative values. Additionally, the Exchange's rule is similar to New York Stock Exchange LLC (“NYSE”) Rule 7.19(a)(5) and NYSE Arca, Inc. (“Arca”) Rule 7.19-E(a)(5), except NYSE and Arca include orders routed on arrival. While the current functionality would continue to be available, this additional proposed risk setting would allow a PSX Participant to manage its risk more comprehensively, instead of relying solely on the NNRE functionality offered today.
The Exchange also proposes to make a conforming change to Rule 3316(b) by removing “Net Notional Risk Exposure” and replacing it with “Establishing and Adjusting Levels.” The Exchange is also proposing to specify that a PSX
The Exchange is proposing under Rule 3316(c) to allow clearing members, if designated pursuant to Rule 3316(d), to receive notifications when the total value of executed orders, and if applicable, unexecuted orders associated with an MPID exceeds 50, 75, 85, 90, and 95 percent of the applicable risk level values. This rule is identical to Nasdaq Rule 6130(c) and similar to Interpretations and Policies .03(d) of BZX Rule 11.13, NYSE Rule 7.19(b)(4), and Arca Rule 7.19-E(b)(4).
A clearing member guarantees transactions executed on PSX for PSX Participants with whom it has entered into a clearing arrangement, and therefore bears the risk associated with those transactions. Because clearing members bear the risk on behalf of their PSX Participant, the Exchange believes that it is appropriate for the clearing member to have knowledge of what risk settings the PSX Participant may utilize within the Exchange's trading system, as well as the option to set and adjust the risk levels. The proposal will permit clearing members who have a financial interest in the risk settings of PSX Participants with whom the PSX Participants have entered into clearing arrangements to better monitor and manage the potential risks assumed by clearing members, thereby providing clearing members with greater control and flexibility over setting their own risk tolerance and exposure and aiding clearing members in complying with the Act. Therefore, the Exchange proposes to make the proposed optional risk settings in Phlx Rule 3316 available to clearing members, if so authorized by the PSX Participant.
Proposed Rule 3316(d) would allow for a PSX Participant that does not self-clear to allocate responsibility for establishing and adjusting the risk levels to a clearing member that clears transactions on behalf of the PSX Participant. A PSX Participant may request to sign up for the Kill Switch optional setting by contacting Nasdaq Subscriber Services or by completing a Front End Request form.
Nasdaq, BZX, NYSE and Arca also provide similar designations to its clearing members pursuant to Nasdaq Rule 6130(d), Interpretations and Policies .03(c) of BZX Rule 11.13, NYSE Rule 7.19(b)(2), and Arca Rule 7.19-E(b)(2). However, unlike NYSE and Arca, the Exchange does not allow for multiple risk level values to be in place at one time.
The Exchange also proposes to renumber current Rule 3316(d) as Rule 3316(e) and retitle it to more accurately describe the provision by removing “Operation” and replacing it with “Breach Action and Reinstatement.” Additionally, the Exchange is proposing to clarify that when a pre-established risk level is breached and the Kill Switch is triggered, it shall result in the immediate cancellation of all unexecuted orders of any type or duration entered by the PSX Participant via the affected MPID, and in the immediate prevention of order entry of any type via affected MPID. The PSX Participant or the clearing member, if designated pursuant to paragraph (d), must request reactivation of the MPID before trading will be reauthorized.
Additionally, the Exchange refers to “member” throughout Rule 3316. The term “PSX Participant” more accurately refers to the entity
As a reminder, pursuant to current Rule 3215, the Exchange will continue to share any PSX Participant risk settings in the trading system that are specified in the Rule 3215 Commentary and Rule 3316 with the clearing member that clears transactions on behalf of the member even if the clearing member is not designated. Under current Rule 3215 Commentary, the Exchange offers certain risk settings applicable to a PSX Participant on the Exchange. Proposed Rule 3215 Commentary (h) would allow for a PSX Participant to limit the maximum dollar amount that the PSX Participant may associate with an order placed on the Exchange. This risk setting is identical to Nasdaq Rule IM-6200-1(h) and similar to the risk control provided by NYSE pursuant to Rule 7.19(a)(3) and Arca pursuant to Rule 7.19-E(a)(3). When the Maximum Single Order Notional Check is enabled, if a PSX Participant breaches this risk setting, the single order will be rejected by the system. The action taken is identical to Nasdaq Rule IM-6200-1(h) and similar to NYSE Rule 7.19(c)(2) and Arca Rule 7.19-E(c)(2).
The Exchange is also proposing to make the following non-substantive conforming changes:
• Remove the term “open orders” and replace with “unexecuted orders”.
• Remove all references to the acronym “NNRE” throughout the rule in conjunction with the removal of the reference to “Net Notional Risk Exposure.”
• Renumber Rule 3215 Commentary to conform to the addition of proposed Rule 3215 Commentary (h).
The Exchange will announce the implementation date of the proposed rule change in a Trader Alert to be published no later than 60 days following the effective date. The implementation date will be no later than 90 days following the effective date.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
Specifically, the Exchange believes the proposed amendment will remove impediments to and perfect the mechanism of a free and open market and a national market system because it provides functionality for a PSX Participant to manage its risk exposure under Rule 3316 and Rule 3215 Commentary, while also providing a notification system under Rule 3316(c) that would help to ensure the PSX Participant and a PSX Participant's clearing member are aware of developing issues. In addition, the proposed amendments to Rule 3316 would provide clearing members, who have assumed certain risks of PSX Participants, greater control over risk tolerance and exposure on behalf of their correspondent PSX Participant, while helping to ensure that both PSX Participant and a PSX Participant's clearing member are aware of developing issues.
A clearing member guarantees transactions executed on PSX for PSX Participants with whom it has entered into a clearing arrangement, and therefore bears the risk associated with those transactions. The Exchange therefore believes that it is appropriate for the clearing member to have knowledge of what risk settings the PSX Participant may utilize within the Exchange's trading system, as well as the option to set and adjust the risk levels. The proposal will permit clearing members who have a financial interest in the risk settings of PSX Participants with whom the PSX Participants have entered into clearing arrangements to better monitor and manage the potential risks assumed by clearing members, thereby providing clearing members with greater control and flexibility over setting their own risk tolerance and exposure and aiding clearing members in complying with the Act.
In addition, the Exchange believes that the proposed amendments under Rule 3316 and Rule 3215 Commentary are designed to protect investors and the public interest because the proposed functionalities are a form of risk mitigation that will aid PSX Participants and clearing members in minimizing their financial exposure and reduce the potential for disruptive, market-wide events. The proposed Gross Executed Risk Exposure and Gross Notional Risk Exposure settings are appropriate measures to serve as an additional tool for PSX Participants and clearing members to assist them in identifying risk exposure by identifying when the PSX Participant is reaching its maximum dollar amount for purchases and sales across all symbols. The Exchange also believes the proposed amendments will assist PSX Participants and clearing members in managing their financial exposure which, in turn, could enhance the integrity of trading on the securities markets and help to assure the stability of the financial system. Moreover, a PSX Participant may revoke responsibility allocated to its clearing member at any time.
Further, the Exchange believes that the proposed amendments under Rule 3316 and Rule 3215 Commentary (h) will foster cooperation and coordination with persons facilitating transactions in securities because under Rule 3316(c), the Exchange will provide alerts when a PSX Participant's trading activity reaches certain thresholds and under Rule 3215 Commentary (h), the Exchange will limit the PSX Participant's maximum dollar amount placed on an order. As such, the Exchange may help clearing members monitor the risk levels of corresponding PSX Participants.
Additionally, the proposed change to replace the term “member” with PSX Participant in Rule 3316 will provide greater clarity to the public regarding the Exchange's optional risk control rules and it is in the public interest for the rules to be accurate as to eliminate potential confusion.
Finally, the Exchange believes that the proposed rule changes do not unfairly discriminate among PSX Participants because use of the risk settings under Rule 3316 and Rule 3215 Commentary (h) are optional and available to all PSX Participants, and not a prerequisite for participation on the Exchange. In addition, because all orders on the Exchange would pass through the risk checks, there would be no difference in the latency experienced by PSX Participants who have opted to use the risk settings versus those who have not opted to use them.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In fact, the Exchange believes that the proposal will have a positive effect on competition because, it would allow the Exchange to offer risk management functionality that is comparable to functionality being offered by other national securities exchanges.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under 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 change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 12, 2020, Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission is extending this 45-day time period. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposal so that it has sufficient time to consider the proposed rule change, as modified by Amendment No. 1. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, entitled Payment, Clearing and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
This advance notice is submitted in in connection with proposed changes to OCC Rules 2211 and 2211A, which concern the close-out of a defaulting Hedge Clearing Member's or Market Loan Clearing Member's (each a “defaulting Clearing Member”) stock loan positions, respectively, to require Lending Clearing Members or Borrowing Clearing Members (each a “non-defaulting Clearing Member”) whom OCC instructs to buy-in or sell-out securities to execute such transactions and provide OCC notice of such action by the settlement time for a Clearing Member's obligations to OCC on the business day after OCC gives the instruction.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the advance notice and discussed any comments it received on the advance notice. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections A and B below, of the most significant aspects of these statements.
Written comments were not and are not intended to be solicited with respect to the advance notice and none have been received. OCC will notify the Commission of any written comments received by OCC.
This advance notice concerns a change to OCC's operations to amend OCC Rules 2211 and 2211A to ensure that OCC has authority and operational capacity to take timely action to contain losses and liquidity demands and continue to meet its obligations in the event of a Clearing Member default by more closely aligning the close-out of stock loan positions through buy-in and sell-out transactions with the timing of an auction of a defaulting Clearing Member's other positions and to ensure that the close-out of a defaulting Clearing Member's stock loan positions by buy-in or sell-out transactions occurs within OCC's two-day liquidation assumption. The proposed amendments to the Rules are discussed in more detail below.
OCC operates two programs in which it acts as a central counterparty for stock loan transactions: (1) The Stock Loan/Hedge Program and (2) Market Loan Program (collectively, the “Stock Loan Programs”). Stock Loan/Hedge Program transactions are initiated directly between Clearing Members on a bilateral basis (
Under the Stock Loan Programs, OCC novates the transaction and becomes the lender to the Borrowing Clearing Member and the borrower to the Lending Clearing Member upon receiving reports from DTC showing completed Stock Loans, provided that OCC has not rejected such transactions.
In the event a Clearing Member defaults, OCC closes the defaulting Clearing Member's positions, liquidates collateral, and deposits any proceeds into a Liquidating Settlement Account. The close-out of positions other than stock loan positions would typically be effected by an auction that would occur on the morning prior to market opening on the day after a default occurs.
The buy-in/sell-out process for stock loan positions has significant benefits as it distributes the liquidity demands across multiple counterparties, each of whom effectively act as independent liquidating agents. The buy-in/sell-out process also aligns the liquidity demands necessary to facilitate an unwind with the Clearing Member receiving proceeds from the origination of the loan and currently in possession of the collateral. However, the difference in timing between an auction and the buy-in/sell-out process presents credit and liquidity risks for OCC. Specifically, because OCC's portfolio-based margin methodology combines stock loan positions with options, futures, and margin collateral when determining margin requirements, the difference in timing could expose OCC to increased credit and liquidity risk should the price of the stock loan positions move unfavorably between the time of auction and determination of the final settlement price for remaining buy-in/sell-out transactions and should that price differential exceed the amount of margin on deposit for such positions.
In response to these concerns, OCC proposes to amend OCC Rules 2211 and 2211A to require buy-in or sell-out transactions to be complete by the settlement time for a Clearing Member's obligations to OCC, defined in Article I of the By-Laws,
This proposed enhancement is designed to mitigate the risks associated with the difference in timing between close-out of stock loan positions and an auction for the remainder of defaulting Clearing Member's portfolio. In the typical case, an auction to close positions for other products would occur on the morning prior to market opening on the day after a default event occurs. Accelerating the deadline for buy-in or sell-out transactions to that morning—rather than the end of the stock loan business day—would reduce credit and liquidity risks by aligning liquidation timing across products more closely.
The proposed enhancement also is designed to ensure that the close-out process for the Stock Loan Programs would occur in a manner consistent with OCC's two-day liquidation assumption (which is applicable to all products without differentiation). At the earliest, a defaulting Clearing Member would have made its last margin payment at the settlement time on the business day
OCC considered requiring non-defaulting Clearing Members to execute buy-in or sell-out transactions by the end of the business day on the same day as OCC's instruction but believes extending the process to the following morning is the better option. In discussion with several Clearing Members, they expressed a preference
OCC expects to implement the proposed changes within thirty (30) days after the date that OCC receives all necessary regulatory approvals for the proposed changes. OCC will announce the implementation date of the proposed change by an Information Memorandum posted to its public website at least one (1) weeks prior to implementation.
OCC believes that the proposed changes would reduce the nature and level of risk presented by OCC because they would enhance the overall resilience of OCC's Stock Loan Programs by enhancing the default management processes for the Stock Loan Programs to mitigate the risks associated with the buy-in/sell-out described above.
OCC proposes to amend OCC Rules 2211 and 2211A to require buy-in or sell-out transactions to be complete by the settlement time for a Clearing Member's obligations to OCC, defined in Article I of the By-Laws,
OCC believes the proposed changes help to mitigate the risks associated with the difference in timing between close-out of stock loan positions and an auction for the remainder of defaulting Clearing Member's portfolio. In the typical case, an auction to close positions for other products would occur on the morning prior to market opening on the day after a default event occurs. Accelerating the deadline for buy-in or sell-out transactions to that morning—rather than the end of the stock loan business day—would reduce credit and liquidity risks by aligning liquidation timing across products more closely. OCC also believes the proposed changes helps to mitigate credit risks by ensuring that the close-out process for the Stock Loan Programs would occur in a manner consistent with OCC's two-day liquidation assumption (which is applicable to all products without differentiation). In addition, OCC believes using the last Marking Price available in its system prior to the time by which a Clearing Member is obligated to take action helps manage risk in situations where a Clearing Member fails to take action because OCC's automated systems are designed to determine the Marking Price based on closing securities prices. The manual processes that OCC would need to institute to pull pricing information other than closing prices would make the stock loan close-out process more susceptible to delay and errors.
The stated purpose of the Clearing Supervision Act is to mitigate systemic risk in the financial system and promote financial stability by, among other things, promoting uniform risk management standards for systemically important financial market utilities and strengthening the liquidity of systemically important financial market utilities.
• Promote robust risk management;
• promote safety and soundness;
• reduce systemic risks; and
• support the stability of the broader financial system.
The Commission has adopted risk management standards under Section 805(a)(2) of the Clearing Supervision Act and the Exchange Act in furtherance of these objectives and principles.
OCC believes the proposed changes are consistent with the objectives and principles of Section 805(b) of the Clearing Supervision Act.
OCC also believes that the proposed changes are consistent with the risk management standards adopted by the Commission under Section 805(a)(2) of the Clearing Supervision Act;
In addition, Rule 17Ad-22(e)(23) requires covered clearing agencies to maintain written policies and procedures reasonably designed to, among other things, provide for publicly disclosing all relevant rules and material procedures, including key aspects of its default rules and procedures.
For the foregoing reasons, OCC believes that the proposed changes are consistent with Section 805(b) of the Clearing Supervision Act
The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date the proposed change was filed with the Commission or (ii) the date any additional information requested by the Commission is received. OCC shall not implement the proposed change if the Commission has any objection to the proposed change.
The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission providing the clearing agency with prompt written notice of the extension. A proposed change may be implemented in less than 60 days from the date the advance notice is filed, or the date further information requested by the Commission is received, if the Commission notifies the clearing agency in writing that it does not object to the proposed change and authorizes the clearing agency to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission.
OCC shall post notice on its website of proposed changes that are implemented. The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the advance notice is consistent with the Clearing Supervision 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.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-OCC-2020-805 and should be submitted on or before August 31, 2020.
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes certain changes regarding the underlying benchmark for the ProShares Ultra Bloomberg Crude Oil ETF and ProShares UltraShort Bloomberg Crude Oil ETF, which are currently listed and traded on the Exchange under NYSE Arca Rule 8.200-E (Trust Issued Receipts). The proposed rule change is available on 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 those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange currently lists and trades shares of the ProShares Ultra Bloomberg Crude Oil ETF and ProShares UltraShort Bloomberg Crude Oil ETF (each a “Fund” and, together, the “Funds”) under NYSE Arca Rule 8.200-E (Trust Issued Receipts). The Exchange proposes certain changes regarding the benchmark index underlying the Funds. Shares of the Funds initially were approved for listing on the American Stock Exchange LLC (“Amex”) in 2008,
The Funds are series of the ProShares Trust II (“Trust”).
The Prior Amex Releases stated that the Ultra DJ-AIG Crude Oil ProShares (now known as the ProShares Ultra Bloomberg Crude Oil ETF) seeks daily investment results, before fees and expenses, that correspond to twice (200%) the daily performance of the Fund's underlying benchmark (described below); and the UltraShort DJ-AIG Crude Oil ProShares (now known as ProShares UltraShort Bloomberg Crude Oil ETF) seeks daily investment results, before fees and expenses, that correspond to twice the inverse (-200%) of the daily performance of the Fund's underlying benchmark. The Prior Amex Releases stated that the Funds may hold any combination of investments, including cash, securities, options on securities and indices, commodities, futures contracts, options on futures contracts, forward contracts, equity caps, collars, and floors, and swap agreements (collectively, “Financial Instruments”).
The Funds' underlying benchmark (“Current Benchmark”) was identified in the Prior Amex Releases as the Dow Jones-AIG Crude Oil Sub-Index Excess Return. The Dow Jones-AIG Crude Oil Sub-Index Excess Return was renamed the Bloomberg WTI Crude Oil Subindex as of July 1, 2014, after Bloomberg
As stated in the Prior Amex Releases, in seeking to achieve each Fund's investment objective, the Managing Owner determines the type, quantity, and mix of investment positions that it believes in combination should produce daily returns consistent with a Fund's investment objective. Each Fund invests principally in any one of, or combinations of, Financial Instruments with respect to the underlying benchmark to the extent determined appropriate by the Managing Owner. In addition, each Fund may establish long or short positions in Financial Instruments as the Managing Owner believes will further the investment objective of each Fund.
The Trust intends to change the underlying benchmark for the Funds from the Current Benchmark to a new benchmark, the Bloomberg Commodity Balanced WTI Crude Oil Index the (“New Benchmark”). Bloomberg Index Services Limited (“Bloomberg”) is the index administrator for the New Benchmark. The Trust intends to amend the current registration statement for the Funds to implement this change.
According to the Registration Statement, the New Benchmark aims to track the performance of three separate contract schedules for West Texas Intermediate (“WTI”) Crude Oil futures traded on NYMEX. The contract schedules are equally-weighted in the New Benchmark (
Values for the New Benchmark are determined on each day on which NYMEX is open for trading. The New Benchmark's methodology and values are publicly available on Bloomberg's website.
The Funds' Current Benchmark includes only a single WTI crude oil futures contract selected from the three nearest expiration dates. As noted herein, the New Benchmark is equally weighted (at each semi-annual reset date) across three different WTI futures contract schedules and includes longer-dated contracts than those included in the Current Benchmark.
Other than the change to the Funds' underlying benchmark, as described above, each of the Funds will continue to comply with all other listing requirements set forth in the Prior Amex Releases, the Prior NYSE Arca Notice and NYSE Arca Rule 8.200-E, as applicable.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Sponsor has represented to the Exchange that it believes that the proposed change to the New Benchmark should benefit Fund investors by diversifying the Funds' exposure across futures contracts with three different expiration dates, including longer-dated contracts than those included in the Current Benchmark, thereby potentially reducing the volatility of each Fund. The Sponsor has further represented to the Exchange that it believes the potential for lower volatility is especially important to Fund investors in light of global events during the first half of 2020, which could continue for the foreseeable future, including the COVID-19 pandemic, a significant oversupply in the crude oil market, a significant increase in volatility, and contango that resulted in a negative price in the May 2020 WTI crude oil futures contract.
The Funds' benchmark will continue to be based on pricing of WTI crude oil futures, and the types of Financial Instruments in which the Funds may
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange believes that the proposed rule change will facilitate fair and orderly trading of Shares of the Funds utilizing the New Benchmark that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
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
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under 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 change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe C2 Exchange, Inc. (the “Exchange” or “C2”) proposes to amend Rule 6.61. The text of the proposed rule change is provided below. (additions are
(a)-(c) No change.
(d) Prior Written Notice. A Trading Permit Holder(s) and its Clearing Trading Permit Holder(s) (to the extent that the Trading Permit Holder is not self-clearing) must submit to the Exchange, in a manner determined by the Exchange, written notice prior to effecting an off-floor transfer from or to the account(s) of a Trading Permit Holder(s), except that notification is not required for transfers [to correct errors]
(g) Routine, Recurring Transfers. The off-floor transfer procedure set forth in this Rule is intended to facilitate non-routine, non-recurring movements of positions[. The off-floor transfer procedure]
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Rule 6.61 describes exceptions to the prohibition against off-floor transactions set forth in Rule 6.60, subject to certain conditions. The exception in Rule 6.61(a)(2) provides that off-floor transfers of positions are permissible if from one account to another account where no change in ownership is involved (
The proposed rule change excepts off-floor position transfers effected pursuant to Rule 6.61(a)(2) from the prior written notice requirement in paragraph (d) and from repeated, recurring use restriction in paragraph (g). Off-floor position transfers pursuant to Rule 6.61(a)(2) do not involve a change in ownership. In other words, such transfers may only occur between the same individual or legal entity. These types of transfers are merely transfers of positions from one account to another, both of which accounts are attributable to the same individual or legal entity, and thus the transferred option positions will continue to be attributable to the same person. A market participant effecting an off-floor position transfer pursuant to Rule 6.61(a)(2) is analogous to an individual transferring funds from a checking account to a savings account, or from an account at one bank to an account at another bank—the money still belongs to the same person, who is just holding it in a different account for personal financial reasons.
Because there is no change in ownership of positions transferred pursuant to Rule 6.61(a)(2), the Exchange believes it is appropriate to permit them to occur as routinely and repeatedly as a market participant would like. These transfers will continue to be subject to the prohibition on netting set forth in Rule 6.61(b), and thus may not result in the closing of any positions. While the off-floor position transfers permitted by Rule 6.61 were intended to accommodate non-routine and non-recurring transfers, the Exchange believes permitting routine, recurring off-floor position transfers that do not result in a change in ownership or reduction in open interest is consistent with the purpose of not being used to circumvent the normal auction purpose. Additionally, given that these transfers may occur on a regular basis in accordance with a market participants' business needs and procedures, the Exchange believes prior written notice would be onerous and would not serve any purpose given the lack of change in ownership and in open interest. The Exchange believes this will provide market participants with additional flexibility to structure their option position accounts as they believe is appropriate and move their positions between accounts as they deem necessary and appropriate for their business and trading needs, including for risk management purposes.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest because it will provide market participants with a more efficient process to transfer open positions between their own accounts in accordance with their own business and trading needs, including to respond to then-current market conditions. Because these transfers would not result in a change in ownership or a reduction in open interest, the Exchange believes the proposed rule change remains consistent with the purpose of Rule 6.61, which was to prohibit use of the off-floor transfer procedure in circumvention of the normal auction process, as the normal auction process involves the opening or closing of positions through a transaction among multiple market participants. Market participants may maintain different accounts for a variety of reasons, such as the structure of their businesses, the manner in which they trade, their risk management procedures, and for capital purposes. Given that these transfers may occur on a regular basis in accordance with a market participants' business needs and procedures, the Exchange believes prior written notice would be onerous and would not serve any purpose given the lack of change in ownership and in open interest. Therefore, the proposed rule change will benefit investors by permitting market participants to manage the open positions in their accounts in a manner consistent with their businesses.
The Exchange recognizes the numerous benefits of executing options transactions on an exchange, including price transparency, potential price improvement, and a clearing guarantee. However, the Exchange believes it is appropriate to permit position transfers among accounts of the same individual or legal entity where there is no impact on open interest to occur off the exchange, as these benefits are inapplicable to those transfers. These transfers have a narrow scope and are intended to permit market participants to achieve their own business needs. These transfers are not intended to be a competitive trading tool. There is no need for price discovery or improvement, as the transfer merely moves positions to different accounts for the same person and does not open or close any positions. These transfers will result in no change in ownership. The transactions that resulted in the open positions to be transferred pursuant to Rule 6.61(a)(2) were already guaranteed by a clearing member of The Options Clearing Corporation (“OCC”), and the positions may not be closed pursuant to the transfer and will continue to be subject to OCC rules, as they will continue to be held in an account with an OCC clearing member.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed rule change will apply to all market participants in the same manner. All market participants will be able to effect off-floor position transfers pursuant to Rule 6.61(a)(2) on a recurring or routine basis without providing the Exchange with notice of such transfers. The Exchange does not believe 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 because it relates solely to the notice required for off-floor transfers that may occur today, and the frequency with which those transfers may occur. These transfers will continue to not result in a change in ownership or netting, and thus will have no impact on outstanding option positions.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe EDGX Exchange, Inc. (the “Exchange” or ““EDGX””) proposes to amend Rule 20.10. The text of the proposed rule change is provided below. (additions are
(a)-(c) No change.
(d) Prior Written Notice. A Member(s) and its Clearing Member(s) (to the extent that the Member is not self-clearing) must submit to the Exchange, in a manner determined by the Exchange, written notice prior to effecting an off-floor transfer from or to the account(s) of a Member(s), except that notification is not required for transfers [to correct errors]
(g) Routine, Recurring Transfers. The off-floor transfer procedure set forth in this Rule is intended to facilitate non-routine, non-recurring movements of positions[. The off-floor transfer procedure]
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Rule 20.10 describes exceptions to the prohibition against off-floor transactions set forth in Rule 20.9, subject to certain conditions. The exception in Rule 20.10(a)(2) provides that off-floor transfers of positions are permissible if from one account to another account where no change in ownership is involved (
The proposed rule change excepts off-floor position transfers effected pursuant to Rule 20.10(a)(2) from the prior written notice requirement in paragraph (d) and from repeated, recurring use restriction in paragraph (g). Off-floor position transfers pursuant to Rule 20.10(a)(2) do not involve a change in ownership. In other words, such transfers may only occur between the same individual or legal entity. These types of transfers are merely transfers of positions from one account to another, both of which accounts are attributable to the same individual or legal entity, and thus the transferred option positions will continue to be attributable to the same person. A market participant effecting an off-floor position transfer pursuant to Rule 20.10(a)(2) is analogous to an individual transferring funds from a checking account to a savings account, or from an account at one bank to an account at another bank—the money still belongs to the same person, who is just holding it in a different account for personal financial reasons.
Because there is no change in ownership of positions transferred pursuant to Rule 20.10(a)(2), the Exchange believes it is appropriate to permit them to occur as routinely and repeatedly as a market participant would like. These transfers will
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest because it will provide market participants with a more efficient process to transfer open positions between their own accounts in accordance with their own business and trading needs, including to respond to then-current market conditions. Because these transfers would not result in a change in ownership or a reduction in open interest, the Exchange believes the proposed rule change remains consistent with the purpose of Rule 20.10, which was to prohibit use of the off-floor transfer procedure in circumvention of the normal auction process, as the normal auction process involves the opening or closing of positions through a transaction among multiple market participants. Market participants may maintain different accounts for a variety of reasons, such as the structure of their businesses, the manner in which they trade, their risk management procedures, and for capital purposes. Given that these transfers may occur on a regular basis in accordance with a market participants' business needs and procedures, the Exchange believes prior written notice would be onerous and would not serve any purpose given the lack of change in ownership and in open interest. Therefore, the proposed rule change will benefit investors by permitting market participants to manage the open positions in their accounts in a manner consistent with their businesses.
The Exchange recognizes the numerous benefits of executing options transactions on an exchange, including price transparency, potential price improvement, and a clearing guarantee. However, the Exchange believes it is appropriate to permit position transfers among accounts of the same individual or legal entity where there is no impact on open interest to occur off the exchange, as these benefits are inapplicable to those transfers. These transfers have a narrow scope and are intended to permit market participants to achieve their own business needs. These transfers are not intended to be a competitive trading tool. There is no need for price discovery or improvement, as the transfer merely moves positions to different accounts for the same person and does not open or close any positions. These transfers will result in no change in ownership. The transactions that resulted in the open positions to be transferred pursuant to Rule 20.10(a)(2) were already guaranteed by a clearing member of The Options Clearing Corporation (“OCC”), and the positions may not be closed pursuant to the transfer and will continue to be subject to OCC rules, as they will continue to be held in an account with an OCC clearing member.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed rule change will apply to all market participants in the same manner. All market participants will be able to effect off-floor position transfers pursuant to Rule 20.10(a)(2) on a recurring or routine basis without providing the Exchange with notice of such transfers. The Exchange does not believe 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 because it relates solely to the notice required for off-floor transfers that may occur today, and the frequency with which those transfers may occur. These transfers will continue to not result in a change in ownership or netting, and thus will have no impact on outstanding option positions.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change 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-CboeEDGX-2020-035. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 4764 (BX Kill Switch) and Rule 4765 (Exchange Sharing of Participant Risk Settings) Commentary to provide Participants with additional optional settings.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule changes under BX Rule 4764 (BX Kill Switch) and Rule 4765 (Exchange Sharing of Participant Risk Settings) Commentary is to provide Participants with additional optional settings in order to assist them in their efforts to manage their risk levels. Once the optional risk controls are set, the Exchange is authorized to take automated action if a designated risk level for a Participant is exceeded. Such risk settings would provide Participants with enhanced abilities to manage their risk with respect to orders on the Exchange.
The proposed pre-trade risk controls described below are meant to supplement, and not replace, the Participant's own internal systems, monitoring and procedures related to risk management. For clarification, the Exchange does not guarantee that these controls will be sufficiently comprehensive to meet all of a Participant's needs, nor are the controls designed to be the sole means of risk management, and using these controls will not necessarily meet a Participant's obligations required by Exchange or federal rules (including, without limitation, the Rule 15c3-5 under the Act
Rule 4764(a) provides the definition of the BX Kill Switch, which is an optional tool offered at no charge that enables participants to establish a pre-determined level of Net Notional Risk Exposure (“NNRE”), to receive notifications as the value of executed orders approaches the NNRE level, and to have order entry ports disabled and open orders administratively cancelled when the value of executed orders exceeds the NNRE level. Most order entry ports are assigned to one MPID. In the event that multiple MPIDs are assigned to one port, only the affected MPID is disabled from the port. The NNRE, although not explicitly defined,
The Exchange is renaming the NNRE by proposing to remove references to “Net Notional Risk Exposure” and to replace them with “Gross Executed Risk Exposure”. This risk level refers to a pre-established maximum daily dollar amount for buy and sell orders across all symbols, where both buy and sell orders are counted as positive values. For purposes of calculating Gross Executed Risk Exposure, only executed orders are included. The Exchange is not changing the NNRE calculation under the proposed amendment. Rather, it will be renamed as the Gross Executed Risk Exposure. This risk setting is identical to Nasdaq Stock Market LLC (“Nasdaq”) Rule 6130(a)(1) and similar to Cboe BZX Exchange, Inc.'s (“BZX”) Interpretations and Policies .03(a)(1) of BZX Rule 11.13.
The Exchange is also proposing to add an additional risk setting titled “Gross Notional Risk Exposure,” which refers to a pre-established maximum daily dollar amount for buy and sell orders across all symbols, where both buy and sell orders are counted as positive values. For purposes of calculating Gross Notional Risk Exposure, unexecuted orders on the Exchange book and executed orders are included. This setting is identical to Nasdaq Rule 6130(a)(2) and similar to Interpretations and Policies .03(a)(2) of BZX Rule 11.13, except BZX excludes unexecuted orders and counts purchases as positive values and sales are counted negative values. Additionally, the Exchange's rule is similar to New York Stock Exchange LLC (“NYSE”) Rule 7.19(a)(5) and NYSE Arca, Inc. (“Arca”) Rule 7.19-E(a)(5), except NYSE and Arca include orders routed on arrival. While the current functionality would continue to be available, this additional proposed risk setting would allow a Participant to manage its risk more comprehensively, instead of relying solely on the NNRE functionality offered today. For purposes of Rule 4764, the Exchange proposes to use the term “Participant” as defined in Rule 4701(c).
The Exchange also proposes to make a conforming change to Rule 4764(b) by removing “Net Notional Risk Exposure” and replacing it with “Establishing and Adjusting Levels.” The Exchange is also proposing to specify that a Participant's clearing member, as discussed below, may set the risk levels for each MPID individually. This action is identical to Nasdaq Rule 6130(b) and similar to Interpretations and Policies .03(b)(1) of BZX Rule 11.13 and NYSE Rule 7.19(b)(3)(B) and Arca Rule 7.19-E(b)(3)(B), except unlike NYSE and Arca, the Exchange does not allow for setting risk levels at the sub-ID of an MPID. Additionally, the proposal allows for the clearing member, in addition to the Participant, to set and adjust the values before the beginning of a trading day as well as set and adjust them during the trading day. This is identical to Nasdaq Rule 6130(b) and similar to Interpretations and Policies .03(b) of BZX Rule 11.13, NYSE Rule 7.19(b)(3)(A) and Arca Rule 7.19-E(b)(3)(A).
The Exchange is proposing under Rule 4764(c) to allow clearing members, if designated pursuant to Rule 4764(d), to receive notifications when the total value of executed orders, and if applicable, unexecuted orders associated with an MPID exceeds 50, 75, 85, 90, and 95 percent of the applicable risk level values. This rule is identical to Nasdaq Rule 6130(c) and similar to Interpretations and Policies .03(d) of BZX Rule 11.13, NYSE Rule 7.19(b)(4), and Arca Rule 7.19-E(b)(4).
A clearing member guarantees transactions executed on BX for members with whom it has entered into a clearing arrangement, and therefore bears the risk associated with those transactions. Because clearing members bear the risk on behalf of their Participant, the Exchange believes that it is appropriate for the clearing member to have knowledge of what risk settings the Participant may utilize within the Exchange's trading system, as well as the option to set and adjust the risk levels. The proposal will permit clearing members who have a financial interest in the risk settings of Participants with whom the Participants have entered into clearing arrangements to better monitor and manage the potential risks assumed by clearing members, thereby providing clearing members with greater control and flexibility over setting their own risk tolerance and exposure and aiding clearing members in complying with the Act. Therefore, the Exchange proposes to make the proposed optional risk settings in Rule 4764 available to clearing members, if so authorized by the Participant.
Proposed Rule 4764(d) would allow for a Participant that does not self-clear to allocate responsibility for establishing and adjusting the risk levels to a clearing member that clears transactions on behalf of the Participant. A Participant may request to sign up for the Kill Switch optional setting by contacting Nasdaq Subscriber Services or by completing a Front End Request form.
Nasdaq, BZX, NYSE and Arca also provide similar designations to its clearing members pursuant to Nasdaq Rule 6130(d), Interpretations and Policies .03(c) of BZX Rule 11.13, NYSE Rule 7.19(b)(2), and Arca Rule 7.19-E(b)(2). However, unlike NYSE and Arca, the Exchange does not allow for multiple risk level values to be in place at one time.
The Exchange also proposes to renumber current Rule 4764(d) as Rule 4764(e) and retitle it to more accurately describe the provision by removing “Operation” and replacing it with “Breach Action and Reinstatement.” Additionally, the Exchange is proposing to clarify that when a pre-established risk level is breached and the Kill Switch is triggered, it shall result in the immediate cancellation of all unexecuted orders of any type or duration entered by the Participant via the affected MPID, and in the immediate prevention of order entry of any type via affected MPID. The Participant or the clearing member, if designated pursuant to paragraph (d), must request reactivation of the MPID before trading will be reauthorized.
As a reminder, pursuant to current Rule 4765, the Exchange will continue to share any Participant risk settings in the trading system that are specified in Rule 4764 and the Rule 4765 Commentary with the clearing member that clears transactions on behalf of the Participant even if the clearing member is not designated. Under current Rule 4765 Commentary, the Exchange offers certain risk settings applicable to a Participant on the Exchange. Proposed Rule 4765 Commentary (h) would allow for a Participant to limit the maximum dollar amount that the Participant may associate with an order placed on the Exchange. This risk setting is identical to Nasdaq Rule IM-6200-1(h) and similar to the risk control provided by NYSE pursuant to Rule 7.19(a)(3) and Arca pursuant to Rule 7.19-E(a)(3). When the Maximum Single Order Notional Check is enabled, if a Participant breaches this risk setting, the single order will be rejected by the system. The action taken is identical to Nasdaq Rule IM-6200-1(h) and similar to NYSE Rule 7.19(c)(2) and Arca Rule 7.19-E(c)(2).
The Exchange is also proposing to make the following non-substantive conforming changes:
• Capitalize the term “Participant” when referenced throughout the rule.
• Remove the term “open orders” and replace with “unexecuted orders”.
• Remove all references to the acronym “NNRE” throughout the rule in conjunction with the removal of the reference to “Net Notional Risk Exposure.”
• Renumber Rule 4765 Commentary to conform to the addition of proposed Rule 4765 Commentary (h).
The Exchange will announce the implementation date of the proposed rule change in a Trader Alert to be published no later than 60 days following the effective date. The implementation date will be no later than 90 days following the effective date.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
Specifically, the Exchange believes the proposed amendment will remove impediments to and perfect the mechanism of a free and open market and a national market system because it provides functionality for a Participant to manage its risk exposure under Rule 4764 and Rule 4765 Commentary, while also providing a notification system under Rule 4764(c) that would help to ensure the Participant and its clearing member are aware of developing issues. In addition, the proposed amendments to Rule 4764 would provide clearing members, who have assumed certain risks of Participants, greater control over risk tolerance and exposure on behalf of their correspondent Participant, while helping to ensure that both Participant and its clearing member are aware of developing issues.
A clearing member guarantees transactions executed on BX for members with whom it has entered into a clearing arrangement, and therefore bears the risk associated with those transactions. The Exchange therefore believes that it is appropriate for the clearing member to have knowledge of what risk settings the Participant may utilize within the Exchange's trading system, as well as the option to set and adjust the risk levels. The proposal will permit clearing members who have a financial interest in the risk settings of Participants with whom the Participants have entered into clearing arrangements to better monitor and manage the potential risks assumed by clearing members, thereby providing clearing members with greater control and flexibility over setting their own risk tolerance and exposure and aiding clearing members in complying with the Act.
In addition, the Exchange believes that the proposed amendments under Rule 4764 and Rule 4765 Commentary are designed to protect investors and the public interest because the proposed functionalities are a form of risk mitigation that will aid Participants and clearing members in minimizing their financial exposure and reduce the potential for disruptive, market-wide events. The proposed Gross Executed Risk Exposure and Gross Notional Risk Exposure settings are appropriate measures to serve as an additional tool for Participants and clearing members to assist them in identifying risk exposure by identifying when the Participant is reaching its maximum dollar amount for purchases and sales across all symbols. The Exchange also believes the proposed amendments will assist Participants and clearing members in managing their financial exposure which, in turn, could enhance the integrity of trading on the securities markets and help to assure the stability of the financial system. Moreover, a Participant may revoke responsibility allocated to its clearing member at any time.
Further, the Exchange believes that the proposed amendments under Rule 4764 and Rule 4765 Commentary (h) will foster cooperation and coordination with persons facilitating transactions in securities because under Rule 4764(c), the Exchange will provide alerts when a Participant's trading activity reaches certain thresholds and under Rule 4765 Commentary (h), the Exchange will limit the Participant's maximum dollar amount placed on an order. As such, the Exchange may help clearing members monitor the risk levels of corresponding Participants.
Finally, the Exchange believes that the proposed rule changes do not
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In fact, the Exchange believes that the proposal will have a positive effect on competition because, it would allow the Exchange to offer risk management functionality that is comparable to functionality being offered by other national securities exchanges.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under 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 change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
2:00 p.m. on Wednesday, August 19, 2020.
The meeting will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topic:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Social Security Administration.
Notice of Public Availability of FY 2018 Service Contract Inventories.
In accordance with Section 743 of Division C of the Consolidated Appropriations Act of 2010, we are publishing this notice to advise the public of the availability of the FY 2018 Service Contract inventory. This inventory provides information on FY 2018 service contract actions over $25,000. We organized the information by function to show how we distribute contracted resources throughout the agency. We developed the inventory in accordance with guidance issued on December 19, 2011 by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). OFPP's guidance is available at
Ronnetta Mason, Office of Budget, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401. Phone (410) 597-1955, email
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to
You may submit comments by the following method:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Natalie Donahue, Chief of Evaluation, Bureau of Educational and Cultural Affairs,
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The TechWomen program seeks to “empower, connect, and support the next generation of women leaders in STEM” by providing opportunities for them to reach their full potential and become role models for women and girls in their communities. Through mentorship and exchange, the TechWomen program is designed to strengthen participants' professional capacity, increase mutual understanding between key networks of professionals, and expand women and girls' interest in STEM careers by exposing them to female role models. During the five-week program, foreign participants engage with female leaders in project-based mentorships at leading companies in the Silicon Valley and Bay Area, participate in professional development workshops and networking events, and travel to Washington, DC for targeted meetings and special events to conclude the program. After their completion of the program, emerging leaders and mentors have the opportunity to reconnect during delegation trips to program countries in Africa, South and Central Asia, and the Middle East, which focus on expanding networks of women in STEM fields, creating and strengthening partnerships, encouraging girls to pursue STEM careers and ensuring the sustainability of mentor-fellow relationships. This program is funded pursuant to the Mutual Educational and Cultural Exchange Act of 1961 (22 U.S.C. 2451
To evaluate the impacts of the program, the U.S. Department of State's Bureau of Educational and Cultural Affairs (ECA) intends to conduct an evaluation of the program covering the period of 2011 through 2019. The evaluation will determine the strength and sustainability of professional networks created by the program and the extent to which these networks have been leveraged for collaborations between Alumnae to enact change. In order to do so, ECA contracted Social Impact (SI) in early 2020 to conduct an evaluation of the TechWomen program.
The evaluation will use a mixed-methods design including a quantitative survey and key informant interviews (KIIs). Data from these methods will be used to assess the strength of mentor-alumnae networks as a result of the TechWomen project. The evaluation's approach prioritizes ECA utilization of recommendations to maximize the reach and impact of the TechWomen program. The evaluation will include 40 Key Informant Interviews in the Silicon Valley/Bay Area. The sampling will include Professional Mentors, Cultural Mentors, and Impact Coaches. The Evaluation Team (ET) will gather survey data using the network survey platform ONASurveys.com and will use data from the online survey to provide visual representations and analytic data of the TechWomen network structure.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to October 13, 2020.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to G. Kevin Saba, Director, Office of Policy and Program Support, Office of Private Sector Exchange, SA-4E, Washington, DC 20522-0505; the office may be reached by email at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The collection is the continuation of information collected and needed by the Bureau of Educational and Cultural Affairs in administering the Exchange Visitor Program (J-Nonimmigrant) under the provisions of the Mutual Educational and Cultural Exchange Act, as amended (22 U.S.C. 2451,
Access to Form DS-2019 is made available to Department designated sponsors electronically via the Student and Exchange Visitor Information System (SEVIS).
The Surface Transportation Board has received a request from the U.S. Wheat Associates (WB20-40—8/7/20) for permission to use select data from the Board's 1984-2019 Unmasked Carload Waybill Samples. Also, their request asks for permission to access the masking factors. A copy of this request may be obtained from the Board's website under docket No. WB20-40.
The waybill sample contains confidential railroad and shipper data; therefore, if any parties object to these requests, they should file their objections with the Director of the Board's Office of Economics within 14 calendar days of the date of this notice. The rules for release of waybill data are codified at 49 CFR 1244.9.
U.S. Trade and Development Agency.
Request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the U.S. Trade and Development Agency's (USTDA) intention to request an extension for a currently approved information collection for Evaluation of USTDA Performance. USTDA invites general public and other Federal agencies to take this opportunity to comment on the following proposed information collection. Comments may be sent to Lisa Jayne Lawn, Administrative Officer. All comments received will be available for public inspection during regular business hours at the same address.
Send comments on or before October 13, 2020 to be assured of consideration.
To access and review all of the documents related to the information collection listed in this notice, please use
Contact Lisa Jayne Lawn, Administrative Officer, Attn: PRA, U.S. Trade and Development Agency, 1101 Wilson Blvd., Suite 1100, Arlington, VA 22209-3901; Tel.: (703) 875-4357, Fax: (703) 875-4009; Email:
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 responses to this notice will be summarized and included in the request for OMB approval.
All comments will become a matter of public record.
Federal Transit Administration (FTA), Transportation (DOT).
Notice of availability of final circular.
The Federal Transit Administration (FTA) has placed in the docket and on its website guidance in the form of FTA Circular 7050.1B,
The effective date of the Circular is August 14, 2020.
For policy guidance questions, Margaretta Veltri, Office of Budget and Policy, Federal Transit Administration, 1200 New Jersey Ave. SE, Room E52-315, Washington, DC 20590, phone: (202) 366-5094, or email,
This notice provides a summary of the final changes to the
FTA is finalizing its update to its Joint Development Circular to increase flexibility for project sponsors to pursue joint development projects, reduce FTA oversight of joint development agreements negotiated between project sponsors and their partners, streamline FTA's project eligibility review process, and clarify prior guidance in FTA Circular 7050.1A. The final changes to the Circular affect: (1) The minimum threshold for the statutory “fair share of revenue” requirement; and (2) the submission and review process for FTA-assisted joint development projects. The final Circular also incorporates technical and conforming changes that increase clarity, conformity with existing law, and internal consistency.
This notice provides a summary of changes to Circular 7050.1A, and addresses comments received in response to the April 18, 2019
Section 5302(3)(G)(iii) of title 49, United States Code, requires FTA-assisted joint development projects to provide a “fair share of revenue that will be used for public transportation.” Prior to the October 1, 2014 effective date of Circular 7050.1A, FTA generally deferred to a project sponsor's assessment of a “fair share of revenue,” and did not require any specific amount of revenue for transit from a joint development project. FTA defined “fair share of revenue” in Circular 7050.1A to incorporate a minimum revenue threshold that a joint development project must produce for transit purposes that at least equals the federal government's initial investment in the joint development project. (79 FR 50,728; 50,731-32).
Over time, FTA has found that defining a fair share of revenue minimum threshold unnecessarily limits the pool of potential projects by reducing flexibility for project sponsors and their partners to determine what amounts to a fair share of revenue. Accordingly, the proposed Circular eliminated the fair share of revenue minimum threshold and monetary requirement. FTA received several comments supporting this proposal. In response, the final Circular adopts this change.
FTA allows the amount and form of revenue received by the project sponsor to be negotiated between joint development parties. Consistent with the proposed Circular and Circular 7050.1A, the project sponsor must continue to report to FTA the amount and source of the revenue it will receive, and the revenue must be used for transit purposes. FTA advises in the final Circular that the project sponsor should determine how to document its reasonable determination that the terms and conditions of the joint development improvement (including the share of revenue for public transportation which shall be provided thereunder) are reasonable and fair to the recipient. For example, a project sponsor's Board of Directors (or similar governing body) could, following a reasonable investigation, document the fair share of revenue determination in a Board resolution or other Board materials. This change provides discretion to the project sponsor, while also ensuring compliance with the fair share of revenue requirement in lieu of the certificate of compliance and baseline market analysis that FTA no longer requires, as discussed in Section (B) below.
Further, in response to a comment, and to provide additional flexibility to the project sponsor, FTA will no longer reserve the right to decline joint development project funding or approval if the project does not generate revenue for the project sponsor.
Circular 7050.1A prescribed a process by which project proposals are submitted to FTA for review. It required a formal project proposal to include: (1) A completed project request form that contains pertinent information about the joint development project, including how the eligibility criteria are to be satisfied; (2) all proposed agreements between the project sponsor and project partners; (3) an executed certificate of compliance; and (4) two forms identifying other required and supplemental documentation, including a baseline market analysis to demonstrate a good faith effort to provide a fair share of revenue to the project sponsor.
FTA will update the project request form to reflect the changes regarding the “fair share of revenue” requirement
FTA has determined that the elimination of the fair share of revenue minimum threshold makes the submission of a baseline market analysis and certificate of compliance unnecessary. Accordingly, the proposed Circular no longer required project sponsors to submit either document. In response to several comments expressing support for this proposal, the final Circular finalizes these changes. This will streamline the review of FTA-assisted joint development projects by reducing the amount of paperwork that project sponsors must prepare and FTA must review. In response to another comment, FTA encourages, but does not require, project sponsors to conduct baseline market analyses to better understand current market conditions and evaluate the viability of joint development projects.
The final Circular incorporates several minor edits for clarity and ease of reading. One commenter noted that certain defined terms were not included in the text of the document. FTA has reviewed all defined terms to ensure all are used in the final Circular. For example, FTA has removed “original federal investment” and “affordable housing” from the list of definitions in Chapter I. These definitions are unnecessary because all joint development projects now are subject to the same statutory fair share of revenue requirements.
Supporting access to affordable housing is a long-standing goal of FTA's joint development program. In Circular 7050.1A, only certain community service projects, publicly operated projects, and affordable housing projects were exempt from the fair share of revenue minimum threshold requirement. In this final Circular, however, FTA no longer defines a minimum fair share of revenue threshold for any type of joint development project. Two commenters indicated that this change will increase flexibility for project sponsors to pursue a greater range of affordable housing projects.
The final Circular also no longer includes a definition of “incidental use” in Section IV.3.e, as the term is already defined in Chapter I. To the extent practicable, FTA has removed redundant references to FTA Circulars and replaced them with direct references to the underlying statutes and regulations on which the text of the Circular is based.
The distinction between joint development and public-private partnerships, as defined, was edited in Section II.1.c of the Circular for clarity and to conform with the definition of public-private partnership in 49 CFR 650.5.
FTA also updated the Environmental Requirements in Section V.3 of the Circular for clarity and accuracy, and added a reference to the underlying statute for NEPA re-evaluations (23 CFR 771.129). The Civil Rights sections (Sections V.5.b and V.6) were updated for clarity and accuracy as well, and to accurately reflect the nondiscrimination prohibitions listed in 49 U.S.C. 53329(b).
The final Circular incorporates technical corrections for conformity with existing law. For example, 49 U.S.C. 5302(3)(G)(i) requires that FTA-assisted joint development projects either enhance economic development or incorporate private investment. In Section III.3.a.2 of the proposed Circular, FTA reserved the right to decline joint development project funding or approval if the level of private investment was not meaningful to promote an economic benefit. FTA has determined that this language conflates the statutory text, and clarifies that per § 5302(3)(G)(i), FTA requires a showing of either enhancing economic development or incorporating private investment—not both. Accordingly, FTA will no longer reserve the right to decline project funding or approval if the level of private investment is not meaningful to promote an economic benefit. Further, FTA clarified the use of the terms “program income” and “period of performance” when describing proceeds generated from joint development projects. “Program income” is defined as gross income “generated by a supported activity or earned as a result of the Federal award during the period of performance.” (2 CFR 200.80). “Period of performance” is defined as the duration of time designated within the initial grant. (2 CFR 200.77). FTA has determined that the term “program income” does not accurately describe proceeds derived from FTA-assisted joint development projects, as such projects often continue beyond the time designated within an initial grant. For clarity and accuracy, FTA has therefore revised the term “program income” to “revenue” in several places throughout the Circular.
FTA has also updated the final Circular to ensure internal consistency. Although FTA declines to provide a minimum threshold for both the statutory “fair share of revenue” and “fair share of costs” requirements, the Circular provided an inconsistent level of discretion to the project sponsor for each requirement. As discussed in Section (A) above, with respect to “fair share of revenue,” the final Circular eliminates FTA's reservation of the right to decline joint development project funding or approval if the project does not generate revenue. For consistency, FTA has eliminated a similar restriction with respect to the “fair share of costs” requirement—FTA will no longer reserve the right to decline joint development project funding or approval if a rental payment, or other means, is less than the actual cost to the project sponsor to operate and maintain the space in its facility. FTA made this change because this language unnecessarily inhibits a project sponsor's flexibility when making a “fair share of costs” determination and is inconsistent with the level of discretion that FTA provides with respect to the “fair share of revenue” requirement.
FTA has also determined that the Circular provided inconsistent guidance on how a project sponsor should document compliance with certain statutory requirements. In response to comments regarding the “fair share of revenue” determination, the final Circular incorporates a recommendation that the project sponsor should determine how to document its reasonable determination that the terms and conditions of the joint development improvement (including the share of revenue for public transportation that shall be provided thereunder) are reasonable and fair to the recipient. For consistency, the final Circular incorporates similar recommendations with respect to the § 5302(3)(G)(i) “private investment” and § 5302(3)(G)(iv) “fair share of costs” determinations. Regarding “private investment,” the final Circular advises that a project sponsor should determine how to document its reasonable determination that the level of private investment is reasonable. Regarding “fair share of costs,” the final Circular advises that a project sponsor should determine how to document its reasonable determination that a rental payment, or other means, is reasonable and fair to the recipient. These changes ensure a consistent level of flexibility and discretion to the project sponsor when documenting its compliance with each of these statutory requirements.
Twelve parties submitted sixty-one comments in response to FTA's April
In the Notice of Proposed Update to the Joint Development Circular, FTA invited comments on the proposal to no longer define a minimum revenue threshold. Section 5302(3)(G)(iii) of title 49, United States Code, requires FTA-assisted joint development projects to provide a “fair share of revenue that will be used for public transportation.” Removing the minimum revenue threshold for the fair share of revenue requirement increases flexibility by allowing project sponsors to determine what constitutes a fair share of revenue in joint development projects. FTA will still require the project sponsor to report the expected amount of revenue it will receive, and its funding sources.
FTA received fifteen comments on the fair share of revenue requirement, most of which supported no longer defining a fair share of revenue minimum threshold. One commenter suggested FTA clarify that the removal of a minimum threshold should not be interpreted as a fair market value requirement by default. One comment sought specific clarification of the documentation that would be required to demonstrate a fair share of revenue meeting FTA's expectations.
Two commenters asked when to report on the expected revenue for a project, specifically: (1) Whether the amount of revenue should be reported as part of the joint development application or later in the joint development process, and (2) if a determination of revenue is required in the joint development submission, whether this still functionally creates a minimum threshold. Another commenter sought clarification on how the proposed changes would affect joint development projects that advance community service or publicly operated projects, or affordable housing.
One commenter suggested FTA
No longer defining a fair share of revenue minimum threshold is not new for FTA's joint development process. In 2007, FTA's guidance on joint development deferred to project sponsors and parties involved to determine what constitutes a fair share of revenue (72 FR 5788). The final updated Circular will no longer impose a fair share minimum threshold and defers to the project sponsors and parties involved to determine a fair share of revenue. In response to comments received, FTA has removed the provision reserving FTA's right to decline funding for joint development projects that do not generate revenue. FTA has declined to add clarification that the elimination of a minimum threshold should not be interpreted as a fair market value requirement by default, as this would be inconsistent with FTA's policy to not define “fair share of revenue.” In response to comments on reporting requirements for expected revenue, FTA will continue to require the project sponsor to report the fair share of revenue and the sources of funding in the joint development application submitted to FTA. In response to comments regarding the documentation of a fair share of revenue determination, FTA has added a recommendation that the project sponsor should determine how to document its reasonable determination that the terms and conditions of the joint development improvement (including the share of revenue for public transportation that shall be provided thereunder) are reasonable and fair to the recipient. FTA has adopted similar recommendations with respect to the statutory “private investment” and “fair share of costs” requirements.
Since FTA will no longer define a fair share of revenue threshold, the proposed changes will now require all joint development projects to follow the same requirements regarding the fair share of revenue—including community service projects, publicly operated projects, and affordable housing.
In response to the suggestion that FTA require the project sponsor's General Manager or Chief Executive Officer (CEO) to certify that the terms and conditions of the joint development project are commercially reasonable and fair to the project sponsor, FTA has removed this requirement. It will be at the discretion of the project sponsor and parties involved if they want the General Manager or CEO to certify the joint development project.
FTA received seven comments on the proposed changes to the submission and review process. Most comments expressed support for the changes. Under the proposed changes, FTA will no longer require project sponsors to submit a baseline market analysis or certificate of compliance. One commenter noted that a baseline market study may continue to be useful in providing an expected amount for the fair share of revenue; another commenter suggested updating the Certificate of Compliance requirement rather than eliminating it.
FTA agrees that a baseline market study may continue to be useful in providing an expected amount for the fair share of revenue. While a baseline market analysis is no longer required for submission, project sponsors are still encouraged to conduct baseline market analyses to better understand current market conditions and evaluate the viability of joint development projects.
Eliminating the Certificate of Compliance requirement will streamline the review of FTA-assisted joint development projects by reducing the amount of paperwork that project sponsors must prepare and FTA must review. However, when requesting a formal FTA review of the proposed project, a project sponsor will still submit a completed Joint Development Project Request form and a proposed Joint Development Agreement, along with any supplemental documentation. FTA approval of a proposed joint development project will be contingent upon the project sponsor satisfying the eligibility criteria set forth in 49 U.S.C. 5302(3)(G) and complying with the Uniform Assistance and Real Property Acquisition Policies Act of 1970, as amended (Uniform Act), and the Uniform Administrative Requirements at 2 CFR parts 200 and 1201.
Project sponsors are also encouraged to submit joint development project proposals for preliminary FTA review, prior to determining the terms and conditions to be agreed upon by all parties in the joint development project.
FTA received thirty-nine general comments, covering a wide range of topics, including: Real property, the period of performance as it pertains to program income, and FTA policy. Several commenters requested clarification on the requirements and terminology in the Circular. Comments
Nine comments—including eight from transit agencies—were written in direct support of the proposed changes to the Circular. Sixteen comments addressed concerns or asked questions about real property; specifically regarding disposition, incidental use, and federal requirements on FTA-funded real property. Three comments sought clarification of the term “period of performance” under which FTA requirements attach. Eleven comments offered suggestions for clarifying language in the Circular generally. One of these comments suggested that in Section III.3.a of the Circular, FTA should consolidate the “enhances economic development” and “incorporates private investment” sub- elements into one element.
FTA has included insights from several comments, and answered many of the questions received, in the final updates to the Circular. However, several comments addressed subjects outside the scope of the proposed changes. These comments were reviewed and will be useful in the development of FTA programs and guidance in the future.
Regarding real property, any joint development project that includes FTA funding or FTA-assisted property is an FTA-assisted joint development project and must comply with the requirements and procedures set forth in Circular 7050.1B. FTA-assisted property includes land previously acquired with FTA funds.
While joint development can be considered a form of transit-oriented development, it is usually much smaller in scope and always uses FTA-assisted project property or a direct investment of FTA grant funds. FTA assistance may not be used in the
Under the definition of program income, “period of performance” refers to the duration of time designated within the initial grant. In response to a comment requesting clarification regarding FTA's use of the terms “program income” and “period of performance” when describing proceeds generated from joint development projects, FTA has revised “program income” to “revenue” in several places throughout the Circular. Suggestions to apply separate federal requirements to joint development projects using real property are outside the scope of this update. Terminology in this Circular has been updated only as it relates to substantive changes in policy related to the “fair share of revenue” requirement and the submission and review process for FTA-assisted joint development projects, as well as the technical and conforming changes discussed in Section (II.C) above.
FTA disagrees that the “enhances economic development” and “incorporates private investment” sub-elements should be consolidated in Section III.3.a of the Circular. Consolidating these two items would conflate the text of 49 U.S.C. 5302(3)(G)(i), which requires either economic enhancement or private investment—not both.
Federal Transit Administration, Transportation (DOT).
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection Requirements (ICRs) abstracted below have been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describe the nature of the information collection and their expected burdens.
Comments must be submitted on or before September 14, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Tia Swain, Office of Administration, Management Planning Division, 1200 New Jersey Avenue, SE, Mail Stop TAD-10, Washington, DC 20590 (202) 366-0354 or
The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, Section 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On October 18, 2019, FTA published a 60-day notice (84 FR 56012) in the
Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). 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);
The summaries below describe the nature of the information collection requirements (ICRs) and the expected
Bidders or offerors must submit certificates to assure compliance with Buy America, the purchaser's contract specifications (for rolling stock only), and Federal motor vehicle safety requirements (for rolling stock only). The information collected on the certification forms is necessary for FTA recipients to meet the requirements of 49 U.S.C. Section 5323(j) and (m). In addition, FTA recipients are required to certify, as part of their annual Certifications and Assurances, that they will comply with pre-award and post-delivery audit requirements for rolling stock under 49 CFR part 661.
Federal Transit Administration, DOT.
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection Requirements (ICRs) abstracted below have been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describe the nature of the information collection and their expected burdens.
Comments must be submitted on or before September 14, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Tia Swain, Office of Administration, Management Planning Division, 1200 New Jersey Avenue SE, Mail Stop TAD-10, Washington, DC 20590 (202) 366-0354 or
The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, Section 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On October 18, 2019, FTA published a 60-day notice (84 FR 56012) in the
Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). 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);
The summaries below describe the nature of the information collection requirements (ICRs) and the expected burden. The requirements are being submitted for clearance by OMB as required by the PRA.
No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
To achieve this purpose, each Federal department and agency which provides financial assistance for any program or activity is authorized and directed by the Department of Justice (DOJ) to effectuate provisions of Title VI for each program or activity by issuing generally applicable regulations or requirements. The Department of Transportation (DOT) has issued its regulations implementing this DOJ mandate.
In this regard, the responsibility of the FTA is to ensure that Federally-supported transit services and benefits are distributed by applicants, recipients, and subrecipients of FTA assistance in a manner consistent with Title VI. The employment practices of a grant applicant, recipient, or sub-recipient are also covered under Title VI if the primary purpose of the FTA-supported program is to provide employment or if those employment practices would result in discrimination against beneficiaries of FTA-assisted services and benefits.
FTA policies and requirements are designed to clarify and strengthen Title VI (service equity) procedures for FTA grant recipients by requiring submission of written plans and approval of such plans by the agency. All project sponsors receiving financial assistance pursuant to an FTA-funded project shall not discriminate in the provision of services because of race, color, or national origin. Experience has demonstrated that a program requirement at the application stage is necessary to assure that benefits and services are equitably distributed by grant recipients. The requirements prescribed by the Office of Civil Rights are designed to accomplish this objective and diminish possible vestiges of discrimination among FTA grant recipients. FTA's assessment of the requirements indicated that the formulation and implementation of the Title VI Program should occur with a decrease in costs to such applicants and recipients.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
Veterans Health Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 13, 2020.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Brian McCarthy at (202) 615-9241.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
OMB Collection 2900-0823 now includes VA Form 10-10143, Election to Receive Authorized Non-VA Care and Selection of Provider for the Veterans Community Care Program; VA Form 10-10143a, Veterans Community Care Health Insurance Certification; VA Form 10-10143b, Submission of Medical Record Information under the Veterans Community Care Program; VA Form 10-10143c, Submission of Information on Credentials and Licenses by Eligible Entities and Providers; and VA Form 10-10143e, Secondary Authorization Request for VA Community Care. In addition, two new forms that received emergency PRA clearances from OMB in 2020 are included in 2900-0823: VA Form 10-10143f, Community Care Document Cover Sheet; and VA Form 10-10143g, Non-VA Hospital Emergency Notification.
VA seeks to update OMB collection 2900-0823 to implement the Veterans Community Care Program by updating the title of VA forms and any associated statutory citations to be consistent with the new program and the MISSION Act, by adding a new cover sheet to use when submitting documentation from providers of non-VA emergent care, by adding a new 72-hour notification form to be used when a Veteran receives emergent care from a non-VA provider, and by updating burden hours to account for estimated increased use of
This collection of information is required to properly adjudicate and implement the requirements of the MISSION Act.
a. VA Form 10-10143 will collect Veteran information on whether covered Veterans would elect to receive authorized care under the Veterans Community Care Program (VCCP) if certain conditions are met, as required by 38 U.S.C. 1703(d)(3). This form also will allow a covered Veteran to specify a particular non-VA entity or provider.
b. VA Form 10-10143a will collect other health insurance information from covered Veterans who elect to participate in the VCCP, as required by 38 U.S.C. 1705A. This information also is required by 38 U.S.C. 1703(j), which requires VA to recover or collect reasonable charges for community care that is furnished from a health care plan contract described in 38 U.S.C. 1729.
c. VA Form 10-10143b will collect health records of covered Veterans from non-VA health care entities and providers for care authorized under the VCCP, as required by 38 U.S.C. 1703(a)(2)(A), which requires VA to establish a mechanism to receive medical records from non-VA providers. A copy of all medical and dental records (including but not limited to images, test results, and notes or other records of what care was provided and why) related to a Veteran's care provided under the VCCP must be submitted to VA, including any claims for payment for the furnishing of such care.
d. VA Form 10-10143c will collect information from non-VA entities and providers concerning relevant credentials and licenses as required for such entities or providers to furnish care and services generally. This information is authorized by section 133 of the MISSION Act, which requires VA to establish competency standards for non-VA providers, as well as 38 U.S.C. 1703C(a)(1), which requires VA to establish certain standards of quality for furnishing care and services (including through non-VA providers).
e. VA Form 10-10143e will collect secondary authorization requests from non-VA entities and providers to furnish care and services in addition to or supporting the original authorization for care. This information is required by 38 U.S.C. 1703(a)(3), which establishes that a covered Veteran may only receive care or services under the VCCP upon VA's authorization of such care or services.
f. VA Form 10-10143f will allow for the submission of paper documents in support of a non-VA provider claim for emergency care rendered in the community when not accompanied by a paper Health Care Claim form. This Community Care Document Cover Sheet will be used exclusively for the submission of medical documentation for unauthorized emergent services for patients otherwise covered by VA.
g. VA Form 10-10143g will be used to provide 72-hour notification to VA when a Veteran receives emergent care from a non-VA provider. This form should be completed by the non-VA provider within 72 hours of the beginning of treatment.
By direction of the Secretary.
Environmental Protection Agency (EPA).
Final rule.
The U.S. Environmental Protection Agency (EPA) is taking final action on the residual risk and technology review (RTR) conducted for the Miscellaneous Coating Manufacturing (MCM) source category regulated under national emission standards for hazardous air pollutants (NESHAP). These final amendments also address emissions during periods of startup, shutdown, and malfunction (SSM), including clarifying regulatory provisions for certain vent control bypasses, provisions for electronic reporting of performance test results, performance evaluation reports, compliance reports, and Notification of Compliance Status (NOCS) reports; and provisions to conduct periodic performance testing of oxidizers used to reduce emissions of organic hazardous air pollutants (HAP).
This final rule is effective on August 14, 2020. The incorporation by reference (IBR) of certain publications listed in the rule is approved by the Director of the Federal Register as of August 14, 2020.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2018-0747. All documents in the docket are listed on the
For questions about this final action, contact Ms. Angela Carey, Sector Policies and Programs Division (E143-01), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-2187; fax number: (919) 541-0516; and email address:
Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source category listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding
In addition to being available in the docket, an electronic copy of this final action will also be available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at:
Additional information is available on the RTR website at
Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit (the Court) by October 13, 2020. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.
Section 307(d)(7)(B) of the CAA further provides that only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. This section also provides a mechanism for the EPA to reconsider the rule if the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within the period for public comment or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule. Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding
Section 112 of the CAA establishes a two-stage regulatory process to address emissions of HAP from stationary sources. In the first stage, we must identify categories of sources emitting one or more of the HAP listed in CAA section 112(b) and then promulgate technology-based NESHAP for those sources. “Major sources” are those that emit, or have the potential to emit, any single HAP at a rate of 10 tons per year (tpy) or more, or 25 tpy or more of any combination of HAP. For major sources, these standards are commonly referred to as maximum achievable control technology (MACT) standards and must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). In developing MACT standards, CAA section 112(d)(2) directs the EPA to consider the application of measures, processes, methods, systems, or techniques, including but not limited to those that reduce the volume of or eliminate HAP emissions through process changes, substitution of materials, or other modifications; enclose systems or
For these MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as MACT floor requirements, and which may not be based on cost considerations. See CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than floors for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor under CAA section 112(d)(2). We may establish standards more stringent than the floor, based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.
In the second stage of the regulatory process, the CAA requires the EPA to undertake two different analyses, which we refer to as the technology review and the residual risk review. Under the technology review, we must review the technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies),” no less frequently than every 8 years, pursuant to CAA section 112(d)(6).
The EPA promulgated the MCM NESHAP on December 11, 2003 (68 FR 69185). The standards are codified at 40 CFR part 63, subpart HHHHH. The MCM industry consists of facilities that are engaged in their manufacture without regard to the particular end uses or consumers of such products. The manufacturing of these products may occur in any combination at any facility. The source category covered by this MACT standard currently includes 43 facilities.
The MCM source category includes the collection of equipment (
The equipment controlled by the MCM NESHAP includes process vessels, storage tanks for feedstocks and products, equipment leak components (pumps, compressors, agitators, pressure relief devices (PRDs), sampling connection systems, open-ended valves or lines, valves, connectors, and instrumentation systems), wastewater tanks, heat exchangers, and transfer racks.
The current NESHAP regulates process vessels and storage tanks based on the volume of the process vessel or storage tank and the maximum true vapor pressure of the organic HAP processed or stored. Control requirements range from the use of tightly fitted lids on process vessels to also capturing and reducing organic HAP emissions through the use of add-on controls (
The NESHAP regulates emissions from equipment leaks at existing sources by requiring compliance with leak inspection and repair provisions using sight, sound, and smell in 40 CFR part 63, subpart R, or alternatively, the leak detection and repair (LDAR) provisions in 40 CFR part 63, subpart TT or UU. New sources are required to comply with the LDAR provisions in 40 CFR part 63, subpart TT or UU.
The NESHAP regulates wastewater streams by requiring the use of fixed roofs on wastewater tanks, treating the wastewater (either on-site or off-site) as a hazardous waste under 40 CFR part 264, 265, or 266, or using enhanced biological treatment if the wastewater contains less than 50 parts per million by weight (ppmw) of partially soluble HAP. If the wastewater is treated as a hazardous waste under 40 CFR part 264, 265, or 266, it may be treated by steam stripping or incineration. These standards apply only to wastewater streams that contain total partially soluble and soluble HAP at an annual average concentration greater than or equal to 4,000 ppmw and loads greater than or equal to 750 pounds per year (lb/yr) at an existing source. For new sources, these standards apply only to wastewater streams that contain total partially soluble and soluble HAP at an annual average concentration greater
The NESHAP regulates transfer operations if the operation involves the bulk loading of coating products that contain 3.0 million gallons per year or more of HAP with a weighted average HAP partial pressure greater than or equal to 1.5 pounds per square inch, absolute. Regulated transfer operations are required to reduce emissions by using a closed vent system and a control device (other than a flare) to reduce emissions by at least 75 percent; using a closed vent system and a flare for a non-halogenated vent stream; or using a vapor balancing system. When a non-flare combustion device is used to control a halogenated vent stream, then a halogen reduction device must be used either before or after the combustion device. If used after the combustion device, the halogen reduction device must meet either a minimum 95-percent reduction or a maximum 0.45 kilograms per hour (kg/hr) emission rate of hydrogen halide or halogen. If used before the combustion device, the halogen reduction device must meet a maximum 0.45 kg/hr emission rate of hydrogen halide or halogen.
The NESHAP requires heat exchangers to meet the provisions of 40 CFR part 63, subpart F, 40 CFR 63.104. Section 63.104 requires the implementation of a LDAR or monitoring program for heat exchange systems, unless the system meets certain design and operation provisions, or it is a once-through system that meets certain National Pollution Discharge Elimination System (NPDES) permit provisions.
On September 4, 2019, the EPA published a proposed rule in the
We proposed the following amendments to improve rule effectiveness, provide regulatory flexibility, and comply with a legal ruling:
• A new requirement for electronic submittal of notifications, semi-annual reports, and compliance reports (which include performance test reports);
• revisions to the SSM provisions of the NESHAP to ensure that they are consistent with the Court decision in
• revisions to account for instances where 40 CFR part 63, subpart HHHHH, cross-references other subparts that contain SSM provisions;
• language to add 40 CFR 63.8005(h) to clarify that any periods during which a control device for a process vessel is bypassed must be included in demonstrating compliance with the emission reduction provisions for process vessels in Table 1 to 40 CFR part 63, subpart HHHHH;
• revisions to 40 CFR 63.8000(b)(2), which allows the opening of a safety device at any time conditions require it to avoid unsafe conditions, to clarify that such an opening to avoid unsafe conditions is considered a deviation, unless it is a bypass of a control for a process vessel and accounted for as specified in 40 CFR 63.8005(h);
• removal of references to paragraph (d)(4) of the Occupational Safety and Health Administration (OSHA) Hazard Communication standard (29 CFR 1910.1200), which dealt with OSHA-defined carcinogens, and replacing that reference with a list of HAP that must be regarded as potentially carcinogenic based on EPA guidelines;
• a new requirement to fulfill performance testing and reestablish operating limits no less frequently than every 5 years for sources that are using add-on controls to demonstrate compliance, unless they are already required to perform periodic testing as a condition of renewing their title V operating permit; and
• to IBR alternative test methods and references to updated alternative test methods.
This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the MCM source category. This action also finalizes the changes to the NESHAP described in section II.C of this preamble, as proposed.
This section describes the final decisions for the MCM NESHAP (40 CFR part 63, subpart HHHHH) being promulgated pursuant to CAA section 112(f). The EPA proposed no changes to this subpart based on the risk review conducted pursuant to CAA section 112(f). In this action, we are finalizing our proposed determination that risks from this source category are acceptable, and that the NESHAP at 40 CFR part 63, subpart HHHHH, provides an ample margin of safety to protect public health, and that more stringent standards are not necessary to prevent an adverse environmental effect. The EPA received no new data or other information during the public comment period that causes us to change that proposed determination. Therefore, we are not requiring additional emission controls under CAA section 112(f)(2) for this subpart in this action.
We determined that there are no developments in practices, processes, and control technologies that warrant revisions to the MACT standards for this source category. The EPA received no new data or other information during the public comment period that causes us to change that proposed determination. Therefore, we are not finalizing revisions to the MACT standards under CAA section 112(d)(6).
We are finalizing the proposed amendments to the MCM NESHAP to remove and revise provisions related to SSM. In its 2008 decision in
Table 10 to subpart HHHHH of 40 CFR part 63 (General Provisions applicability table) is being revised to change the specification of the requirements that apply during periods of SSM. We eliminated or revised certain recordkeeping and reporting requirements related to the eliminated SSM exemptions. The EPA also made other harmonizing changes to remove or modify inappropriate, unnecessary, or redundant language in the absence of the SSM exemptions. We proposed to find that facilities in this source category can meet the applicable emission standards in the MCM NESHAP at all times, including periods of startup and shutdown, without additional standards or work practices. The EPA considered the requirements for control device bypasses and for safety devices that we are finalizing in this rule when proposing to find that the standards can be met at all times after the SSM provisions are revised. We received no information to cause us to change our conclusion; therefore, the EPA is finalizing the proposed determination that no additional standards are needed to address emissions during startup and shutdown periods. The legal rationale and detailed changes for startup and shutdown periods that we are finalizing here are set forth in the September 4, 2019, preamble to the proposed rule. See 84 FR 46629 through 46630.
Further, as proposed, the EPA is not including standards for malfunctions, except as related to the proposed revisions related to control device bypasses and for safety devices. As discussed in section IV.D of the September 4, 2019, proposal preamble, the EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards, although the EPA has the discretion to set standards for malfunctions where feasible. See 84 FR 46629 through 46630. For this source category, we proposed at 40 CFR 63.8005(h) to provide a method to account for control device bypass periods (including malfunction periods) when evaluating compliance with the overall control efficiency requirements for process vessels in Table 1 to 40 CFR part 63 subpart HHHHH, and we solicited commenters to provide additional information.
We are revising the General Provisions table to 40 CFR part 63, subpart HHHHH, to eliminate requirements that include rule language providing an exemption for periods of SSM. Finally, we are revising as proposed the Deviation Notification Report and related records as they relate to malfunctions, as further described below. As discussed in detail in the proposal preamble, these revisions are consistent with the requirement in 40 CFR 63.8000(a) that the standards apply at all times. Refer to section IV.D.1 of the proposal preamble for a detailed discussion of these amendments (84 FR 46629, September 4, 2019).
We are finalizing amendments to account for instances where 40 CFR part 63, subpart HHHHH, cross-references other subparts that contain SSM provisions. Listed in 40 CFR 63.8000(f) are the referenced provisions in subparts SS, TT, and UU of 40 CFR part 63 that contain references to SSM periods that will no longer apply after the compliance date for these amendments. Listed in 40 CFR 63.8000(f)(10) through (22) are the paragraphs or phrases within the paragraphs that will not apply after the applicable compliance date for the amendments as a result of the final SSM revisions.
Because we are finalizing the revisions to remove the SSM provisions and require compliance at all times, we are also finalizing the amendment to add 40 CFR 63.8005(h) to account for bypass periods in determining compliance with the emission percent reduction provisions in Table 1 to 40 CFR part 63, subpart HHHHH, for process vessels. These amendments will apply to process vessels with closed vent systems and add-on controls that contain bypass lines that could divert a vent stream to the atmosphere. We are finalizing the revisions that owners or operators must measure and record during each semiannual compliance period the hours that the control device was bypassed and the source's total operating hours. They must use the overall control efficiency required in Table 1, the total operating hours, and the control efficiency of the control device to determine the allowable bypass hours during the semiannual compliance period using Equation 1 in 40 CFR 63.8005(h). These changes are required because SSM periods that may involve bypassing of the control device cannot be excluded and must now be included in determining compliance.
Because we are finalizing the revisions to remove the SSM provisions and require compliance at all times, we are also finalizing the revisions to 40 CFR 63.8000(b)(2) so that opening of a safety device to avoid unsafe conditions is considered a deviation, unless it is a bypass of a control for a process vessel and accounted for as specified in 40 CFR 63.8005(h). We are also finalizing the proposed revisions to revise 40 CFR 63.8080(c), which is the provision requiring a record of each time a safety device is opened, to add additional recordkeeping provisions consistent with those for other deviations. In the event a safety device is opened, the owners or operators will be required to comply with the general duty provision in 40 CFR 63.8000(a) to minimize emissions at all times, and to report and record information related to deviations as specified in 40 CFR 63.8075 and 63.8080, respectively, unless it is a bypass of a control for a process vessel and accounted for as specified in 40 CFR 63.8005(h).
The EPA is amending 40 CFR 63.8055(b)(4), as proposed, to remove a reference to paragraph (d)(4) of the OSHA's Hazard Communication standard addressing OSHA-defined carcinogens. We are replacing the reference to carcinogens in 29 CFR 1910.1200(d)(4) with a new table, Table 11 to 40 CFR part 63, subpart HHHHH, that lists those organic HAP that must be included in calculating total organic HAP content of a coating material if they are present at 0.1 percent or greater by mass. We are including organic HAP in Table 11 to 40 CFR part 63, subpart HHHHH, if they were categorized in the
The EPA is making several additional revisions to 40 CFR part 63, subpart HHHHH, to clarify text or correct typographical errors, grammatical errors, and cross-reference errors. These editorial corrections and clarifications are summarized in Table 2 of this preamble.
We are including in the final rule a requirement for facilities to conduct control device performance testing no less frequently than once every 5 years when using emission capture systems and add-on controls to demonstrate compliance. For facilities with title V permits that require comparable periodic testing prior to permit renewal, no additional testing is required, and we included provisions in the rule to allow facilities to harmonize the NESHAP testing schedule with a facility's current title V testing schedule.
The EPA is requiring owners or operators of MCM facilities to submit electronic copies of certain required notifications, semiannual reports, performance test reports, and performance evaluation reports, through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). The final rule requires that certain performance test results be submitted using the Electronic Reporting Tool. For the semiannual compliance reports, the final rule requires that owners or operators use the appropriate spreadsheet template to submit information to CEDRI. The final version of the template for this report is located on the CEDRI website.
The electronic submittal of the reports addressed in this rulemaking will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability and transparency, will further assist in the protection of public health and the environment, will improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of delegated state, local, tribal, and territorial air agencies and the EPA to assess and determine compliance, and will ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting also eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public. For a more thorough discussion of electronic reporting, see the memorandum,
The revisions to the MACT standards being promulgated in this action are effective on August 14, 2020.
For all of the provisions we are finalizing under CAA sections 112(d)(2) and (3), all affected source owners or operators must comply with all of the amendments no later than 3 years after the effective date of the final rule, or upon startup, whichever is later. As provided in CAA section 112(i), all new affected sources would comply with these provisions by the effective date of the final amendments to the MCM NESHAP, or upon startup, whichever is later.
All affected facilities would have to continue to meet the current provisions of 40 CFR part 63, subpart HHHHH, up to and no later than the applicable compliance date of the amended rule.
We are finalizing the amendments to the provisions for SSM by removing the exemptions from the emission limitations (
For all affected sources that commence construction or reconstruction on or before September 4, 2019, we are providing 3 years after the effective date of the final rule (or upon startup, whichever is later) for owners or operators to comply with the provisions that have been amended to remove the exemption from the emission limitations during SSM periods, with the exception of the vacated SSM exemptions contained in 40 CFR 63.6(f)(1) and (h)(1). We are
We are also adding a provision that notifications, performance test results, and semiannual compliance reports be submitted electronically, and that the semiannual compliance report be submitted electronically using a new template. We are requiring that all sources begin complying with the new electronic reporting provisions beginning no later than 3 years after the regulation's effective date.
The EPA selected these compliance dates based on experience with similar industries and the EPA's detailed justification for the selected compliance dates is included in the preamble to the proposed rule (84 FR 46634, September 4, 2019).
For each issue, this section provides a description of what we proposed and what we are finalizing for the issue, the EPA's rationale for the final decisions and amendments, and a summary of key comments and responses. For all comments not discussed in this preamble, comment summaries and the EPA's responses can be found in the comment summary and response document available in the docket.
Pursuant to CAA section 112(f), the EPA conducted a residual risk review and presented the results of this review, along with our proposed decisions regarding risk acceptability and ample margin of safety, in the September 4, 2019, proposed rule for 40 CFR part 63, subpart HHHHH (84 FR 46610). The results of the risk assessment for the proposal are presented briefly below in Table 3 of this preamble. More detail is in the residual risk technical support document,
Table 3 of this preamble provides a summary of the results of the inhalation risk assessment for the source category.
The results of the inhalation risk modeling using the source category emissions for both actual and allowable emissions, as shown in Table 3 of this preamble, indicate the estimated cancer maximum individual risk (MIR) is 6-in-1 million, with chromium (VI) compounds from process vents as the major contributor to the risk. The total estimated cancer incidence from this source category is 0.002 excess cancer cases per year, or one excess case in every 500 years. Approximately 3,700 people are estimated to have cancer risks greater than or equal to 1-in-1 million from HAP emitted from the affected sources in this source category. The estimated maximum chronic noncancer TOSHI for the source category is 0.4 (respiratory), driven by emissions of acrylic acid from process vents. No one is exposed to TOSHI levels greater than 1 due to emissions from this source category.
The results of the inhalation risk modeling using whole facility emissions data, as shown in Table 3 of this preamble, indicate that the estimated MIR is 20-in-1 million with emissions of hydrazine from sources subject to other standards driving the risk. These include 40 CFR part 63 subparts FFFF (Miscellaneous Organic Chemicals Manufacturing NESHAP), H (Hazardous Organic NESHAP), and EEEE (Organic Liquids Distribution), which are not part of this source category. The total estimated whole facility cancer incidence is 0.006 excess cancer cases per year. Approximately 50,100 people are estimated to have cancer risks greater than or equal to 1-in-1 million. The estimated maximum chronic noncancer TOSHI is 2 (for the neurological target organ), driven by emissions of hydrogen cyanide from non-MCM source category emissions from carbon fiber production. Approximately 80 people are estimated to be exposed to noncancer hazard index (HI) levels greater than 1.
As shown in Table 3 of this preamble, for source category emissions, the highest acute HQ based on the reasonable worst-case scenario is 2, based on the REL for glycol ethers. This is the highest HQ that is outside facility boundaries. One facility is estimated to have an HQ greater than 1 based on the REL, which is the only available benchmark for glycol ethers.
Potential multipathway health risks under a fisher and farmer/gardener scenario were identified using a three-tier screening assessment of the HAP known to be persistent and bio-
A screening-level evaluation of the potential adverse environmental risk associated with emissions of the PB-HAP listed above, plus acid gases (hydrogen chloride is the only reported acid gas), indicated that no ecological benchmarks were exceeded. For lead compounds, we did not estimate any exceedances of the secondary lead NAAQS.
We weighed all health risk factors, including those shown in Table 2 of this preamble, in our risk acceptability determination and proposed that the residual risks from the MCM source category are acceptable (section IV.B.1 of the proposal preamble, 84 FR 46625, September 4, 2019).
We then considered whether 40 CFR part 63, subpart HHHHH, provides an ample margin of safety to protect public health and prevents, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. In considering whether the standards should be tightened to provide an ample margin of safety to protect public health, we considered the same risk factors that we considered for our acceptability determination and also considered the costs, technological feasibility, and other relevant factors related to emissions control options that might reduce risk associated with emissions from the source category. Related to risk, the baseline risks were low, and regardless of the availability of further control options, little risk reduction could be realized. As discussed further in section IV.B of this preamble, the only developments identified in the technology review were control options for inorganic HAP and organic HAP from process vessels. Because the baseline risks are being driven by inorganic HAP from process vessels, we evaluated a control option for inorganic HAP emissions from process vessels located at MCM facilities that would be similar to those included in 40 CFR part 63, subpart CCCCCCC, the NESHAP for Area Sources for Paints and Allied Products Manufacturing. Additionally, we evaluated increasing the control efficiency requirements for organic HAP emissions from process vessels. The process vessel options did not result in a decrease to the MIR or to the maximum chronic noncancer TOSHI because the MIR facility already had controls in place. However, there was a reduction seen in the population exposed to a cancer risk of 1-in-1 million from 3,700 to 1,900 due to emissions reductions at other facilities. But, as described in section IV.C of the proposal preamble (84 FR 46626, September 4, 2019), we determined that these options were not cost effective. Therefore, given the low baseline risks and lack of options for further risk reductions, we proposed that additional emission controls for this source category are not necessary to provide an ample margin of safety (see section IV.B.2 of the proposal preamble, 84 FR 46626, September 4, 2019).
We have not changed any aspect of the risk assessment for the MCM source category as a result of public comments received on the September 4, 2019, proposal.
We received comments in support of and against the proposed residual risk review and our determination is that no revisions were warranted under CAA section 112(f)(2) for the source category. Generally, the comments that were not supportive of the determination from the risk reviews suggested changes to the underlying risk assessment methodology. For example, one commenter stated that the EPA should lower the acceptability benchmark so that risks below 100-in-1 million are unacceptable, include emissions outside of the source category assessed, and assume that pollutants with noncancer health risks have no safe level of exposure. After review of all the comments received, we determined that no changes are needed to the risk assessment. The comments and our specific responses can be found in the document,
As noted in our proposal, the EPA sets standards under CAA section 112(f)(2) using “a two-step standard-setting approach, with an analytical first step to determine an `acceptable risk' that considers all health information, including risk estimation uncertainty, and includes a presumptive limit on the maximum individual risk (MIR) of approximately 1-in-10 thousand” (see 54 FR 38045, September 14, 1989). We weigh all health risk factors in our risk acceptability determination, including the cancer MIR, cancer incidence, the maximum cancer TOSHI, the maximum acute noncancer HQ, the extent of noncancer risks, the distribution of cancer and noncancer risks in the exposed population, and the risk estimation uncertainties.
Since proposal, neither the risk assessment nor our determinations regarding risk acceptability, ample margin of safety, or adverse environmental effects have changed. For the reasons explained in the proposed rule, we determined that the risks from the MCM source category are acceptable, the current standards provide an ample margin of safety to protect public health, and more stringent standards are not necessary to prevent an adverse environmental effect. Therefore, we are not revising this subpart to require additional controls pursuant to CAA section 112(f)(2) based on the residual risk review, and we are readopting the existing standards under CAA section 112(f)(2).
Sources of HAP emissions regulated by the MCM NESHAP are process vessels, storage tanks, transfer racks, equipment leaks, wastewater streams, and heat exchange systems. MCM processes occur as batch operations, which involve intermittent or discontinuous feed of raw materials into equipment, and generally involve emptying of the equipment after the operation ceases and prior to beginning a new operation.
For process vessels, we evaluated two options that could be potentially considered technology developments under CAA section 112(d)(6). In the first option, we considered increasing the control efficiency requirement for process vessels at existing sources to
We estimated the costs of installing a thermal oxidizer on the six plants in the MCM source category that currently do not have a thermal oxidizer installed on process vessels. The costs were estimated using the
The second option for process vessels that we considered was to require controls to limit particulate matter (PM) HAP emissions when dry materials (
We estimated costs for both a fabric filter baghouse and a cartridge filter type of particulate control with a flow rate of 1,000 cubic feet per minute, plus 150 feet of flexible duct to capture the fugitive PM when dry matter is being added to the mixing vessel. The estimated cost effectiveness for this option ranged from $310,000 to $2,100,000 per ton of particulate HAP reduced. We also evaluated whether pigments could be added in a wetted or paste form, but not all pigments are available or can be used in wetted or paste form.
The EPA did not find the control technology development options considered for process vessels in this technology review to be cost effective or, in some cases, technologically feasible. Consequently, the EPA proposed that it is not necessary to amend the standards for process vessels under the technology review.
The MCM NESHAP requires existing sources to comply with the equipment leaks provisions in 40 CFR part 63, subpart R, NESHAP for Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations); subpart TT, NESHAP for Equipment Leaks, Control Level 1; or subpart UU, NESHAP for Equipment Leaks, Control Level 2. New sources must comply with the provisions of subpart UU or TT. Based on developments in other similar source categories, we identified as a technology alternative to the current standard a more stringent provision for existing sources that would eliminate sensory monitoring and require instrument monitoring with lower leak definitions than specified in 40 CFR part 63, subpart TT. For this alternative, we estimated the incremental emission reductions and cost effectiveness of employing instrument monitoring (EPA Method 21) with an equipment leak defined as instrument readings of 500 parts per million by volume (ppmv) for valves, 2,000 ppmv for pumps, and 500 ppmv for connectors. We estimated the costs of requiring instrument monitoring with more stringent leak definitions for four model plants with 25, 50, 100, or 200 process vessels. The estimated cost effectiveness for these model plants ranged from $107,000 per ton HAP removed to $22,000 per ton HAP removed for the smallest to largest model plant, and these values are higher than organic HAP cost-effectiveness values that we historically have considered reasonable. The EPA did not find the leak detection instrument monitoring option that was evaluated to be cost effective. Consequently, the EPA proposed that it was not necessary to amend the standards for equipment leaks under the technology review.
The MCM NESHAP regulates wastewater streams that contain total partially soluble and soluble HAP at an annual average concentration greater than or equal to 4,000 ppmw and load greater than or equal to 750 lb/yr at existing sources, or that contain greater than or equal to 1,600 ppmw and any partially soluble and soluble HAP load at new sources. Wastewater tanks used to store regulated wastewater streams must have a fixed roof, which may have openings necessary for proper venting of the tank, such as a pressure/vacuum vent or j-pipe vent. Regulated wastewater streams must be conveyed using hard piping and treated as a hazardous waste in accordance with 40 CFR part 264, 265, or 266 either on-site or off-site. Alternatively, if the wastewater contains less than 50 ppmw of partially soluble HAP, it may be treated in an enhanced biological treatment system that is located either on-site or off-site.
Because our technology review identified no developments in practices, processes, or controls for reducing wastewater emissions at MCM facilities, we evaluated developments in other industries with wastewater streams that contain organic HAP. We reviewed three options that were considered in other industry technology reviews for their applicability to the MCM wastewater streams. These options were:
(1) Requiring wastewater drain and tank controls at facilities.
(2) Requiring specific performance parameters (minimum fraction biodegraded, f
(3) Requiring wastewater streams with a volatile organic compound (VOC) content of 750 ppmw or higher to be treated by steam stripping prior to any other treatment process for facilities with high organic loading rates (
The EPA did not find any of the three wastewater stream control options evaluated to be cost effective. Consequently, the EPA proposed that it was not necessary to amend the standards for wastewater streams under the technology review.
The EPA did not identify in our technology review any developments in practices, processes, and control technologies for storage tanks, transfer operations (
Further explanation of the assumptions and methodologies for all options evaluated are provided in the memorandum,
We are making no changes to the conclusions of the technology review and are finalizing the results of the technology review for the MCM source category as proposed.
However, one commenter argued that the standard should be strengthened to reduce HAP emissions. The commenter argued that the EPA should establish a standard of zero allowed leaks to prohibit all uncontrolled releases, or to establish more stringent standards based on the latest advancements in LDAR. The commenter also argued that the EPA should establish more stringent standards for HAP metals based on the use of fabric filters when dry materials are added to process vessels, as in the Paints and Allied Products Manufacturing rule for area sources. Finally, the commenter argued that the EPA should establish standards for storage vessels based on internal floating roofs (IFR) or the use of closed vent systems and recovery or destruction devices. The commenter argued that CAA section 112(d)(6) does not allow the EPA to use cost as a factor in deciding whether more stringent standards should be adopted.
With respect to the role of cost in our decisions under the technology review, we note that courts have not required the EPA to demonstrate that a technology is “cost-prohibitive” in order not to require adopting a new technology under CAA section 112(d)(6); a simple finding that a control is not cost effective is enough. See
The option to require controls to limit PM HAP emissions from process vessels in which dry materials containing inorganic HAP are added to the process vessel was considered during the proposal for this rule. As stated in the MCM technology review memorandum,
Also, as described in the MCM technology review memorandum, we evaluated installing an IFR, external floating roof, closed vent system to an emission control device, vapor balancing, and considered maximum total vapor pressure thresholds; however, we did not identify any control technology development options for storage tanks to be cost effective.
Finally, in the MCM technology review memorandum, we concluded that more stringent leak definitions for pumps, valves, and connectors using EPA Method 21 equipment leak monitoring were not cost effective for this source category.
For the reasons explained in the preamble to the proposed rule (84 FR 46626, September 4, 2019) and in the comment responses above in section IV.B.3 of this preamble, and the response to comment document, we are making no changes and are finalizing the results of the technology review as proposed.
In the September 4, 2019, action, we proposed amendments to the MCM NESHAP to remove and revise provisions related to SSM that are not consistent with the requirement that the standards apply at all times. More information concerning the elimination of SSM provisions is in the preamble to the proposed rule (84 FR 46629, September 4, 2019).
We proposed amendments to account for instances where 40 CFR part 63, subpart HHHHH, cross-references other subparts that contain SSM provisions. We proposed 40 CFR 63.8000(f) that lists the referenced provisions, including individual paragraphs or phrases, in subparts SS, TT, and UU of 40 CFR part 63 that contain references to SSM periods that will no longer apply after the compliance date for the final amendments as a result of the final SSM revisions.
Because we proposed to remove the SSM provisions and require compliance at all times, we proposed to amend 40 CFR 63.8000(c) to account for bypass periods in determining compliance with the emission percent reduction provisions in Table 1 to 40 CFR part 63, subpart HHHHH, for process vessels. These amendments apply to process vessels with closed vent systems and add-on controls that contain bypass lines that could divert a vent stream to the atmosphere. We proposed that owners or operators must measure and record during each semiannual compliance period the hours that the control device was bypassed and the source's total operating hours. They must then use the overall control efficiency required in Table 1, the total operating hours, and the control efficiency of the control device to determine the allowable bypass hours during the semiannual compliance period using proposed Equation 1 in 40 CFR 63.8005(h). These changes are required because SSM periods that may involve bypassing of the control device cannot be excluded and must now be included in determining compliance.
Because we proposed to remove the SSM provisions and require compliance at all times, we proposed to revise 40 CFR 63.8000(b)(2) so that opening of a safety device to avoid unsafe conditions is considered a deviation, unless it is a bypass of a control for a process vessel and accounted for as specified in 40 CFR 63.8005(h). We also proposed to revise 40 CFR 63.8080(c), which is the provision to keep a record of each time a safety device is opened, to add additional recordkeeping provisions consistent with those for other deviations. As a result of these proposed changes, the opening of a safety device would be considered a deviation from the emission limits for sources using closed vent systems and add-on control devices to comply with the emission limitations in 40 CFR part 63, subpart HHHHH, unless it is a bypass of a control for a process vessel and accounted for as specified in 40 CFR 63.8005(h). In the event a safety device is opened, the owners or operators would be required to comply with the general duty provision in 40 CFR 63.8000(a) to minimize emissions at all times and to report and record information related to deviations as specified in 40 CFR 63.8075 and 63.8080, respectively, unless it is a bypass of a control for a process vessel
We are finalizing the SSM provisions as proposed with no changes (84 FR 46629, September 4, 2019).
We are also revising the bypass provisions to allow the use of bypass valve or damper position indicators to determine the time and duration of possible bypasses as an alternative to the proposed requirement to use a flow indicator. In the final rule, we are providing the following options to comply with the bypass monitoring requirements: (1) Use a flow indicator that provides a continuous reading of flow and no flow, (2) use valve position indicator or bypass damper indicator that provides a continuous reading of damper position, or (3) secure the bypass line valve in the non-diverting position with a car-seal or a lock-and-key type configuration. For flow indicators, facilities will have to perform a flow meter verification check annually. The annual verification check must be performed for at least two points, one at the instrument's zero and the other at the instrument's span. For valve position indicators, facilities must ensure that any bypass line valve or damper is in the closed position through continuous monitoring of valve position when the control device is in operation. The monitoring system must be inspected semiannually to verify that the monitor will accurately indicate valve position. For car-seal or lock-and-key type configurations, facilities must ensure that any seal or closure mechanism is maintained in the non-diverting position and the vent stream is not diverted through a bypass line. The visual inspections on the seal or closure mechanism must be completed at least once every month.
We are finalizing the provisions related to safety device openings in 40 CFR 63.8000(b)(2) and 63.8080(c) as proposed with no changes (84 FR 46632, September 4, 2019).
We have corrected an error in the proposed amendatory language at 40 CFR 63.7995(e) (84 FR 46640). In the proposal, we indicated that sources that began construction or reconstruction on or before the publication of the final rule in the
The commenter requested that the definition of “process vessel vent” be revised to exclude “maintenance vents after the equipment has been washed or purged in accordance with site maintenance practices to minimize, to the extent possible, emissions of HAP.” The commenter also suggested as a second option, if the EPA decides to regulate HAP emissions from maintenance activities associated with process vessel vents, that the EPA should add work practice standards in place of emission limitations, consistent with the language in the Petroleum Refinery MACT, 40 CFR 63.643(c), and the proposed changes to the Ethylene Production MACT, 40 CFR 63.1103(e)(5).
The commenter requested that, consistent with the Column 3 note on 40 CFR 63.6(h)(2) through (9) in Table 10 to 40 CFR part 63, subpart HHHHH, the EPA should clarify the “Yes” language on 40 CFR 63.6(h)(1) by adding the italicized language as follows: “Yes, before the compliance date specified in § 63.7995(e),
We evaluated all comments on the EPA's proposed amendments to the SSM provisions. For the reasons explained in the proposed rule, we determined that these amendments to the SSM provisions for the MCM NESHAP remove and revise provisions related to SSM that are not consistent with the requirement that the standards apply at all times. More information concerning the amendments we are finalizing for SSM provisions is in the preamble to the proposed rule (84 FR 46629, September 4, 2019). Therefore, we are finalizing our approach for the SSM provisions as proposed.
In the September 4, 2019, document, we proposed to require owners or operators of MCM sources to submit electronic copies of notifications, reports, and performance tests through the EPA's CDX, using the CEDRI. These include the initial notifications required in 40 CFR 63.9(b) and 63.8070(b), the NOCS required in 40 CFR 63.9(h) and 63.8075(d), the performance test report required in 40 CFR 63.8075(f), the performance evaluation report required in 40 CFR 63.8075(g), and the semiannual reports required in 40 CFR 63.8075(b) and (c). A description of the electronic submission process is provided in the memorandum,
We are finalizing the electronic reporting provisions as proposed with no changes (84 FR 46632, September 4, 2019).
We are revising the proposed electronic reporting template to incorporate changes identified in the
For the reasons explained in the preamble to the proposed rules (84 FR 46632, September 4, 2019), and in the comment responses above in section IV.D.3 of this preamble, and in the response to comment document, we are finalizing the electronic reporting provisions for the MCM NESHAP, as proposed. We are revising the CEDRI reporting template as appropriate to incorporate the corrections and additions identified in the public comments.
The EPA proposed to amend 40 CFR 63.8055(b)(4) to remove reference to paragraph (d)(4) of the OSHA's Hazard Communication standard, which dealt with OSHA-defined carcinogens. We proposed to replace these references to carcinogens in 29 CFR 1910.1200(d)(4) with a list (in proposed new Table 11 to 40 CFR part 63, subpart HHHHH) of those organic HAP that must be included in calculating total organic HAP content of a coating material if they are present at 0.1 percent or greater by mass. We also proposed additional technical and editorial corrections that were listed in Table 4 of the proposal preamble.
We are finalizing the technical amendments as proposed with no changes (84 FR 46633, September 4, 2019).
We received comments supporting the addition of Table 11 to 40 CFR part 63, subpart HHHHH. We also received comments indicating several additional technical and editorial corrections that are detailed in the
For the reasons explained in the preamble to the proposed rules (84 FR 46633, September 4, 2019), in the comment responses above in section IV.E.3 of this preamble, and in the response to comment document, we are finalizing the other technical amendments for the MCM NESHAP, as proposed. The proposed technical amendments, to include the new Table 11, are being finalized in this action. The editorial corrections proposed in Table 4 of the proposal preamble are being finalized, with edits based on responses from commenters. These edits are shown in Table 2 of this preamble.
We proposed to require owners or operators of facilities complying with the standards using a closed vent system and add-on controls to control emissions to perform periodic testing to confirm the performance of the add-on control device. We proposed to require owners or operators that are not already on a 5-year testing schedule to conduct the first of the periodic performance tests within 3 years of the effective date of the revised standards. Afterward, the owners or operators would conduct periodic testing before they renew their operating permits, but no longer than 5 years following the previous performance test. Additionally, owners or operators of facilities that have already tested as a condition of their permit within the last 2 years before the effective date would be permitted to maintain their current 5-year schedule and not be required to move up the date of the next test to the 3-year date specified above.
We are finalizing the periodic performance testing and ongoing compliance demonstration provisions as proposed with no changes (84 FR 46634, September 4, 2019).
The comments and responses on the proposed performance testing requirements are detailed in the
For the reasons explained in the preamble to the proposed rules (84 FR 46634, September 4, 2019) and in the comment responses above in section IV.F.3 of this preamble and the response to comment document, we are finalizing the periodic testing provisions for the MCM NESHAP, as proposed.
Currently, 43 major sources subject to the MCM NESHAP are operating in the United States. The affected source under the NESHAP is the facility-wide collection of equipment used to manufacture coatings and includes all process vessels; storage tanks for feedstocks and products; components such as pumps, compressors, agitators, pressure relief devices, sampling connection systems, open-ended valves or lines, valves, connectors, and instrumentation systems; wastewater tanks; transfer racks; and cleaning operations. A coating is defined as material such as paint, ink, or adhesive that is intended to be applied to a substrate and consists of a mixture of resins, pigments, solvents, and/or other additives, where the material is produced by a manufacturing operation where materials are blended, mixed, diluted, or otherwise formulated.
At the current level of control, estimated emissions of volatile organic HAP from the MCM source category are approximately 405 tpy.
The final amendments require that all 43 major sources in the MCM source category comply with the relevant emission standards at all times, including periods of SSM. We were unable to quantify the emissions that occur during periods of SSM or the specific emissions reductions that will occur as a result of this action. However, eliminating the SSM exemption has the potential to reduce emissions by requiring facilities to meet the applicable standard during SSM periods.
Indirect or secondary air emissions impacts are impacts that will result from the increased electricity usage associated with the operation of control devices (
We estimate that to comply with the final amendments, each facility in the MCM source category will experience increased reporting and recordkeeping costs. The recordkeeping and reporting costs are presented in section VI.C of this preamble. The costs include time to read and understand the rule amendments. Costs associated with elimination of the SSM exemptions were estimated as part of the reporting and recordkeeping costs and include time for re-evaluating previously developed SSM record systems. Costs associated with the provision to electronically submit notifications and semi-annual compliance reports using CEDRI were estimated as part of the reporting and recordkeeping costs and include time for becoming familiar with CEDRI and the reporting template for semi-annual compliance reports.
We are also finalizing a provision for performance testing no less frequently than every 5 years for sources in the MCM source category using add-on controls to demonstrate compliance. We estimate that 12 of the facilities subject to the MCM NESHAP and using add-on control devices will incur costs to conduct control device performance testing because they are not required by their permits to conduct testing every 5 years. This total does not include facilities in the MCM source category that have add-on controls and are currently required to perform periodic performance testing as a condition of their state operating permit. The cost for a facility to conduct a destruction or removal efficiency performance test using EPA Method 25 or 25A is estimated to be about $19,000. The total cost for all 12 facilities to test their add-on control devices in a single year, plus one facility completing a retest to account for 5 percent of control devices failing to pass the first test, will be $247,000. The total annualized testing cost, including retests, is approximately $57,000 per year at an interest rate of 5.25 percent and an additional $6,000 in reporting costs per facility in the year in which the test occurs for the MCM source category. For further information on the potential costs, see the cost tables in the memoranda,
The economic impact analysis is designed to inform decision-makers about the potential economic consequences of a regulatory action. For the final rule, the EPA estimated the cost of becoming familiar with the rule and re-evaluating previously developed SSM record systems and performing periodic emissions testing at certain facilities with add-on controls that are not already required to perform testing. To assess the maximum potential impact, the largest cost expected to be experienced in any 1 year is compared to the total sales for the ultimate owner of the affected facilities to estimate the total burden for each facility.
For the final revisions to the MCM NESHAP, the 2019 equivalent annualized value (in 2018$) of the costs over the period 2020-2026 is $66,000, assuming a 3-percent discount rate and $73,000 assuming a 7-percent discount rate. The 43 affected facilities are owned by 27 different parent companies, and the total costs associated with the final amendments range from 0.000005 to 0.025 percent of annual sales revenue per ultimate owner. These costs are not expected to result in a significant market impact, regardless of whether they are passed on to the purchaser or absorbed by the firms.
The EPA also prepared a small business screening assessment to determine whether any of the identified affected entities are small entities, as defined by the U.S. Small Business Administration. Two of the facilities potentially affected by the final revisions to the MCM NESHAP are small entities. However, the costs associated with the final amendments for these two affected small entities range from 0.002 to 0.025 percent of annual sales revenues per ultimate owner. Therefore, there are no significant economic impacts on a substantial number of small entities from these final amendments.
More information and details of this analysis are provided in the technical document titled
As stated above in section V.B of this preamble, we were unable to quantify the specific emissions reductions associated with eliminating the SSM exemption.
Because these final amendments are not considered economically significant, as defined by Executive Order 12866, we did not monetize the benefits of reducing these emissions. This does not mean that there are no benefits associated with the potential reduction in volatile organic HAP from this rule.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
To examine the potential for any environmental justice issues that might be associated with the source category, during the proposal, we performed a demographic analysis, which is an assessment of risk to individual demographic groups of the populations living within 5 kilometers (km) and within 50 km of the facilities. In the analysis, we evaluated the distribution of HAP-related cancer and noncancer risk from the MCM source category across different demographic groups within the populations living near facilities.
The results of the demographic analysis are summarized in Table 4 of this preamble. These results, for various demographic groups, are based on the estimated risk from actual emissions levels for the population living within 50 km of the facilities. These results have not changed since the proposal.
The results of the MCM source category demographic analysis indicate that emissions from the source category expose approximately 3,700 people to a cancer risk at or above 1-in-1 million and zero people to a chronic noncancer TOSHI greater than 1. The percentages of the at-risk population in each demographic group (except for African American, Below Poverty Level, Hispanic or Latino, and Above Poverty Level) are similar to (within 5 percent of) their respective nationwide percentages. The African American and Below Poverty Level demographic groups are greater than their respective nationwide percentages, while the Hispanic or Latino (includes White and nonwhite) and Above Poverty Level are lower than their respective nationwide percentages.
The methodology and the results of the demographic analysis are presented in a technical report,
The EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are summarized in section IV.A of this preamble and are further documented in
Additional information about these statutes and Executive orders can be found at
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.
The information collection activities in this final rule will be submitted for approval to OMB under the PRA. The information collection request (ICR) document that the EPA prepared has been assigned EPA ICR number 2115.07. You can find a copy of the ICR in the MCM Docket (Docket ID No. EPA-HQ-OAR-2018-0747), and it is briefly summarized here.
The EPA is finalizing revisions to the SSM provisions of the rule, requiring periodic testing of control devices, and requiring the use of electronic data reporting for future performance test data submittals, notifications, and reports. This information is being collected to assure compliance with 40 CFR part 63, subpart HHHHH.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The Agency has determined that two of the facilities potentially affected by the final revisions to the MCM NESHAP are small entities and may experience an impact of 0.002 to 0.025 percent of annual sales revenues per ultimate owner. Details of this analysis are presented in section V.D of this preamble and additional detail is provided in the economic impact memoranda associated with this action. We have, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities.
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. While this action creates an enforceable duty on the private sector, the cost does not exceed $100 million or more.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. No tribal facilities are known to be engaged in any of the industries that will be affected by this action (MCM). Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in sections III.A, III.C, and IV.A of this preamble and are further documented in the
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This action involves technical standards. Therefore, the EPA conducted searches for the MCM NESHAP through the Enhanced National Standards Systems Network Database managed by the American National Standards Institute (ANSI). We also contacted voluntary consensus standards (VCS) organizations and accessed and searched their databases. We conducted searches for EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, 18, 21, 22, 24, 25, 25A, 25D, 26, 26A, and 29 of 40 CFR part 60, appendix A; 301, 305, 311, 316, and 320 of 40 CFR part 63, appendix A; 624, 625, 1624, 1625, 1666, and 1671 of 40 CFR part 136, appendix A; and 8260, 8260B (SW-846), 8270, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, EPA Publication SW-846 third edition. During the EPA's
No applicable VCS were identified for EPA Methods 1A, 2A, 2D, 2F, 2G, 21, 22, 25D, 305, 316, 625, 1624, 1625, 1666, 1671, 8260, 8260B (SW-846), and 8270. The following VCS were identified as acceptable alternatives to the EPA test methods for the purpose of this rule.
The EPA is including in the final rule the VCS ANSI/ASME PTC 19-10-1981 Part 10 (2010), “Flue and Exhaust Gas Analyses,” as an acceptable alternative to EPA Method 3B for the manual procedures only and not the instrumental procedures. This method is used to quantify the oxygen and carbon dioxide concentration in exhaust from stationary combustion sources, and is available at the American National Standards Institute, 1899 L Street NW, 11th Floor, Washington, DC 20036 and the American Society of Mechanical Engineers (ASME), Three Park Avenue, New York, NY 10016-5990. See
Additionally, the EPA is including in the final rule the VCS ASTM D6420-18, “Standard Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography-Mass Spectrometry,” as an acceptable alternative to EPA Method 18 with the following caveats. This ASTM procedure employs a direct interface gas chromatograph/mass spectrometer (GCMS) to identify and quantify the 36 volatile organic compounds (or sub-set of these compounds) listed in the method, and has been approved by the EPA as an alternative to EPA Method 18 only when the target compounds are all known and the target compounds are all listed in ASTM D6420 as measurable. ASTM D6420-18 should not be used for methane and ethane because the atomic mass is less than 35; and ASTM D6420 should never be specified as a total VOC method.
The EPA is including in the final rule the VCS ASTM D2369-10(2015) el, “ ‘Test Method for Volatile Content of Coatings;” ASTM D2697-03 (2014), “Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings;” and ASTM D3960-98, “Standard Practice for Determining VOC Content of Paints and Related Coatings,” as acceptable alternatives to EPA Method 24 for determining the weight-percent HAP content of coatings, by determining the volatile matter or VOC content of coatings and use that value as a substitute for the mass fraction of HAP, for demonstrating compliance with the weight-percent HAP limit alternative in 40 CFR 63.8055. ASTM D2369-10(2015) el is used for calculating the weight percent volatile organic content in coatings and the weight percent solids content. ASTM D2697-03 (2014) measures the volume of dry coating solids in a given volume of liquid coating. ASTM D3960-98 is used for determining the VOC content of paints and related coatings and for calculating the VOC content expressed as the mass of VOC: (1) Per unit volume of coating less water and exempt volatile compounds, and (2) per unit volume of coating solids and (3) per unit mass of coating solids.
In addition, the EPA is including in the final rule-the VCS ASTM D6348-12e1, “Determination of Gaseous Compounds by Extractive Direct Interface Fourier Transform (FTIR) Spectroscopy,” as an acceptable alternative to EPA Method 320 of appendix A to 40 CFR part 63 with caveats requiring inclusion of selected annexes to the standard as mandatory. ASTM D6348-12e1 identifies and measures the concentration of organic compounds in an exhaust stream. The test plan preparation and implementation in the Annexes to ASTM D6348-12e1, Sections Al through A8 are mandatory; and in ASTM D6348-12e1, Annex A5 (Analyte Spiking Technique), the percent (%) R must be determined for each target analyte (Equation A5.5). In order for the test data to be acceptable for a compound, %R must be 70% ≥ R ≤ 130%. If the %R value does not meet this criterion for a target compound, the test data is not acceptable for that compound and the test must be repeated for that analyte (
The five ASTM methods (ASTM D2369-10(2015) el, ASTM D2697-03, ASTM D3960-98, ASTM D6348-12e1, and ASTM D6420-18) are available at ASTM International, 1850 M Street NW, Suite 1030, Washington, DC 20036. See
The EPA is including in the final rule the VCS CARB Method 310, “Determination of Volatile Organic Compounds (VOC) in Consumer Products and Reactive Organic Compounds (ROC) in Aerosol Coating Products,” as an acceptable alternative to EPA Method 311 for determining the weight-percent HAP content of coatings, by determining the mass fraction of volatile matter and use that value as a substitute for the mass fraction of HAP, for demonstrating compliance with the weight-percent HAP limit alternative in 40 CFR 63.8055. This method is used to determine the weight percent of VOC in consumer products and ROC in aerosol coating products and is available from the California Air Resources Board (CARB), 1001 I Street, Sacramento, CA 95814. See
Additional information for the VCS search and determinations can be found in the memorandum,
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not significantly affect the level of protection provided to human health or the environment. The documentation for this decision is contained in section V.F of this preamble and the technical report,
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Air pollution control, Hazardous substances, Incorporation by reference, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the EPA amends 40 CFR part 63 as follows:
42 U.S.C. 7401
The revisions and addition read as follows:
(e) * * *
(1) ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus], issued August 31, 1981, IBR approved for §§ 63.309(k), 63.457(k), 63.772(e) and (h), 63.865(b), 63.997(e), 63.1282(d) and (g), and 63.1625(b), table 5 to subpart EEEE, §§ 63.3166(a), 63.3360(e), 63.3545(a), 63.3555(a), 63.4166(a), 63.4362(a), 63.4766(a), 63.4965(a), and 63.5160(d), table 4 to subpart UUUU, table 3 to subpart YYYY, §§ 63.7822(b), 63.7824(e), 63.7825(b), 63.8000(d), 63.9307(c), 63.9323(a), 63.9621(b) and (c), 63.11148(e), 63.11155(e), 63.11162(f), 63.11163(g), 63.11410(j), 63.11551(a), 63.11646(a), and 63.11945, and table 4 to subpart AAAAA, table 5 to subpart DDDDD, table 4 to subpart JJJJJ, table 4 to subpart KKKKK, tables 4 and 5 of subpart UUUUU, table 1 to subpart ZZZZZ, and table 4 to subpart JJJJJJ.
(h) * * *
(26) ASTM D2369-10 (Reapproved 2015)e1, Standard Test Method for Volatile Content of Coatings, approved June 1, 2015, IBR approved for §§ 63.3151(a), 63.3360(c), 63.3961(j), 63.4141(a) and (b), 63.4161(h), 63.4321(e), 63.4341(e), 63.4351(d), 63.4541(a), and 63.4561(j), appendix A to subpart PPPP, and §§ 63.4741(a), 63.4941(a) and (b), 63.4961(j), and 63.8055(b).
(30) ASTM D2697-03 (Reapproved 2014), Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings, approved July 1, 2014, IBR approved for §§ 63.3161(f), 63.3360(c), 63.3941(b), 63.4141(b), 63.4741(a) and (b), 63.4941(b), and 63.8055(b).
(50) ASTM D3960-98, Standard Practice for Determining Volatile Organic Compound (VOC) Content of Paints and Related Coatings, approved November 10, 1998, IBR approved for §§ 63.3360(c) and 63.8055(b).
(86) ASTM D6348-12e1, Standard Test Method for Determination of Gaseous Compounds by Extractive Direct Interface Fourier Transform Infrared (FTIR) Spectroscopy, Approved February 1, 2012, IBR approved for §§ 63.997(e), 63.1571(a), and 63.2354(b), table 5 to subpart EEEE, table 4 to subpart UUUU, and §§ 63.7142(a) and (b) and 63.8000(d).
(94) ASTM D6420-18, Standard Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography-Mass Spectrometry, approved November 1, 2018, IBR approved for §§ 63.987(b), 63.997(e), and 63.2354(b), table 5 to subpart EEEE, and §§ 63.2450(j) and 63.8000(d).
(k) * * *
(1) Method 310, “Determination of Volatile Organic Compounds (VOC) in Consumer Products and Reactive Organic Compounds (ROC) in Aerosol Coating Products,” amended May 25, 2018, IBR approved for § 63.8055(b).
(a) * * *
(1) Are located at or are part of a major source of hazardous air pollutants (HAP) emissions, as defined in section 112(a) of the Clean Air Act (CAA);
(2) Manufacture coatings as defined in § 63.8105;
(3) Process, use, or produce HAP; and
(b) Miscellaneous coating manufacturing operations include the facility-wide collection of equipment described in paragraphs (b)(1) through (4) of this section that is used to manufacture coatings as defined in § 63.8105. Miscellaneous coating manufacturing operations also include cleaning operations.
(1) Process vessels;
(2) Storage tanks for feedstocks and products;
(3) Components such as pumps, compressors, agitators, pressure relief devices, sampling connection systems, open-ended valves or lines, valves, connectors, and instrumentation systems; and
(d) * * *
(1) Research and development facilities, as defined in section 112(c)(7) of the CAA;
(2) The affiliated operations located at an affected source under subparts GG (National Emission Standards for Aerospace Manufacturing and Rework Facilities), KK (National Emission Standards for the Printing and Publishing Industry), JJJJ (NESHAP: Paper and Other Web Coating), MMMM (National Emission Standards for Miscellaneous Metal Parts and Products Surface Coating Operations) and SSSS (NESHAP: Surface Coating of Metal Coil) of this part. Affiliated operations include, but are not limited to, mixing or dissolving of coating ingredients; coating mixing for viscosity adjustment, color tint or additive blending, or pH adjustment; cleaning of coating lines and coating line parts; handling and storage of coatings and solvent; and conveyance and treatment of wastewater;
(3) Ancillary equipment such as boilers and incinerators (only those not used to comply with the emission limits in Tables 1 through 5 to this subpart), chillers and refrigeration systems, and other equipment that is not directly involved in the manufacturing of a coating (
(4) Quality assurance/quality control laboratories; or
(a) This subpart applies to each miscellaneous coating manufacturing affected source as defined in paragraph (b) of this section.
(a) Except as specified in paragraph (e) of this section, if you have a new affected source, you must comply with this subpart according to the requirements in paragraphs (a)(1) and (2) of this section.
(b) Except as specified in paragraph (e) of this section, if you have an existing affected source on December 11, 2003, then you must comply with the requirements for existing sources in this subpart no later than December 11, 2006.
(e) All affected sources that commenced construction or reconstruction on or after September 4, 2019, must be in compliance with the requirements listed in paragraphs (e)(1) through (5) of this section upon initial startup or no later than August 14, 2020, whichever is later. All affected sources that commenced construction or reconstruction before September 4, 2019, must be in compliance with the requirements listed in paragraphs (e)(1) through (5) of this section no later than August 14, 2023.
(1) The general requirements specified in §§ 63.8000(a)(2), (b)(2), (d)(8), and (f) and 63.8005(d)(5) and (h).
(2) The reporting requirements specified in § 63.8075(e)(5), (e)(6)(ii)(B) and (D), and (e)(6)(iii)(C) and (E).
(3) The recordkeeping requirements specified in § 63.8080(c), (e), (f), (h), and (i).
(4) The definitions specified in § 63.8105.
(5) The general provisions as specified in Table 10 to this subpart.
The revisions and additions read as follows:
(a)
(1) Except as specified in paragraph (a)(2) of this section, you must be in compliance with the emission limits and work practice standards in Tables 1 through 5 to this subpart at all times, except during periods of startup, shutdown, and malfunction. You must meet the requirements specified in paragraphs (b) and (c) of this section. You must meet the requirements specified in §§ 63.8005 through 63.8030 (or the alternative means of compliance in § 63.8050), except as specified in paragraph (d) of this section. You must meet the notification, reporting, and recordkeeping requirements specified in §§ 63.8070, 63.8075, and 63.8080.
(2) Beginning on the compliance dates specified in § 63.7995(e), paragraph (a)(1) of this section no longer applies. Instead, beginning no later than the compliance dates specified in § 63.7995(e), you must be in compliance with the emission limits and work practice standards in Tables 1 through 5 to this subpart at all times. You must meet the requirements specified in paragraphs (b) and (c) of this section. You must meet the requirements specified in §§ 63.8005 through 63.8030 (or the alternative means of compliance in § 63.8050), except as specified in paragraph (d) of this section. You must meet the notification, reporting, and recordkeeping requirements specified in §§ 63.8070, 63.8075, and 63.8080.
(b) * * *
(2) You must comply with paragraphs (b)(2)(i) and (ii) of this section.
(i) Except as specified in paragraph (b)(2)(ii) of this section, opening of a safety device, as defined in § 63.8105, is allowed at any time conditions require it to avoid unsafe conditions.
(ii) Beginning on the compliance dates specified in § 63.7995(e), paragraph (b)(2)(i) of this section no longer applies. Instead, opening of a safety device, as defined in § 63.8105, is considered a deviation, as defined in § 63.8105, unless it is a bypass of a control for a process vessel and accounted for as specified in § 63.8005(h).
(c) * * *
(3) If you use a halogen reduction device to reduce hydrogen halide and halogen HAP emissions that are generated by combusting halogenated vent streams, you must meet the requirements of § 63.994, except as specified in paragraph (f) of this section, and the requirements referenced therein. If you use a halogen reduction device before a combustion device, you must determine the halogen atom emission rate prior to the combustion device according to the procedures in § 63.115(d)(2)(v).
(d) * * *
(1)
(i) Conduct gas molecular weight analysis using Method 3, 3A, or 3B in appendix A to 40 CFR part 60. As an alternative to EPA Method 3B for the manual procedures only and not the instrumental procedures, you may use ANSI/ASME PTC 19-10-1981 Part 10 (incorporated by reference,
(iii) As an alternative to using Method 18, Method 25/25A, or Method 26/26A of 40 CFR part 60, appendix A, to comply with any of the emission limits specified in Tables 1 through 6 to this subpart you may use the alternatives specified in paragraph (d)(1)(iii)(A) or (B) of this section.
(A) As an alternative to using Method 18, Method 25/25A, or Method 26/26A of 40 CFR part 60, appendix A, you may use Method 320 of appendix A to this part. When using Method 320, you must follow the analyte spiking procedures of section 13 of Method 320, unless you demonstrate that the complete spiking procedure has been conducted at a similar source. As an alternative to Method 320 of appendix A to this part, you may use ASTM Method D6348-12e1 (incorporated by reference,
(B) As an alternative to using EPA Method 18, you may also use ASTM D6420-18 (incorporated by reference,
(vi) You must conduct periodic performance tests and establish the operating limits required by §§ 63.8005(e), 63.8010(b)(1), and 63.8050(d)(3) within 5 years following the previous performance test. You must conduct the initial or first periodic performance test before August 14, 2023, unless you are already required to complete periodic performance tests as a requirement of renewing your facility's operating permit under 40 CFR part 70 or 71, and have conducted a performance test on or after August 15, 2022. Thereafter you must conduct a performance test no later than 5 years following the previous performance test. Operating limits must be confirmed or reestablished during each performance test.
(2) [Reserved]
(3)
(4) * * *
(i) * * *
(A) If you wish to use a CEMS other than a Fourier Transform Infrared Spectroscopy (FTIR) meeting the requirements of Performance Specification 15 in appendix B to 40 CFR part 60 or a hydrogen chloride (HCl) CEMS meeting the requirements of Performance Specification 18 in appendix B to 40 CFR part 60 and Quality Assurance Procedure 6 in appendix F to 40 CFR part 60 to measure hydrogen halide and halogen HAP before we promulgate a Performance Specification for such CEMS, you must prepare a monitoring plan and submit it for approval in accordance with the procedures specified in § 63.8.
(ii) * * *
(C) For CEMS meeting Performance Specification 8 used to monitor performance of a noncombustion device, determine the predominant organic HAP using either process knowledge or the screening procedures of Method 18 in appendix A-6 to 40 CFR part 60 on the control device inlet stream, calibrate the monitor on the predominant organic HAP, and report the results as C
(iv) The CEMS data must be reduced to operating day or operating block averages computed using valid data, except monitoring data also are sufficient to constitute a valid hour of data if measured values are available for at least two of the 15-minute periods during an hour when calibration, quality assurance, or maintenance activities are being performed. An operating block is a period of time from the beginning to end of batch operations in the manufacturing of a coating. Operating block averages may be used only for process vessel data.
(8)
(e)
(f)
(1) Section 63.983(a)(5).
(2) The phrase “except during periods of start-up, shutdown and malfunction as specified in the referencing subpart” in § 63.984(a).
(3) The phrase “except during periods of start-up, shutdown and malfunction as specified in the referencing subpart” in § 63.985(a).
(4) The phrase “other than start-ups, shutdowns, or malfunctions” in § 63.994(c)(1)(ii)(D).
(5) Section 63.996(c)(2)(ii).
(6) Section 63.997(e)(1)(i).
(7) The term “breakdowns” from § 63.998(b)(2)(i).
(8) Section 63.998(b)(2)(iii).
(9) The phrase “other than periods of startups, shutdowns, and malfunctions” from § 63.998(b)(5)(i)(A).
(10) The phrase “other than periods of startups, shutdowns, and malfunctions” from § 63.998(b)(5)(i)(C).
(11) The phrase “, except as provided in paragraphs (b)(6)(i)(A) and (B) of this section” from § 63.998(b)(6)(i).
(12) The second sentence of § 63.998(b)(6)(ii).
(13) Section 63.998(c)(1)(ii)(D), (E), (F), and (G).
(14) Section 63.998(d)(1)(ii).
(15) Section 63.998(d)(3)(i) and (ii).
(16) The phrase “may be included as part of the startup, shutdown, and malfunction plan, as required by the referencing subpart for the source, or” from § 63.1005(e)(4)(i).
(17) The phrase “(except periods of startup, shutdown, or malfunction)” from § 63.1007(e)(1)(ii)(A).
(18) The phrase “(except during periods of startup, shutdown, or malfunction)” from § 63.1009(e)(1)(i)(A).
(19) The phrase “(except during periods of startup, shutdown, or malfunction)” from § 63.1012(b)(1).
(20) The phrase “(except periods of startup, shutdown, or malfunction)” from § 63.1026(e)(1)(ii)(A).
(21) The phrase “(except periods of startup, shutdown, or malfunction)” from § 63.1028(e)(1)(i)(A).
(22) The phrase “(except periods of startup, shutdown, or malfunction)” from § 63.1031(b)(1).
The revisions and additions read as follows:
(a) * * *
(2) For each control device used to comply with Table 1 to this subpart, you must comply with subpart SS of this part as specified in § 63.8000(c), except as specified in § 63.8000(d) and (f) and paragraphs (b) through (g) of this section.
(d) * * *
(1) To demonstrate initial compliance with a percent reduction emission limit in Table 1 to this subpart, you must conduct the performance test or design evaluation under conditions as specified in § 63.7(e)(1), except as specified in paragraph (d)(5) of this section, and except that the performance test or design evaluation must be conducted under worst-case conditions. Also, the performance test for a control device used to control emissions from process vessels must be conducted according to § 63.1257(b)(8), including the submittal of a site-specific test plan for approval prior to testing. The requirements in § 63.997(e)(1)(i) and (iii) also do not apply for performance tests conducted to determine compliance with the emission limits for process vessels.
(5) Beginning on the compliance dates specified in § 63.7995(e), § 63.7(e)(1) no longer applies and performance tests shall be conducted under such conditions as the Administrator specifies to the owner or operator based on representative performance of the affected source for the period being tested. Representative conditions exclude periods of startup and shutdown unless specified by the Administrator or an applicable subpart. The owner or operator may not conduct performance tests during periods of malfunction. The owner or operator must record the process information that is necessary to document operating conditions during the test and include in such record an explanation to support that such conditions represent normal operation. Upon request, the owner or operator shall make available to the Administrator such records as may be necessary to determine the conditions of performance tests.
(e)
(2) If you elect to establish separate operating limits for different emission episodes, you must maintain records as specified in § 63.8080(g) of each point at which you change from one operating limit to another, even if the duration of the monitoring for an operating limit is less than 15 minutes.
(g)
(1) You must use a valve position or bypass damper position indicator that provides a continuous reading and record of the bypass valve or damper position when the control device is in operation. You must inspect the monitoring system semiannually to verify that the monitor will indicate valve position.
(2) You must secure the bypass line valve or bypass damper in the non-diverting position with a car-seal or a lock-and-key type configuration. You must visually inspect the seal or closure mechanism at least once every month to ensure that the valve is maintained in the non-diverting position and that the vent stream is not diverted through the bypass line. You must also record the occurrence of all periods when the seal or closure mechanism is broken, or the key for a lock-and-key type lock has been checked out.
(h)
8. Section 63.8010 is amended by revising paragraph (a) to read as follows:
(a)
(a) You must comply with each emission limit and work practice standard in Table 5 to this subpart that applies to your transfer operations, and you must meet all applicable requirements specified in § 63.8000(b). For each control device used to comply with Table 5 to this subpart, you must comply with subpart SS of this part as specified in § 63.8000(c), except as specified in § 63.8000(d) and (f) and paragraph (b) of this section.
(c) * * *
(3) * * *
(i) If emissions are routed through a closed-vent system to a condenser control device, determine controlled emissions using the procedures specified in § 63.1257(d)(3).
(ii) If emissions are routed through a closed-vent system to any control device other than a condenser, determine actual emissions after determining the efficiency of the control device using the procedures in subpart SS of this part as specified in § 63.8000(c).
(iii) If the vessel is vented to the atmosphere, then actual emissions are equal to the uncontrolled emissions estimated in accordance with paragraph (c)(1) of this section.
(b) * * *
(1) Method 311 (appendix A to this part). As an alternative to Method 311, you may use California Air Resources Board Method 310, Determination of Volatile Organic Compounds (VOC) in Consumer Products and Reactive Organic Compounds (ROC) in Aerosol Coating Products (incorporated by reference,
(2) Method 24 (appendix A to 40 CFR part 60). You may use Method 24 to determine the mass fraction of volatile matter and use that value as a substitute for the mass fraction of HAP, or one of the alternatives in paragraphs (b)(2)(i) through (iii) of this section.
(i) ASTM D2369-10 (Reapproved 2015)e1, (incorporated by reference,
(ii) ASTM D2697-03 (Reapproved 2014) (incorporated by reference,
(iii) ASTM D3960-98 (incorporated by reference,
(4) You may rely on formulation data from raw material suppliers if it represents each organic HAP that is present at 0.1 percent by mass or more for the HAP listed in Table 11 to this subpart, and at 1.0 percent by mass or more for other compounds. If the HAP weight percent estimated based on formulation data conflicts with the results of a test conducted according to paragraphs (b)(1) through (3) of this section, then there is a rebuttal presumption that the test results are accurate unless, after consultation, you demonstrate to the satisfaction of the permitting authority that the test results are not accurate and that the formulation data are more appropriate.
(c)
The revisions and additions read as follows:
(c) * * *
(1) Requests for approval to set operating limits for parameters other than those specified in §§ 63.8005 through 63.8030, including parameters for enhanced biological treatment units. Alternatively, you may make these requests according to § 63.8(f).
(d)
(1) You must submit the notification of compliance status report no later than 150 days after the applicable compliance date specified in § 63.7995. You must submit a separate notification of compliance status report after the applicable compliance date specified in § 63.7995(e).
(2) * * *
(ii) The results of performance tests, engineering analyses, design evaluations, flare compliance assessments, inspections and repairs, and calculations used to demonstrate compliance according to §§ 63.8005 through 63.8030 and 63.8055. For performance tests, results must include descriptions of sampling and analysis procedures and quality assurance procedures.
(e) * * *
(5) For each SSM during which excess emissions occur, the compliance report must include the information specified in paragraphs (e)(5)(i) and (ii) of this section. On and after the compliance date specified in § 63.7995(e), this paragraph (e)(5) no longer applies.
(6) * * *
(ii) For each deviation from an emission limit, operating limit, and work practice standard that occurs at an affected source where you are not using
(B) Before the compliance date specified in § 63.7995(e), information on the number, duration, and cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken. On and after the compliance date specified in § 63.7995(e), report the number of failures to meet an applicable standard. For each instance, report the date, time, and duration of each failure. For each failure the report must include a list of the affected sources or equipment, an estimate of the quantity of each regulated pollutant emitted over any emission limit, a description of the method used to estimate the emissions, and the cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken.
(D) On and after the compliance date specified in § 63.7995(e), report the total bypass hours, as monitored according to the provisions of § 63.8080(h).
(iii) For each deviation from an emission limit or operating limit occurring at an affected source where you are using a CMS to comply with the emission limit in this subpart, you must include the information in paragraphs (e)(6)(iii)(A) through (L) of this section. This includes periods of SSM.
(C) Before the compliance date specified in § 63.7995(e), the date and time that each deviation started and stopped, and whether each deviation occurred during a period of SSM or during another period. On and after the compliance date specified in § 63.7995(e), report the number of failures to meet an applicable standard. For each instance, report the date, time, and duration of each failure. For each failure the report must include a list of the affected sources or equipment, an estimate of the quantity of each regulated pollutant emitted over any emission limit, a description of the method used to estimate the emissions, and the cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken.
(E) Before the compliance date specified in § 63.7995(e), a breakdown of the total duration of the deviations during the reporting period into those that are due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes. On and after the compliance date specified in § 63.7995(e), a breakdown of the total duration of the deviations during the reporting period into those that are due to control equipment problems, process problems, other known causes, and other unknown causes.
(L) A summary of the total duration of CMS data unavailability during the reporting period, and the total duration as a percent of the total source operating time during that reporting period.
(f)
(1)
(2)
(3)
(g)
(1)
(2)
(3)
(h)
(i)
(1)
(2)
(3)
(j)
(1) You must have been or will be precluded from accessing CEDRI and submitting a required report within the time prescribed due to an outage of either the EPA's CEDRI or CDX systems.
(2) The outage must have occurred within the period of time beginning 5 business days prior to the date that the submission is due.
(3) The outage may be planned or unplanned.
(4) You must submit notification to the Administrator in writing as soon as possible following the date you first knew, or through due diligence should have known, that the event may cause or caused a delay in reporting.
(5) You must provide to the Administrator a written description identifying:
(i) The date(s) and time(s) when CDX or CEDRI was accessed and the system was unavailable;
(ii) A rationale for attributing the delay in reporting beyond the regulatory deadline to EPA system outage;
(iii) Measures taken or to be taken to minimize the delay in reporting; and
(iv) The date by which you propose to report, or if you have already met the reporting requirement at the time of the notification, the date you reported.
(6) The decision to accept the claim of EPA system outage and allow an extension to the reporting deadline is solely within the discretion of the Administrator.
(7) In any circumstance, the report must be submitted electronically as soon as possible after the outage is resolved.
(k)
(1) You may submit a claim if a
(2) You must submit notification to the Administrator in writing as soon as possible following the date you first knew, or through due diligence should have known, that the event may cause or has caused a delay in reporting.
(3) You must provide to the Administrator:
(i) A written description of the
(ii) A rationale for attributing the delay in reporting beyond the regulatory deadline to the
(iii) Measures taken or to be taken to minimize the delay in reporting; and
(iv) The date by which you propose to report, or if you have already met the reporting requirement at the time of the notification, the date you reported.
(4) The decision to accept the claim of
(5) In any circumstance, the reporting must occur as soon as possible after the
You must keep the records specified in paragraphs (a) through (h) of this section.
(c) Before the compliance date specified in § 63.7995(e), a record of each time a safety device is opened to avoid unsafe conditions in accordance with § 63.8000(b)(2). On and after the compliance date specified in § 63.7995(e), a record of the information in paragraphs (c)(1) through (3) of this section.
(1) The source, nature, and cause of the opening.
(2) The date, time, and duration of the opening.
(3) An estimate of the quantity of total HAP emitted during the opening and the method used for determining this quantity.
(e) Before the compliance date specified in § 63.7995(e), for each CEMS, you must keep the records of the date and time that each deviation started and stopped, and whether the deviation occurred during a period of SSM or during another period. On and after the compliance date specified in § 63.7995(e), for each CEMS, you must keep the records of the date and time that each deviation started and stopped, and whether the deviation occurred during a period of SSM or during another period.
(f) Before the compliance date specified in § 63.7995(e), in the SSMP required by § 63.6(e)(3), you are not required to include Group 2 or non-affected emission points. For equipment leaks only, the SSMP requirement is limited to control devices and is optional for other equipment. On and after the compliance date specified in § 63.7995(e), the requirements of this paragraph (f) no longer apply.
(h) On and after the compliance date specified in § 63.7995(e), records of the total source operating time (hours) for stationary process vessels during the semiannual compliance period, and the source operating time (hours) when the control device for stationary process vessels was bypassed during the semiannual compliance period for any reason, as used in determining compliance with the percent emission reduction requirements in Table 1 to this subpart, as specified in § 63.8005(h).
(i) On and after the compliance date specified in § 63.7995(e), for each deviation from an emission limitation reported under § 63.8075(e)(5), a record of the information specified in paragraphs (i)(1) and (2) of this section, as applicable.
(1) In the event that an affected unit fails to meet an applicable standard, record the number of failures. For each failure record the date, time, and duration of each failure.
(2) For each failure to meet an applicable standard, record and retain a list of the affected sources or equipment, an estimate of the quantity of each regulated pollutant emitted over any emission limit and a description of the method used to estimate the emissions.
(j) Any records required to be maintained by this subpart that are submitted electronically via the EPA's CEDRI may be maintained in electronic format. This ability to maintain electronic copies does not affect the requirement for facilities to make records, data, and reports available upon request to a delegated air agency or the EPA as part of an on-site compliance evaluation.
(b)
(g) * * *
(i) Fails to meet any requirement or obligation established by this subpart including, but not limited to, any emission limit, operating limit, or work practice standard;
(ii) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or
(iii) Before the compliance date specified in § 63.7995(e), fails to meet any emission limit, operating limit, or work practice standard in this subpart during SSM, regardless of whether or not such failure is permitted by this subpart. On and after the compliance date specified in § 63.7995(e), this paragraph (iii) no longer applies.
As required in § 63.8015, you must meet each requirement in the following table that applies to your equipment leaks.
As specified in § 63.8020, the partially soluble HAP in wastewater that are subject to management and treatment requirements in this subpart are listed in the following table:
As specified in § 63.8095, the parts of the general provisions that apply to you are shown in the following table:
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations that provide guidance under section 1061 of the Internal Revenue Code (Code). Section 1061 recharacterizes certain net long-term capital gains of a partner that holds one or more applicable partnership interests as short-term capital gains. An applicable partnership interest is an interest in a partnership that is transferred to or held by a taxpayer, directly or indirectly, in connection with the performance of substantial services by the taxpayer, or any other related person, in any applicable trade or business. These proposed regulations also amend existing regulations on holding periods to clarify the holding period of a partner's interest in a partnership that includes in whole or in part an applicable partnership interest and/or a profits interest. These regulations affect taxpayers who directly or indirectly hold applicable partnership interests in partnerships and the passthrough entities in which the applicable partnership interest is held, directly or indirectly.
Written or electronic comments and requests for a public hearing must be received by October 5, 2020, which is 60 days after the date of filing for public inspection with the Office of the Federal Register. Requests for a public hearing must be submitted as prescribed in the “Comments and Requests for a Public Hearing” section.
Commenters are strongly encouraged to submit public comments electronically. Submit electronic submissions via the Federal eRulemaking Portal at
Concerning submissions of comments and/or requests for a public hearing, Regina L. Johnson at (202) 317-5177 (not a toll-free number); Email address:
This document contains proposed regulations under section 1061 of the Code to amend the Income Tax Regulations (26 CFR part 1). Section 1061 was added to the Code on December 22, 2017, by the enactment of section 13309 of Public Law 115-97, 131 Stat. 2054 (2017), commonly referred to as the Tax Cuts and Jobs Act (TCJA). Section 1061 applies to taxable years beginning after December 31, 2017. Section 1061 recharacterizes certain net long-term capital gain with respect to applicable partnership interests (
Section 1061(a) recharacterizes as short-term capital gain the difference between a taxpayer's net long-term capital gain with respect to one or more APIs and the taxpayer's net long-term capital gain with respect to these APIs if paragraphs (3) and (4) of section 1222, which define the terms long-term capital gain and long-term capital loss, respectively, for purposes of subtitle A of the Code, are applied using a three-year holding period instead of a one-year holding period. These proposed regulations refer to this difference as the
The proposed regulations provide that the person who is subject to Federal income tax on the Recharacterization Amount is required to calculate such amounts and refer to this person as the
Although an API can be held directly by an Owner Taxpayer, it also may be held indirectly through one or more passthrough entities (
Section 1061(a) applies to a taxpayer's net long-term capital gain with respect to one or more APIs held during the taxable year. The proposed regulations provide that the determination of a taxpayer's net long-term capital gain with respect to the taxpayer's APIs held during the taxable year includes the taxpayer's combined net distributive share of long-term capital gain or loss from all APIs held during the taxable year and the Owner Taxpayer's long-term capital gain and loss from the disposition of any APIs during the taxable year. The proposed regulations refer to long-term capital gains and losses recognized with respect to an API as
The proposed regulations provide that API Gains and Losses do not include long-term capital gain determined under sections 1231 and 1256, qualified dividends described in section 1(h)(11)(B), and any other capital gain that is characterized as long-term or short-term without regard to the holding period rules in section 1222, such as capital gain characterized under the identified mixed straddle rules described in section 1092(b). Additionally, API Gains and Losses do not include
Section 1061(c)(1) provides that an API is a partnership interest held by, or transferred to, a taxpayer, directly or indirectly, in connection with the performance of substantial services by the taxpayer, or by any other related person, in any applicable trade or business (
An API is an interest in a partnership's profits that is transferred or held in connection with the performance of services. There may be one or more tiers of Passthrough Entities between the partnership that originally issued the API and the Passthrough Entity in which the Owner Taxpayer holds its indirect interest in the API. Each Passthrough Entity in the tiered structure is treated as holding an API under the proposed regulations, that is, each Passthrough Entity is an API Holder. An API Holder may be an individual, partnership, trust, estate, S corporation, or a passive foreign investment company (PFIC) with respect to which the shareholder has a qualified electing fund (QEF) election in effect under section 1295.
Section 1061(c)(1), similar to section 1061(a), uses the term “taxpayer.” The proposed regulations provide that an Owner Taxpayer is the taxpayer for purposes of section 1061(a). However, section 1061(c)(1) requires that an API be transferred to a taxpayer in connection with services performed by the taxpayer or by a related person. The proposed regulations provide that the reference to “taxpayer” in section 1061(c)(1) includes not only an Owner Taxpayer, but also includes a
A partnership interest is an API if it is transferred in connection with the performance of substantial services. The proposed regulations presume that services are substantial with respect to the partnership interest transferred in connection with those services. This presumption is based on the assumption that the parties have economically equated the services performed with the potential value of the partnership interest transferred. The proposed regulations provide that once a partnership interest is an API, it remains an API and never loses that character, unless one of the exceptions to the definition of an API applies.
Under section 1061, for an interest in a partnership to be an API, the interest must be held or transferred in connection with the performance of services in an ATB. An ATB is defined in section 1061(c)(2) as any activity conducted on a regular, continuous, and substantial basis which consists, in whole or in part, of raising or returning capital, and either (i) investing in (or disposing of) specified assets (or identifying specified assets for such investing or disposition), or (ii) developing specified assets. The proposed regulations refer to these actions, respectively, as
In applying the ATB Activity Test, the proposed regulations provide that, in some cases, it is not necessary for both Raising or Returning Capital Actions and Investing or Developing Actions to occur in a single year for an ATB to exist in that year. Further, Raising or Returning Capital Actions and Investing or Developing Actions of related persons are aggregated together to determine if the ATB Activity Test is met.
Section 1061(c)(3) provides that specified assets (
Section 1061(c)(4)(A) provides that an API does not include any interest in a partnership directly or indirectly held by a corporation. In Notice 2018-18 (2018-12 IRB 443, March 19, 2018), the Treasury Department and the IRS provided notice that the regulations under section 1061 would provide that the term “corporation” for purposes of section 1061(c)(4)(A) does not include an S corporation. Any timely comments received on Notice 2018-18 will be considered as part of the Treasury decision adopting these proposed regulations as final regulations.
Section 1061(c)(4)(B) also provides that an API does not include certain capital interests. The proposed regulations implement the capital interest exception by excepting long-term capital gains and losses that represent a return on an API Holder's invested capital in a Passthrough Entity from recharacterization under section 1061. The proposed regulations refer to these amounts as
Under the proposed regulations, a partner's invested capital in a partnership that maintains capital accounts under § 1.704-1(b)(2)(iv) is the partner's capital account. In the case of a Passthrough Entity that is not a partnership (or a partnership that does not maintain capital accounts under § 1.704-1(b)(2)(iv)), if the Passthrough Entity maintains and determines accounts for its owners in a manner similar to that provided in § 1.704-1(b)(2)(iv), those accounts will be treated as capital accounts for purposes of the proposed regulations. In order for an allocation to be treated as a Capital Interest Allocation or a Passthrough Interest Capital Allocation, the allocation must be based on an API Holder's relative capital account balance in the Passthrough Entity. Although Unrealized API Gain or Loss is included in an owner's capital account, the gain or loss will be treated as API Gain or Loss and not as Capital Interest Gain or Loss when recognized. An allocation of API Gain or Loss from a lower-tier entity to an upper-tier entity is always API Gain or Loss when further allocated by the upper-tier entity to its direct interest
If an owner disposes of an interest that is composed of a capital interest and an API, the proposed regulations provide a mechanism for the owner to determine the portion of long-term capital gain or loss recognized on the disposition that is treated as a Capital Interest Disposition Amount and thus, a Capital Interest Gain or Loss.
Section 1061(c)(1) provides an exception for certain partnership interests held by employees of entities that are not engaged in an ATB. The proposed regulations track the statutory language. Also, the proposed regulations add an exception for an API that is acquired by a bona fide purchaser who (i) does not provide services, (ii) is unrelated to any service provider, and (iii) acquired the interest for fair market value.
Section 1061(b) provides regulatory authority to establish an exception to section 1061(a) for gain attributable to any assets not held for portfolio investment on behalf of third party investors. The proposed regulations reserve on the exercise of this authority.
Section 1061(d) accelerates the recognition of capital gain on a direct or indirect transfer that would not otherwise be a taxable event and recharacterizes certain long-term capital gain as short-term capital gain. Under section 1061(d), if a taxpayer transfers an API to a related person described in section 1061(d)(2), then, without regard to whether the transfer is otherwise a taxable event, the taxpayer includes in gross income, as short-term capital gain, the excess of (A) the net built-in long-term capital gain in assets attributable to the transferred interest with a holding period of three years or less, over (B) the amount of long-term capital gain treated as short term capital gain under section 1061(a) on the transfer. The proposed regulations provide that the term transfer includes, but is not limited to, contributions, distributions, sales and exchanges, and gifts. A related person for purposes of section 1061(d)(2) is defined more narrowly than a related person for purposes of section 1061(c)(1) and includes only members of the taxpayer's family within the meaning of section 318(a)(1), the taxpayer's colleagues (those who provided services in the ATB during certain time periods) and, under the proposed regulations, a Passthrough Entity to the extent that a member of the taxpayer's family or a colleague is an owner. The proposed regulations provide that a contribution under section 721(a) to a partnership is not treated as a transfer to a Section 1061(d) Related Person because the proposed regulations require that, under the principles of section 704(c) and §§ 1.704-1(b)(2)(iv)(f) and 1.704-3(a)(9), all Unrealized API Gains at the time of contribution must be allocated to the API Holder contributing the interest when those gains are recognized by the partnership.
Section 1061(e) provides that the Secretary of the Treasury or his delegate (Secretary) shall require such reporting as is necessary to carry out the purposes of section 1061. The proposed regulations include rules for providing information required to compute the Recharacterization Amount when there is a tiered structure.
The statute requires that the Secretary issue such regulations or other guidance as is necessary or appropriate to carry out the purposes of section 1061. The legislative history indicates that such guidance is to address the prevention of abuse of the purposes of the provision.
Section 1.1061-1 provides definitions of the terms used in §§ 1.1061-1 through 1.1061-6 of these proposed regulations. Section 1.1061-2 provides rules and examples regarding APIs and ATBs. Section 1.1061-3 provides guidance on the exceptions to an API, including the capital interest exception. Section 1.1061-4 provides guidance on the computation of the Recharacterization Amount and computation examples. Section 1.1061-5 provides guidance regarding the application of section 1061(d) to transfers to certain related parties. Section 1.1061-6 provides reporting rules. Because the application of section 1061 requires a clear determination of the holding period of a partnership interest that is, in whole or in part, an API, these proposed regulations also provide clarifying amendments to § 1.1223-3. Additional clarifying amendments to § 1.702-1(a)(2) and § 1.704-3(e) are also proposed.
Section 1.1061-1 provides definitions of terms used in §§ 1.1061-1 through 1.1061-6 of these proposed regulations. The definitions in § 1.1061-1 combined with the operational rules in § 1.1061-2 identify the taxpayer to which section 1061 applies, when an interest is an API, what constitutes an ATB, and who is a related party. These definitions include terms for identifying interests when an API is held through one or more passthrough entities. For purposes of these regulations, a
Section 1061(a) refers to a taxpayer in terms of the person whose net long-term capital gains from one or more APIs are recharacterized as net short-term capital gain under the statute. The proposed regulations refer to this amount as the
Section 1061(c)(1) defines an API as any interest in a partnership which, directly or indirectly, is transferred to (or held by) the taxpayer in connection with the performance of substantial services by the taxpayer, or by any other related person, in any ATB. These proposed regulations also provide that solely for purposes of section 1061, an interest in a partnership includes any financial instrument or contract, the value of which is determined, in whole or in part, by reference to the partnership (including the amount of partnership distributions, the value of partnership assets, or the results of partnership operations).
Comments and other commentary (collectively referred to as comments) considered by the Treasury Department and the IRS highlight the importance of the definition of the term “taxpayer” for purposes of section 1061(a) with respect
The proposed regulations adopt a partial entity approach. To apply this approach, the proposed regulations provide for two definitions of a taxpayer (
The proposed regulations define the term Passthrough Taxpayer as an entity that generally does not pay tax itself, notwithstanding that a Passthrough Taxpayer could be responsible for paying an imputed underpayment calculated based on adjustments to partnership related items under section 6225 (Partnership adjustment by the Secretary) or that a Passthrough Taxpayer that is an electing 1987 partnership (as defined in section 7704(g)(2)) could be responsible for paying the tax set forth in section 7704(g)(3). An Owner Taxpayer and a Passthrough Taxpayer each are treated as a taxpayer for the purpose of determining whether an API exists. In determining whether the elements of an API are present, a Passthrough Taxpayer can be (i) the service provider, (ii) a person related to the service provider, (iii) engaged in an ATB, or (iv) the recipient of an interest in connection with the performance of substantial services in an ATB. If a Passthrough Taxpayer is treated as the recipient (or holder) of a partnership interest, directly or indirectly, for purposes of determining the existence of an API, the ultimate owners of the Passthrough Taxpayer are treated as Owner Taxpayers for the purpose of determining the Recharacterization Amount. Owner Taxpayers do not include owners of a Passthrough Taxpayer who are excepted from the application of section 1061 under § 1.1061-3. Additionally, Owner Taxpayers to whom a partnership interest is directly or indirectly transferred in connection with the Owner Taxpayer's or a related party's performance of substantial services in an ATB are also treated as taxpayers for purposes of determining the existence of an API. Section 1.1061-2 of the proposed regulations provides examples of how the existence of an API is determined.
Revenue Procedure 93-27 (1993-2 C.B. 343) defines a profits interest and provides a safe harbor under which the IRS will not treat the receipt of a profits interest as a taxable event for the partner or the partnership if certain requirements are met.
The proposed regulations include the term
The proposed regulations define an
A
In the case of a Passthrough Entity that contributes property that on disposition would generate capital gain or loss subject to section 1061 to another Passthrough Entity, Unrealized Capital Gains and Losses include the appreciation or depreciation in the value of the property at the time of the contribution. Accordingly, Unrealized API Gains and Losses include the capital gains and losses that would be allocated to the API Holder with respect to the API if the property contributed by the Passthrough Entity to the lower-tier Passthrough Entity were sold immediately before the contribution for the amount that is included in the invested capital of the lower-tier Passthrough Entity (
In the case of a revaluation of the property of a partnership that owns an interest in a tiered structure of partnerships or in the case of the contribution of an API to another Passthrough Entity, the proposed regulations provide that Unrealized API Gains and Losses include capital gains and losses that would be allocated directly or indirectly to the API Holder by lower-tier partnerships determined as if a taxable disposition of the property of each of the lower-tier partnerships also occurred on the date of the revaluation or contribution.
Although the proposed regulations do not require revaluations under section 1.704-1(b)(2)(iv)(f), solely to determine and identify Unrealized API Gains and Losses for purposes of section 1061 upon the occurrence of a revaluation or contribution, these regulations require that a revaluation under the principles of § 1.704-1(b)(2)(iv)(f) be made through each relevant tier of partnerships. Thus, the proposed regulations require revaluations of all the properties held by all relevant partnerships in a tiered structure to determine the extent to which the partnership has Unrealized API Gains and Losses. If a partnership is required to revalue its assets for purposes of section 1061, such partnership is permitted to revalue its property for purposes of section 704 as though an event in § 1.704-1(b)(2)(iv)(f)(5) had occurred.
Further, the proposed regulations require that Unrealized API Gains and Losses of a partnership be allocated when recognized under principles consistent with § 1.704-3(a)(9). Accordingly, if at the time an API Holder contributes an interest in a lower-tier partnership to an upper-tier partnership, and the lower-tier partnership holds property with Unrealized API Gains and Losses that are allocable to the API Holder, those gains and losses when recognized by the lower-tier partnership must be allocated by the upper-tier partnership to the API Holder for purposes of section 1061.
The Treasury Department and the IRS believe that these rules serve two purposes. First, the rules ensure that capital gains and losses that would be API Gains and Losses are not converted to Capital Interest Gains and Losses by virtue of a revaluation or a contribution. Second, these rules also ensure that Unrealized API Gains and Losses of a partnership when recognized are properly allocated to the correct API Holder in a tiered structure of partnerships. The Treasury Department and the IRS request comments on whether such section 1061 revaluations are necessary or whether there is another mechanism that would ensure that API Gain or Loss is allocated to API Holders when there is a revaluation event in one or more of the tiers of entities. Further, comments are requested on whether the section 704(b) regulations should be amended to specifically include revaluations when such partnership revalues its assets for purposes of section 1061 or to address revaluations through tiers of partnerships for purposes of section 704 more generally.
Unrealized API Gains and Losses that are recognized with respect to an asset or API held for more than one year on the date of its disposition become API Gains and Losses at the time they are recognized and do not lose their character as they are allocated through Passthrough Entities in a tiered structure. API Gains and Losses do not include any amounts that otherwise are treated as ordinary income under any Code section including section 751 and section 1245.
The Treasury Department and the IRS are aware that taxpayers may seek to circumvent section 1061(a) by waiving their rights to gains generated from the disposition of a partnership's capital assets held for three years or less and substituting for these amounts gains generated from capital assets held for more than three years. Alternatively, taxpayers may waive their rights to API Gains and substitute gains that are not taken into account for purposes of determining the Recharacterization Amount. Some arrangements also may include the ability for an API Holder to periodically waive its right to an allocation of capital gains from all assets in favor of an allocation of capital gains from assets held for more than three years and/or a priority fill up allocation designed to replicate the economics of an arrangement in which the API Holder shares in all realized gains over the life of the fund. These arrangements are often referred to as carry waivers or carried interest waivers. Taxpayers should be aware that these and similar arrangements may not be respected and may be challenged under section 707(a)(2)(A), §§ 1.701-2 and 1.704-1(b)(2)(iii), and/or the substance over form or economic substance doctrines.
Section 1061(c)(1) provides that an API includes an interest transferred to or held by a taxpayer in connection with the performance of substantial services by the taxpayer or a related person in an applicable trade or business. Section 1061(d) also provides a rule for transfers of APIs to certain related persons. Section 1061(d)(2) provides a definition of related person that applies solely to transfers subject to section 1061(d) and the proposed regulations refer to that person as a
Section 1061 does not contain a provision that would cause an interest to cease to be an API unless and until one of the exceptions to the definition of API applies. Therefore, the proposed regulations clarify that once a
API Gain or Loss retains its character as API Gain or Loss as it is allocated through tiered Passthrough Entities. Similarly, Unrealized API Gain or Loss retains its character even though it is included in the invested capital of a Passthrough Entity (
Section 1061(c)(1) provides that an interest in a partnership is an API only if the interest is transferred to or held by the taxpayer in connection with the performance of substantial services by the taxpayer, or by a related person, in an ATB. If a taxpayer provides any services in an ATB and an allocation of a partnership's profits is transferred to or held by the taxpayer in connection with those services, the proposed regulations presume that those services are substantial for purposes of Section 1061. The Treasury Department and the IRS have concluded that if an interest is granted in connection with the performance of services, such services are presumed substantial with respect to the interest transferred. This presumption is appropriate because the parties to the arrangement have economically equated the potential value of the interest granted with the value of the services performed. Therefore, the services provided are presumed to be substantial with respect to the interest transferred.
The Treasury Department and the IRS request comments on this presumption and the specifics of any arrangements in which insubstantial services could be performed in connection with the receipt of a profits interest such that the presumption could be overcome. Those comments also should address how and why Revenue Procedure 93-27 and Revenue Procedure 2001-43 would apply to partnership interests received in exchange for such insubstantial services.
Entities that are disregarded from their owners (collectively, disregarded entities) under any provision of the Code or regulations, including grantor trusts and qualified subchapter S subsidiaries, are disregarded for purposes of these regulations. Accordingly, if an API is held by or transferred to a disregarded entity, the API is treated as held by or transferred to the disregarded entity's owner.
The proposed regulations provide that an ATB means any activity for which the
Specified Actions include both
The definition of Specified Assets in the proposed regulations generally tracks the statutory definition of specified assets in section 1061(c)(3). Both the statute and the proposed regulations provide that a Specified Asset generally includes a security as defined in section 475(c)(2). Thus, all corporate stock, regardless of the size of the corporation or whether the corporation is publicly traded, is a specified asset. Additionally, the proposed regulations, consistent with the definition of security in section 475(c)(2), provide that an interest in a partnership or a beneficial ownership interest in a trust is a Specified Asset if it is a security described in section 475(c)(2). The proposed regulations follow the statute to provide that options or derivative contracts with respect to any of the foregoing Specified Assets are also Specified Assets. Further, as provided in section 1061(c)(3), an interest in a partnership is also a Specified Asset to the extent that the partnership itself holds Specified Assets. The Blue Book provides an example in which a hedge fund acquires an interest in a partnership that is neither publicly traded nor widely held and whose assets consist of stocks, bonds, positions that are clearly identified hedges with respect to securities, and commodities. The Blue Book provides that the partnership interest is a specified asset for purposes of the provision. Blue Book at 203. The proposed regulations
In the case of a partnership that directly holds Specified Assets, actions taken with respect to or on account of these assets, as well as a percentage of the actions taken with respect to the partnership interest as a whole, will be taken into account for purposes of the ATB Activity Test. The percentage of the actions taken with respect to the partnership as a whole that are taken into account for the test is the ratio of the value of the partnership's Specified Assets over the value of all of the partnership's assets. Actions taken to manage working capital will not be taken into account for purposes of the ATB Activity Test. The Treasury Department and the IRS request comments on the application of this rule and how it can be tailored to accomplish the purposes of section 1061.
The proposed regulations provide that the ATB Activity Test takes into account the aggregate actions conducted with respect to Raising or Returning Capital Actions and Investing or Developing Actions. In other words, the ATB Activity Test does not require that Raising or Returning Capital Actions and Investing or Developing Actions each individually meet the required activity level for the ATB Activity Test to be satisfied.
The Treasury Department and the IRS recognize that, in some cases, once sufficient capital to engage in Investing or Developing Actions has been raised, actions involving raising or returning capital may not be taken for a period of time. Additionally, at the beginning and the end of the activity, actions involving the raising or returning of capital may be significant and actions involving investing or developing may not be taken. The ATB Activity Test looks at the actions taken as a whole. Accordingly, the proposed regulations provide that the ATB Activity Test is met if Investing or Developing Actions alone satisfy the ATB Activity Test in the current year if Raising or Returning Capital Actions have been taken in prior years. Additionally, the test is satisfied if Raising or Returning Capital Actions during the year satisfy the ATB Activity Test and Investing or Developing Actions are anticipated but not yet taken.
The proposed regulations further provide that in applying the ATB Activity Test, the actions of one or more Related Persons are taken into account, regardless of whether an entity conducts only Raising or Returning Capital Actions or only Investing or Developing Actions.
An API arises when an interest in a partnership is transferred or held in connection with services in an ATB. The Treasury Department and the IRS are aware that interests in a partnership may be issued to a service provider in anticipation of the service provider providing services to an ATB, but because an ATB does not exist at the time of the transfer, the interest is not an API. The Treasury Department and the IRS have concluded that once the service provider is providing services in an ATB, the interest becomes an API. Once the interest becomes an API, its status as an API does not depend on whether the ATB continues to meet the ATB Activity Test.
Section 1061 includes four exceptions to its application. Additionally, these regulations provide an additional exception. First, the statutory definition of an API excepts an interest held by a person who is employed by another entity that is conducting a trade or business (other than an ATB) and provides services only to such other entity (non-ATB employee exception). Second, section 1061(c)(4)(A) provides that an API does not include any interest in a partnership directly or indirectly held by a corporation (corporate exception). Third, section 1061(c)(4)(B) provides that an API does not include any capital interest in the partnership (Capital Interest Gains and Losses exception). Fourth, section 1061(b) provides that to the extent provided by the Secretary, section 1061 will not apply to income or gain attributable to any asset not held for portfolio investment on behalf of third party investors (Section 1061(b) exception). Lastly, § 1.1061-3 introduces a fifth exception that applies to an unrelated purchaser who is a non-service provider (bona fide unrelated purchaser exception).
Section 1061(c)(1) provides that an API is not held by a person who is employed by another entity that is conducting a trade or business (other than an ATB) and provides services only to such other entity. The proposed regulations track the language of the statute.
Section 1061(c)(4)(A) provides that the term API does not include a partnership interest directly or indirectly held by a corporation. On March 19, 2018, the Treasury Department and the IRS issued Notice 2018-18, notifying taxpayers that the Treasury Department and the IRS intended to issue regulations providing that the term corporation as used in section 1061(c)(4)(A) does not include an S corporation. The notice informed taxpayers that the regulations under section 1061 would provide that this rule is effective for taxable years beginning after December 31, 2017 to prevent taxpayers from avoiding the application of section 1061 through the use of an S corporation.
The Treasury Department and the IRS also have concluded that a partnership interest held by a PFIC with respect to which a taxpayer has a QEF election in effect is treated as an API if the interest meets the API definition. Under section 1291, generally, a U.S. person who owns stock of a PFIC is subject to an interest charge regime in which interest is charged with respect to certain PFIC distributions and dispositions of PFIC shares. However, the shareholder can avoid the interest charge regime by making an election under section 1295 to treat the PFIC as a QEF. If this election is made, then the holder of the stock generally is not subject to the interest charge regime and instead includes in income each taxable year its
Section 1061(f) provides that the Secretary has authority to issue regulations as are necessary or appropriate to carry out the purposes of section 1061. Both the Conference Report and the Blue Book further direct the Treasury Department and the IRS to issue regulations to address the prevention of abuse of the purposes of the provision. The Treasury Department and the IRS have concluded that the grant of regulatory authority in section 1061 is sufficient for the government to issue regulations providing that the exception in section 1061(c)(4)(A) does not include S corporations and PFICs with respect to which shareholders have QEF elections in effect. The rule that the exception in section 1061(c)(4)(A) does not apply to a PFIC with respect to which the shareholder has a QEF election in effect applies to all taxable years beginning after the date the proposed regulations are published in the
Section 1061(c)(4)(B) provides that an API does not include a capital interest in the partnership that provides a right to share in partnership capital commensurate with (i) the amount of capital contributed (determined at the time of receipt of such partnership interest), or (ii) the value of such interest subject to tax under section 83 upon the receipt or vesting of such interest. The statutory language creates an exception from recharacterization under section 1061 for capital gains and losses with respect to a capital interest. The Conference Report includes an example in which a partnership agreement provides that a partner's share of the partnership's capital is commensurate with the amount of capital the partner contributed at the time the partnership interest was received compared to the total partnership capital. The reference to the amount of capital contributed in section 1061(c)(4)(B)(i) and a similar reference in the Conference Report indicate that the exception for capital interests should apply only to the extent that a service provider's rights with respect to its contributed capital matches the rights of other non-service partners with respect to their shares of contributed capital. Conference Report at 420-21.
These proposed regulations provide rules for determining if capital gains and losses allocated to an API Holder are treated as allocations with respect to its capital investment and therefore, excluded from the application of section 1061. As discussed in more detail in section II.C.1, of this Explanation of Provisions, General Rules Applicable to the Determination of Capital Interest Allocations and Passthrough Interest Allocations, an allocation must be made in proportion to the relative value of the API Holder's capital account (including unrealized gains and losses) in the Passthrough Entity in order to be an allocation with respect to a capital investment. The proposed regulations also provide rules for determining the amount of gain or loss recognized on the disposition of a Passthrough Interest that is allocable to the capital interest.
The proposed regulations refer to capital gains and losses with respect to a capital interest as Capital Interest Gains and Losses. Specifically, the proposed regulations provide that Capital Interest Gains and Losses are Capital Interest Allocations, Passthrough Interest Capital Allocations and Capital Interest Disposition Amounts.
The proposed regulations provide that allocations based on the partners' capital account balances that have the same terms, the same priority, the same type and level of risk, the same rate of return, the same rights to cash or property distributions during partnership operations and on liquidation will be treated as made in the same manner. The proposed regulations also provide that an allocation to an API Holder will not fail to be treated as a Capital Interest Allocation solely because it is subordinated to an allocation to Unrelated Non-service Partners or because it is not reduced by the cost of services provided by the API Holder or by a related person.
In the case of a partnership that maintains capital accounts under § 1.704-1(b)(2)(iv), in order for an allocation to qualify as a Capital Interest Allocation or a Passthrough Interest Capital Allocation, the allocation must be based on the capital account determined under § 1.704-1(b)(2)(iv). In the case of a Passthrough Entity that is not a partnership (or a partnership that does not maintain capital accounts under § 1.704-1(b)(2)(iv)), if the Passthrough Entity maintains and determines accounts for its owners in a manner similar to that provided under § 1.704-1(b)(2)(iv), those accounts will be treated as capital accounts under the proposed regulations. These accounts must be used in order for an allocation to qualify as a Capital Interest Allocation or a Passthrough Interest Capital Allocation. To qualify to be treated as a capital account for this purpose, each owner's account must be increased by the money and the net fair market value of property contributed to the Passthrough Entity and income and gain allocated to the owner. Each owner's account must be decreased by any money and the net fair market value of property distributed to the owner and allocations of expenditures, loss, and deduction.
Generally, Passthrough Interest Capital Allocations must be based on each owner's share of the Passthrough Entity's capital account in the partnership making the Capital Interest Allocations to the Passthrough Entity. Passthrough Interest Direct Investment Allocations generally must be based on each owner's share of the capital investment made by the Passthrough Entity. This amount is equal to the capital account of the owner reduced by that owner's share of a capital account held directly or indirectly by the Passthrough Entity in a lower-tier entity. However, if a Passthrough Entity allocates all Passthrough Interest Capital Allocations for the taxable year in the aggregate, regardless of whether they are Capital Interest Allocations or Passthrough Interest Direct Investment Allocations, the Passthrough Entity may allocate those allocations based on each owner's capital account in the Passthrough Entity, regardless of whether some or all of an owner's
For purposes of section 1061, a capital account does not include the contribution of amounts directly or indirectly attributable to any loan or other advance made or guaranteed, directly or indirectly, by any other partner or the partnership (or any person related to any such other partner or the partnership). However, the repayments on the loan are included in capital accounts as those amounts are paid (unless the repayments are funded with a similar loan from the partners or the partnership or any person related to such partners or the partnership).
Capital Interest Allocations and Passthrough Interest Capital Allocations never include any amounts that are treated as API Gains and Losses or Unrealized API Gains and Losses that are allocated to the Passthrough Entity by a lower-tier Passthrough Entity. Such allocations also exclude Partnership Transition Amounts and other items not taken into account for purposes of section 1061 as described in section III.E of this Explanation of Provisions.
Capital Interest Allocations can be made only by a partnership that has both API Holders and Unrelated Non-Service Partners. Unrelated Non-Service Partners are partners who do not (and did not) provide services in the Relevant ATB and who are not (and were not) related to an API Holder in the partnership or any person who provides services in the Relevant ATB. Capital Interest Allocations are allocations of long-term capital gain and loss made under the partnership agreement to the API Holder and Unrelated Non-Service Partners based on their respective capital account balances if: (1) The allocations are made to Unrelated Non-Service Partners with a significant aggregate capital account balance; (2) the allocations are made in the same manner to the API Holder and the Unrelated Non-Service Partners; and (3) the terms of the allocations to the API Holder and the Unrelated Non-Service Partners are identified both in the partnership agreement and on the partnership's books and records and the allocations are clearly separate and apart from allocations made with respect to the API.
These proposed regulations provide that allocations made to Unrelated Non-service Partners with an aggregate capital account balance of 5 percent or more of the aggregate capital account balance at the time the allocation is made by the partnership will be treated as significant.
Passthrough Interest Capital Allocations are long-term capital gain and loss allocations made by a Passthrough Entity that holds an API. The proposed regulations provide for two types of Passthrough Interest Capital Allocations: Passthrough Capital Allocations and Passthrough Interest Direct Investment Allocations.
Passthrough Capital Allocations are Capital Interest Allocations made directly or indirectly to the Passthrough Entity from a lower-tier entity with respect to its capital account balance in the lower-tier entity. Passthrough Capital Allocations must be made by the Passthrough Entity to each of its owners in the same manner based on each owner's share of the capital account in the lower-tier entity making the Capital Interest Allocation to the Passthrough Entity.
Allocations are treated as Passthrough Interest Direct Investment Allocations if the allocations are comprised solely of long-term capital gains and losses derived from assets (other than an API) directly held by the Passthrough Entity and not through an allocation from a lower tier Passthrough Entity. Also, if a Passthrough Entity received Distributed API Property from a lower-tier entity and the property is no longer Distributed API Property because it has been held for more than three years, the property is included in the Passthrough Entity's direct investment at that time. Generally, allocations must be made in the same manner to each of the owners of the Passthrough Entity based on each owner's relative investment in the assets held by the Passthrough Entity. An allocation will not fail to qualify to be a Passthrough Interest Direct Investment Allocation if the Passthrough Entity is a partnership and allocations made to one or more Unrelated Non-Service Partners have more beneficial terms than allocations to the API Holders if the allocations to the API Holders are made in the same manner. For example, if an Unrelated Non-Service Partner receives a priority allocation and distribution of 10 percent of net long-term capital gain and loss and the other partners, including the API Holders, share the remaining 90 percent of the net long-term capital gain from the Passthrough Entity's direct investments, allocations to the API Holders are Passthrough Interest Direct Investment Allocations. Further, allocations made in the same manner to some API Holders by a partnership will not fail to qualify to be treated as a Passthrough Interest Direct Investment Allocation as to those partners despite allocations being made to one or more service providers (or related parties) that are treated as APIs issued by the Passthrough Entity. For example, if (1) all of the partners of the Passthrough Entity are API Holders and one partner manages the Passthrough Entity's direct investments and receives a 20 percent interest in the net long-term capital gains from those investments that is treated as an API as to that partner and (2) the other API Holders share the remaining 80 percent of gain from those investments based on their relative investments in the Passthrough Entity, then (3) the allocation of the 80 percent of net long-term capital gain is a Passthrough Interest Direct Investment Allocation to those partners.
Instead of separately accounting for Passthrough Capital Allocations and Passthrough Interest Direct Investment Allocations, owners of the Passthrough Entity may prefer to allocate items of Capital Interest Gain or Loss without regard to whether these items arose from direct investment by the Passthrough Entity or from an investment in a lower-tier Passthrough Entity. Therefore, the proposed regulations permit an upper-tier Passthrough Entity to allocate its Passthrough Capital Allocations and Passthrough Interest Direct Investment Allocations in the same manner to all of its partners using the partners' capital accounts in such Passthrough Entity unreduced by amounts that are included in a capital account of the lower-tier entity.
The Treasury Department and the IRS understand that the allocations in the proposed regulations do not include all allocation arrangements. The Treasury Department and the IRS request comments on other allocation arrangements that appropriately could be treated as Capital Interest Gains and Losses under the regulations without inappropriately expanding the capital interest exception, taking into account the statutory requirement that the API Holder's right with respect to its capital interest be commensurate with other
The proposed regulations provide rules for determining the extent to which long-term capital gain or loss recognized on the disposition of a Passthrough Interest comprised of both an API and a capital interest is excluded from section 1061 because it is treated as Capital Interest Gain or Loss. Nothing in section 1061 or these proposed regulations overrides existing law regarding the determination of gain recognized on the disposition of all or a portion of a Passthrough Interest. In particular, in the case of a disposition of a portion of a Passthrough Interest, Revenue Ruling 84-53 (1984-1 C.B. 159) applies and basis must be equitably apportioned between the portion of the interest disposed of and the portion retained. These proposed regulations contain amendments to § 1.1223-3 for determining a divided holding period when a partnership interest includes an API and/or a profits interest.
A commenter requested guidance on whether a capital interest can be disposed of separately from an API for purposes of section 1061(a). The disposition of a capital interest will be treated as such under section 1061 and the gain or loss on the disposition is treated as Capital Interest Gain or Loss if the interest being disposed of is clearly identified as a capital interest. However, nothing in section 1061 or these proposed regulations changes the established partnership principle that a partner has a unitary basis in its partnership interest.
The proposed regulations provide that the amount of long-term capital gain or loss recognized on a disposition that is treated as a Capital Interest Disposition Amount is determined in a multi-step process. Amounts that are treated as ordinary income under section 751(a) or (b) as a result of the disposition are excluded from all steps of the calculation. The computation then proceeds as follows. First, the amount of gain or loss that would be allocated to the Passthrough Interest (or the portion of the Passthrough Interest sold) if all of the assets of the Passthrough Entity were sold for their fair market value in a fully taxable transaction (deemed liquidation) immediately before the disposition is determined (Step One). Second, the amount of gain or loss from the deemed liquidation that is allocable to the Passthrough Interest as a result of Capital Interest Allocations, and Passthrough Interest Capital Allocations is determined (Step Two). If a transferor recognizes capital gain under section 751(b), any amount that constitutes API Gain or Loss is added to any API Gain or Loss that results from the disposition of the interest.
If gain is recognized under the Code on the disposition of a Passthrough Interest, and the Capital Interest Allocations, Passthrough Interest Capital Allocations, and API Holder Transition Amounts determined under Step Two would result in the allocation of a loss, then all the gain recognized on the disposition will be treated as API Gain. Similarly, if loss is recognized on the disposition of a Passthrough Interest, and the Capital Interest Allocations, Passthrough Interest Capital Allocations, and API Holder Transition Amounts determined under Step Two would result in an allocation of a gain, then all of the loss recognized on the disposition will be treated as an API Loss.
If gain is recognized under the Code on the disposition of a Passthrough Interest and gain would be recognized with respect to the Passthrough Interest under both Step One and Step Two, the API Holder must determine the portion of the gain that is attributable to the capital interest and the portion of the gain that is attributable to the API. To determine these portions, the taxpayer must divide the capital gain that would be allocated to the interest pursuant to Capital Interest Allocations, Passthrough Interest Capital Allocations, and API Holder Transition Amounts on the deemed liquidation of the partnership under Step Two by the total amount of gain that would be allocated to the interest on the deemed liquidation under Step One. This amount, expressed as a percentage, is then multiplied by the total amount of gain recognized on the sale to determine the amount of the gain that is treated as a Capital Interest Disposition Amount. A similar analysis would apply if a loss was recognized on the disposition of the interest, and both Steps One and Two resulted in a loss. To the extent that the gain or loss is not treated as a Capital Interest Disposition Amount, it is API Gain or Loss and subject to section 1061.
The Treasury Department and the IRS are aware that some taxpayers have taken the position that a recapitalization or division is a capital contribution under section 1061(c)(4)(B) that would allow taxpayers to recharacterize what would be API Gains under these proposed regulations as Capital Interest Gains. Although a recapitalization or a division may be treated as a section 721 contribution, these transactions would not have the effect of recharacterizing API Gains and Losses as Capital Interest Gains and Losses under these proposed regulations. The section 1061 statutory language does not support this position and the Treasury Department and the IRS do not believe it to be a reasonable interpretation of the statute.
Section 1061(b) provides that to the extent provided by the Secretary, section 1061(a) shall not apply to income or gain attributable to any asset not held for portfolio investment on behalf of third party investors. The proposed regulations reserve with respect to the application of section 1061(b). A third party investor is defined in section 1061(c)(5) as a person who holds an interest in the partnership which does not constitute property held in connection with an applicable ATB; and who does not provide substantial services for such partnership or for any applicable trade or business. Comments have suggested that the exception is intended to apply to family offices, that is, portfolio investments made on behalf of the service providers and persons related to the services providers. The Treasury Department and the IRS generally agree with these comments and believe that the section 1061(b) exception effectively is implemented in the proposed regulations with the exception to section 1061 for Passthrough Interest Direct Investment Allocations. The Treasury Department and the IRS request comments on the application of this provision and whether the proposed regulations' exclusion for Passthrough Interest Direct Investment Allocations properly implements the exception.
The proposed regulations add an exception for unrelated taxpayers who purchase an API. The proposed regulations provide that an interest in a partnership that would be treated as an API but is purchased by an unrelated buyer for the fair market value of the interest is not an API with respect to the
As noted in section I of this Explanation of Provisions, under the proposed regulations, the amount an Owner Taxpayer must treat as short-term capital gain under section 1061(a) is called the Recharacterization Amount. The Recharacterization Amount is the amount by which the Owner Taxpayer's
Each Passthrough Entity must calculate an API One Year Distributive Share Amount for each API Holder that directly holds an interest in the Passthrough Entity for the taxable year. Under the proposed regulations, all long-term capital gain and loss allocated to the API Holder by the Passthrough Entity are API Gains and Losses to the API Holder unless an exception applies.
If the Passthrough Entity is a partnership, the Passthrough Entity determines its API One Year Distributive Share Amount in a series of steps. First, the partnership determines the long-term capital gains and losses that are allocated to the API Holder under the partnership agreement under sections 702 and 704. This amount includes long-term capital gains and losses from the taxable disposition of Distributed API Property by the partnership that was distributed to it from a lower-tier entity. Second, the partnership reduces this amount by amounts that are not taken into account under these proposed regulations for purposes of calculating the Recharacterization Amount. As discussed in section III.E of this Explanation of Provisions, section 1231 amounts, section 1256 amounts, and qualified dividends are excluded from the calculation of the Recharacterization Amount and are not included in the API One Year Distributive Share amount. The same is true for the API Holder Transition Amount, which is also discussed in section III.E of this Explanation of Provisions, and for long-term capital gain or loss from the disposition of property that was once Distributed API Property but that has ceased to be Distributed API property because it was disposed of when the asset had a holding period that was more than three years. Third, the partnership reduces the amount determined under the second step by any amounts that are treated as Capital Interest Gains and Losses under § 1.1061-3(c). The resulting amount is the API Holder's One Year Distributive Share Amount and the partnership must report this amount to the API Holder as its API One Year Distributive Share Amount under § 1.1061-6. Additionally, under § 1.1061-6, the partnership must report to the API Holder the amount of Capital Interest Gains and Losses and API Holder Transition Amounts that have been allocated to the API Holder for the calendar year.
An API One Year Distributive Share Amount must also be calculated by an S corporation that holds an API for each direct API Holder in the S corporation. In this case, the S corporation must report to each API Holder its pro rata share of the API Gains and Losses allocated to the S corporation with respect to its API. Such amounts also may be calculated and reported by a PFIC with respect to which the shareholder has a QEF election in effect.
Under the proposed regulations, the API Three Year Distributive Share Amount is equal to an API Holder's One Year Distributive Share Amount less amounts that would not be treated as long-term capital gain and loss if such amount were computed by applying paragraphs (3) and (4) of section 1222 and substituting three years for one year in those paragraphs. In addition, if the Passthrough Entity sold an API during the taxable year and the Lookthrough Rule applies, the API Holder's One Year Distributive Share Amount is further reduced by the adjustment required by the Lookthrough Rule as described in section III.E of this Explanation of Provisions. These amounts must be calculated by the Passthrough Entity and reported to the API Holder under § 1.1061-6.
The API One Year Disposition Amount includes the long-term capital gains and losses that the Owner Taxpayer recognizes from the direct taxable disposition of an API, including gain or loss under sections 731(a) and 752(b), that has been held for more than one year. The API One Year Disposition Amount also includes long-term capital gain or loss recognized on the disposition of Distributed API Property by an Owner Taxpayer. The API Three Year Disposition Amount includes only the long-term capital gain or loss from the direct taxable disposition of an API held by the Owner Taxpayer for more than three years. However, if the Lookthrough Rule, as described in § 1.1061-4(b)(9) and discussed further in section III.E.7 of this Explanation of Provisions, applies, the API Three year Disposition Amount is further reduced by the adjustment required by the Lookthrough Rule.
Section 751(b) provides that in the case of certain disproportionate distributions, a partner may be treated as engaging in a sale or exchange of property with the partnership. To the extent that such an exchange results in long-term capital gain with respect to an API under section 751(b), it is included in the One Year Disposition Amount and additionally, if appropriate, amounts may be included in the Three Year Disposition Amount.
In determining the One Year Gain Amount and Three Year Gain Amount, all amounts are netted at the Owner Taxpayer level. If an Owner Taxpayer holds more than one API, the Owner Taxpayer combines and nets its API Distributive Share Amounts from each API that it held during the taxable year
This section discusses general rules included in the proposed regulations for calculating the One Year Gain Amount and Three Year Gain Amount.
Section 1061(a) applies to assets that produce capital gains or losses that are treated as long-term capital gain under paragraphs (3) and (4) of section 1222. Section 1231 gains and losses are treated as long-term based on the operation of section 1231, and not by reference to paragraphs (3) and (4) of section 1222. Similarly, section 1256 provides for specific character treatment and does not calculate gain by reference to section 1222. Accordingly, the proposed regulations provide that long-term capital gains determined under section 1231 or section 1256 are excluded from both the One Year and Three Year Gain Amounts. For similar reasons, amounts treated as qualified dividends under section 1(h)(11) and any capital gain that is characterized as long term or short term without regard to the holding period rules in section 1222, such as capital gains characterized under the identified mixed straddle rules described in section 1092(b) and §§ 1.1092(b)-3T, 1.1092(b)-4T, and 1.1092(b)-6, are also excluded.
As described in the discussion of Capital Interest Gains and Losses, section 1061(c)(4) provides an exception with respect to certain capital interests. Prior to the enactment of section 1061, taxpayers had no reason to track what portion of the unrealized appreciation in partnership assets was attributable to capital interests. Therefore, the Treasury Department and the IRS are aware that partnerships may not have information readily available to enable them to comply with these regulations with respect to property that the partnership held for more than three years as of the effective date of section 1061. Accordingly, the proposed regulations provide a transition rule for partnership property that was held by the partnership for more than three years as of the effective date of section 1061. Under these proposed regulations, a partnership that was in existence as of January 1, 2018 may irrevocably elect to treat all long-term capital gains and losses from the disposition of all assets, regardless of whether they would be API Gains or Losses in prior periods, that were held by the partnership for more than three years as of January 1, 2018 as
For amounts to be treated as Partnership Transition Amounts, the partnership must make a signed and dated election (election statement) by the due date, including extensions, of the Form 1065, “U.S. Return of Partnership Income,” for the first partnership taxable year in which it treats amounts as Partnership Transition Amounts. The election statement must be identified as an election under § 1.1061-4(b)(7)(iii) and filed with the IRS as an attachment to the Form 1065 filed for the partnership's taxable year in which it is making the election. By the due date of the election, the partnership must clearly and specifically identify all of the assets held by the partnership for more than three years as of January 1, 2018 in the partnership's books and records. The election applies to the year for which the election is made and all subsequent years. Taxpayers may rely on these proposed regulations to make the election for taxable years beginning in 2020 or in a later year before the final regulations apply.
As noted above, Partnership Transition Amounts that are allocated to the API Holder are called API Holder Transition Amounts under the proposed regulations. The API Holder Transition Amount in any year is the amount of the Partnership Transition Amount for the year that is included in the amount of long-term capital gains and losses allocated to the API Holder under sections 702 and 704 with respect to its interest in the partnership under the current partnership agreement. However, the amount allocated to the API Holder in any taxable year under the preceding sentence cannot exceed the amount of the Partnership Transition Amount that would have been allocated to the API Holder with respect to its partnership interest under the partnership agreement for the 2017 taxable year to the extent it was amended on or before March 15, 2018. The partnership must retain an executed copy of the partnership agreement in effect for the 2017 taxable year to the extent amended on or before March 15, 2018 as part of its books and records.
A Passthrough Entity that receives an allocation of API Holder Transition Amounts from a lower-tier entity cannot allocate more of the Passthrough Entity's API Holder Transition Amount to the Passthrough Entity's direct API Holders than the amount of Partnership Transition Amounts the API Holders would have been allocated by the Passthrough Entity under the Passthrough Entity's governing documents in effect for the calendar year ending December 31, 2017 to the extent amended on or before March 15, 2018. Further, the amount allocated to the Passthrough Entity's direct API Holders cannot exceed the amount of the Passthrough Entity's API Holder Transition Amounts the Passthrough Entity was allocated by the lower-tier Passthrough Entity.
Unlike other provisions of the proposed regulations, API Holders and Passthrough Entities may elect and treat amounts as Partnership Transition Amounts and API Holder Transition Amounts for taxable years beginning in 2020 or a later taxable year without following all of the provisions of the proposed regulations provided that the partnership consistently treats long-term capital gains and losses from identified assets as Partnership Transition Amounts and API Holder Transition Amounts for the year in which the election is made and all subsequent taxable years beginning before the final regulations are published in the
The proposed regulations provide that the Owner Taxpayer's One Year Gain
This rule is consistent with the manner in which installment sales are treated under existing law.
Section 852(b)(3)(C)(i) provides generally that a RIC capital gain dividend is any dividend, or part thereof, which is reported by the RIC as a capital gain dividend in written statements furnished to its shareholders. Similarly, section 857(b)(3)(B) provides generally that a REIT capital gain dividend is any dividend, or part thereof, which is designated by the REIT as a capital gain dividend in a written notice mailed to its shareholders. The aggregate amount of capital gain dividends paid by a RIC or REIT for a taxable year, however, may not exceed the net capital gain of the RIC or REIT for that taxable year.
Section 852(b)(3)(B) provides that a RIC capital gain dividend shall be treated by the shareholders as a gain from the sale or exchange of a capital asset held for more than one year. Similarly, section 857(b)(3)(A) provides that a REIT capital gain dividend shall be treated by the shareholders as a gain from the sale or exchange of a capital asset held for more than one year.
The Treasury Department and the IRS are aware that taxpayers are concerned that section 1061(a)(2) might be read to prevent RIC and REIT capital gain dividends received by partnerships from being treated as long-term capital gains by taxpayers that hold APIs in those partnerships. Specifically, taxpayers are concerned that these dividends may not meet the three-year holding period requirement under section 1061(a) because of the specification in sections 852(b)(3)(B) and 857(b)(3)(A) that these dividends are treated as a gain from the sale or exchange of a capital asset held for more than one year. The Treasury Department and the IRS agree that long-term capital gain treatment should be available to the extent that the capital gain dividend is attributable to capital assets held for more than three years or is attributable to assets that are not subject to section 1061.
The proposed regulations address this issue by allowing a RIC or REIT to disclose two additional amounts for purposes of section 1061. The two additional amounts to be disclosed are based on modified computations of the RIC's or REIT's net capital gain. First, the RIC or REIT may disclose the amount of the capital gain dividend that is attributable to the RIC's or REIT's net capital gain excluding any amounts not taken into account for purposes of section 1061 under § 1.1061-4(b)(6) from the computation. Second, the RIC or REIT may disclose the amount of the capital gain dividend that is attributable to the RIC's or REIT's net capital gain both (1) excluding any amounts not taken into account for purposes of section 1061 under § 1.1061-4(b)(6) from the computation, and (2) substituting three years for one year in applying section 1222. The proposed regulations allow a RIC or REIT to disclose these two additional amounts in writing to its shareholders with its section 852(b)(3)(C)(i) capital gain dividend statement or section 857(b)(3)(B) capital gain dividend notice.
The proposed regulations provide that partnerships that receive either or both of these additional capital gain dividend disclosures from a RIC or REIT must use each additional disclosed amount in calculating API distributive share amounts. The first additional disclosed amount is used for the calculation of an API One Year Distributive Share Amount. The second additional disclosed amount is used for the calculation of an API Three Year Distributive Share Amount. However, the proposed regulations provide that the full amount of the RIC's or REIT's capital gain dividend must be used for the calculation of an API One Year Distributive Share Amount if the first additional amount is not disclosed, and no amount of the RIC's or REIT's capital gain dividend may be used for the calculation of an API Three Year Distributive Share Amount if the second additional amount is not disclosed.
To prevent the avoidance of section 1061, the proposed regulations also provide that each of the two additional disclosed amounts provided to each shareholder of a RIC or REIT must be proportionate to the share of capital gain dividends reported or designated to that shareholder for the taxable year.
Additionally, in accordance with sections 852(b)(4) and 857(b)(8), the proposed regulations provide that with respect to any shares of RIC or REIT stock with respect to which a partnership receives a capital gain dividend distribution and the second additional disclosed amount that is used to calculate the API Three Year Distributive Share Amount, any loss on the sale or exchange of such shares held for less than six months will be treated as capital loss on assets held for more than three years to the extent of the second additional disclosed amount that is included in the calculation of an API Three Year Distributive Share Amount.
Generally, the distribution of property with respect to an API does not accelerate the recognition of gain under section 1061 or these proposed regulations. However, if Distributed API Property is disposed of by the distributee-partner when the holding period is three years or less (inclusive of the partnership's holding period), gain or loss with respect to the disposition is API Gain or Loss. Distributed API Property retains its character as it is passed from one tier to the next. However, at the time that Distributed API Property is held for more than three years, it loses its character and is no longer Distributed API Property. If Distributed API Property is distributed from one Passthrough Entity to another and the upper-tier entity disposes of the property, the long-term capital gain or loss is included in the upper-tier entity's long-term capital gain or loss as API Gain or Loss. If the property is distributed to an Owner Taxpayer and the Owner Taxpayer disposes of the property, the capital gain or loss is included in the Owner Taxpayer's API One Year Disposition Gain or Loss. This rule is necessary to prevent the avoidance of section 1061 because,
The Treasury Department and the IRS considered different approaches to the holding period rules. As one commentator pointed out, there are a number of different approaches that can be considered. These approaches include: (1) Using the holding period of the owner of the asset sold (whether the asset disposed of is the API itself or is an underlying capital asset held by the partnership); (2) using the Owner Taxpayer's holding period in its interest; (3) using the partnership's holding period in its assets; or (4) using the lesser of the holding period of the partnership in the assets or the Owner Taxpayer's holding period in the interest. If the holding period of the owner of the asset applies, then the partnership's holding period in the asset or the partner's holding period in the API applies (whichever is disposed of).
The proposed regulations adopt the approach that the holding period of the owner of the asset sold controls. The Treasury Department and the IRS have adopted this approach because it is the approach most consistent with subchapter K of chapter 1 of the Code and the intended application of section 1061. Additionally, this approach is also the most administrable for taxpayers and the government.
To this end, the proposed regulations provide that if a partnership disposes of an asset, it is the partnership's holding period in the asset that controls. This includes the disposition of an API by the partnership. This result is consistent with the application of section 702(b) and Revenue Ruling 68-79 (1968-1 C.B. 310) which ruled that when a partnership sells a capital asset held by the partnership for over 6 months (the then-required holding period for long-term capital gains), a new partner takes into account his distributive share of gain from the sale as long-term capital gain notwithstanding that the partner has not held its interest in the partnership long enough to qualify for long-term capital gain treatment if the partnership interest itself had been sold.
Section 741 provides that gain or loss on the sale of a partnership interest is considered as gain or loss from the sale or exchange of a capital asset except as otherwise provided in section 751. Therefore, the sale of a partnership interest generally follows an entity approach, as opposed to an aggregate approach. Following this approach, the proposed regulations provide that, except to the extent that the Lookthrough Rule described in § 1.1061-4(b)(9) and section III.E.7 of this Explanation of Provisions, applies, the holding period that an API Holder has in an API is the applicable holding period upon the disposition of an API.
The proposed regulations also provide that for purposes of computing the Three Year Gain Amount, the relevant holding period of either an asset or an API is determined under all provisions of the Code or regulations that are relevant to determining whether an asset or API has been held for the long-term holding period by applying those provisions as if the applicable holding period were three years instead of one year.
These proposed regulations also amend § 1.1223-3 to clarify how to calculate the holding period of an API when the API comprises a portion of the partnership interest and the partnership interest has a divided holding period under § 1.1223-3. This clarification applies to the calculation of all profits interests and all APIs. Section 1.1223-3(a) provides that a partnership has a divided holding period if portions of the interest are acquired at different times or the partner acquired portions of the partnership interest in exchange for property transferred at the same time but resulting in different holding periods. The general rule in § 1.1223-3(b)(1) is that the portion of the interest to which the holding period relates is determined by reference to a fraction, the numerator of which is the fair market value of the portion of the partnership interest received in the transaction to which the holding period relates, and the denominator of which is the fair market value of the entire partnership interest determined immediately after the acquisition transaction. In the case of the portion of a partnership interest that is comprised in part by one or more APIs or profits interests, the proposed regulations clarify the timing of this determination as to that portion to the time immediately before the disposition (as compared to the acquisition) of all or a part of the interest. Accordingly, in the case of a partnership interest that has a divided holding period and the partnership interest includes a profits interests, the relative fair market of the profits interest is determined at the time of the interest's disposition (or partial disposition). The holding period of the portion of the interest that does not include the profits interest continues to be determined under § 1.1223-3(b)(1). No inference is intended with respect to the valuation of a profits interest that fails to meet the safe harbor under Revenue Procedure 93-27 (as clarified in Revenue Procedure 2001-43).
Generally, these proposed regulations do not look through a partnership to its assets on the sale of a partnership interest. However, the proposed regulations include a limited Lookthrough Rule that may apply to the sale of an API with a holding period of more than three years for capital gain. In the case of a disposition of a directly held API with a holding period of more than three years, the Lookthrough Rule applies if the assets of the partnership in which the API is held meet the Substantially All Test. In the case of a tiered structure in which an API Holder holds its API through one or more Passthrough Entities, the Lookthrough Rule applies if the API Holder disposes of a Passthrough Interest held for more than three years for a gain and either the Passthrough Entity through which the API is directly or indirectly held has a holding period in the API that is three years or less, or the Passthrough Entity through which the API is held has a holding period in the API of more than three years and the assets of the partnership in which the API is held meet the Substantially All Test. The Lookthrough Rule does not apply to the disposition of an API if section 1061(d) applies.
The Substantially All Test is met if 80 percent or more of the assets of the partnership in which the API is held, based on fair market value, are assets that would produce capital gain or loss that is not described in § 1.1061-4(b)(6) if disposed of by the partnership and have a holding period of three years or less. The determination of whether the substantially all test is met is made by expressing the value of a fraction as a percentage. The numerator of the fraction is equal to the aggregate fair market value of the partnership's assets that would produce capital gain or loss that is not described in § 1.1061-4(b)(6) if disposed of by the partnership and that have a holding period of three years or less to the partnership as of the date of disposition of the API. The denominator is equal to the aggregate fair market value of the partnership's assets. Cash, cash equivalents, unrealized receivables under section 751(c), and inventory items under section 751(d) are not taken into account for purposes of the Substantially All Test.
In the case of a disposition of an API by an API Holder that is an Owner Taxpayer, all of the long-term capital gain recognized on the disposition is included in the API One Year Disposition Amount. The amount included in the API Three Year Disposition Amount with respect to the disposition is the amount included in the API One Year Disposition Amount reduced by any adjustment amount required by the Lookthrough Rule. In the case of a disposition of an API by an API Holder that is a Passthrough Entity to which the Lookthrough Rule applies, the long-term capital gain recognized on the sale is included in the API One Year Distributive Share Amount calculated for the API Holders of the Passthrough Entity. Section 1.1061-4(a)(3) provides that the API Three Year Distributive Share Amount is reduced by the adjustment amount required by the Lookthrough Rule. The adjustment amount required by the Lookthrough Rule is either the capital gain recognized on the disposition of the API that is attributable to the assets whose fair market value is included in the numerator of the fraction used for the Substantially All Test, or, in the case of an API indirectly held through a Passthrough Entity for three years or less, the gain attributable to the API.
Under section 1061(d), if a taxpayer transfers an API to a related person described in section 1061(d)(2) in a transfer that would not otherwise be a taxable event, the taxpayer must include certain capital gain in gross income as short-term capital gain. The amount of gain required to be included as short-term capital gain is the excess of the net built-in long-term capital gain in assets held for three years or less attributable to the transferred interest, over the amount of long-term capital gain recognized on the transfer that is treated as short term capital gain under section 1061(a). If the transfer is otherwise taxable, section 1061(d) recharacterizes all or a portion of the capital gain otherwise recognized on the transfer as short-term capital gain. If the amount of capital gain otherwise recognized by the taxpayer on a taxable transfer is less than the amount required to be included under section 1061(d), the taxpayer must include the difference as short-term capital gain under section 1061(d). The proposed regulations refer to a related person described in section 1061(d)(2) as a
One commentator suggested that the Treasury Department and the IRS suspend the application of section 1061(d) until Congress clarifies its application. The Treasury Department and the IRS do not believe a suspension is necessary. Rather, the Treasury Department and the IRS interpret section 1061(d)(1) to require that gain equal to the amount described in that section be recognized and included in income as short-term capital gain on the transfer of an API to a Section 1061(d) Related Person even if the transfer is not a transaction in which gain is otherwise recognized under the Code. The term transfer under the proposed regulations includes, but is not limited to, contributions, distributions, sales and exchanges, and gifts.
Section 1061(d)(2) defines a related person to be a member of the taxpayer's family within the meaning of section 318(a)(1) or a person who performed a service within the current calendar year or the preceding three calendar years in any ATB in which or for which the taxpayer performed a service. The Conference Report describes a Section 1061(d) Related Person as a family member or colleague (or recent former colleague). Conference Report at 422. For these purposes, a taxpayer is the same taxpayer used for computation purposes (as opposed to the taxpayer used for determining whether the elements of an API are met), that is, an Owner Taxpayer. The proposed regulations clarify that for a service provider to be treated as a Section 1061(d) Related Person, the service provider must provide services or have provided services in the same ATB to which the transferred API relates, that is, in the Relevant ATB. The proposed regulations also include within the definition of Section 1061(d) Related Person any Passthrough Entity to the extent that a Section 1061(d) Related Person holds an interest. The Treasury Department and the IRS request comments on how to calculate section 1061(d) gain when a Passthrough Entity is only partially a Related Person.
The proposed regulations provide that a contribution under section 721(a) to a partnership is not treated as a transfer to a Section 1061(d) Related Person because the proposed regulations require that under the principles of section 704(c) and §§ 1.704-1(b)(2)(iv)(f) and 1.704-3(a)(9) all Unrealized API Gains that would be directly or indirectly allocated to the API Holder at the time of contribution must be allocated to the API Holder contributing the interest when they are recognized. The Treasury Department and the IRS request comments on transfers other than section 721(a) contributions that satisfy the foregoing standard and that therefore should be excluded from section 1061(d).
The proposed regulations use the term “person” as the term is generally used under section 7701(a)(1). Section 7701(a)(1) defines “person” to include an individual, trust, estate, partnership, association, company, or corporation. Under the section 7701(a)(1) definition of person, for example, a management company could qualify as a related person under section 1061(d)(2) because the management company would have performed a service in the same ATB in which the taxpayer had performed a service in the three years preceding the transfer.
Section 1061(d)(1) requires the taxpayer to include as short-term capital gain the excess of the taxpayer's long-term capital gain with respect to such interest for such taxable year attributable to the sale or exchange of any asset held for not more than three years as is allocable to such interest over any amount treated as short-term capital gain with respect to the transfer of the interest under section 1061(a).
The proposed regulations provide that the long-term capital gain with respect to the transferred API attributable to the sale or exchange of any asset held not more than three years is the long-term capital gain that would be allocated to the transferred API if, immediately before the transfer, the partnership that issued the API had sold all of its assets held for three years or less for fair market value in a hypothetical sale. If the result is negative, the result is deemed to be zero and section 1061(d) does not apply.
The proposed regulations provide that if the basis of the transferred API in the transferee's hands is determined in whole or in part by the basis of the API in the transferor's hands before application of section 1061(d), then the basis of the transferred API shall be increased (before the application of section 1015(d), if applicable) by the capital gain included in gross income by the transferor solely by reason of section 1061(d). If an Owner Taxpayer transfers only a portion of an API, section 1061(d) applies only to the portion transferred.
The proposed regulations include an amendment to § 1.704-3(e)(3). Section 1.704-3(e)(3)(i) provides that for purposes of making reverse section
These proposed regulations provide that an Owner Taxpayer must report any information the Commissioner may require in forms, instructions or other guidance to evidence the taxpayer's compliance with section 1061. Under the proposed regulations, a Passthrough Entity in which an Owner Taxpayer holds its interest is required to provide the information needed by the Owner Taxpayer to comply with section 1061 and to determine its Recharacterization Amount. The Passthrough Entity is required to provide the Owner Taxpayer with the API One Year Distributive Share Amount and the API Three Year Distributive Share Amount. Additionally, the Passthrough Entity must provide the Owner Taxpayer with the adjustments that must be made to the Owner Taxpayer's distributive share of long-term capital gain or loss that would allow the Owner Taxpayer to independently calculate its API One Year Distributive Share Amount and its API Three Year Distributive Share amount. Consistent with § 1.6001-1(a) and (e), if an Owner Taxpayer is not furnished its API One Year Distributive Share Amount, the IRS will treat the amount of the adjustments necessary to independently calculate the API One Year Distributive Share as zero and will also treat the API Three Year Distributive Share as zero to the extent information is not provided to the Owner Taxpayer and the Owner Taxpayer is not able to otherwise substantiate all or a part of those amounts to the satisfaction of the Secretary. For example, if the Owner Taxpayer is not furnished its API One Year Distributive Share Amount, the IRS will not take into account amounts that are excluded from section 1061 under § 1.1061-1(b)(6) unless the Owner Taxpayer is furnished information regarding this amount or the Owner Taxpayer is otherwise able to substantiate this amount. Similarly, if the Owner Taxpayer is not furnished its API Three Year Distributive Share Amount, to the extent that the Owner Taxpayer is also not furnished information regarding items that are not treated as long term capital gain or loss if paragraphs (3) and (4) of section 1222 required a three year holding period for long-term capital gain treatment, the IRS will treat the API Three Year Distributive Share Amount as zero if the taxpayer cannot otherwise substantiate this amount. An Owner Taxpayer that takes a position that is inconsistent with the information provided to it by a Passthrough Entity may have to attach Form 8082, “Notice of Inconsistent Treatment or Administrative Adjustment Request (AAR),” to its federal income tax return.
A Passthrough Entity that has an API Holder must report information to the API Holder to enable the API Holder to comply with the regulations under section 1061 as the Commissioner may require in forms, instructions, or other guidance. It is contemplated that the Passthrough Entity generally will be required to provide this information as an attachment to the Schedule K-1 furnished to the API Holder for the taxable year. The proposed regulations provide that this information includes (i) the API One Year Distributive Share Amount and the API Three Year Distributive Share Amount; (ii) long-term capital gains and losses allocated to the API Holder that are excluded from section 1061 under § 1.1061-4(b)(6); (iii) Capital Interest Gains and Losses allocated to the API Holder; (iv) API Holder Transition Amounts; and (v) in the case of a disposition by an API Holder of an interest in the Passthrough Entity during the taxable year, any information required by the API Holder to properly take the disposition into account under section 1061, including information regarding the application of Lookthrough Rule and information necessary to determine its Capital Interest Disposition Amount. Penalties will apply to a Passthrough Entity that fails to comply with the reporting rules in these proposed regulations and as further required in forms, instructions or other guidance.
A Passthrough Entity that holds an interest in a lower-tier entity may need information from the lower-tier entity to meet its reporting obligations under the proposed regulations. In this case, the Passthrough Entity must request information from any lower-tier entities in which it owns an interest by the later of the 30th day of the close of the calendar year or within 14 days after having received a request for information from an API Holder. The lower-tier entity must respond by the due date (including extensions) of the Schedule K-1 for the taxable year. The proposed regulations provide guidance regarding an upper-tier Passthrough Entity's reporting requirements if the lower-tier Passthrough Entity fails to report the required information to the upper-tier Passthrough Entity.
The proposed regulations generally provide that the final regulations apply to taxable years of Owner Taxpayers and Passthrough Entities beginning on or after the date final regulations are published in the
As indicated in section 4 of Notice 2018-18, proposed § 1.1061-3(b)(2)(i), which provides that the term corporation does not include an S corporation, is proposed to apply to taxable years beginning after December 31, 2017.
With respect to an API in a partnership with a fiscal year ending after December 31, 2017, section 706 determines the capital gains and losses the Owner Taxpayer includes in income with respect to an API after December 31, 2017. Section 706 provides that the taxable income of a partner for a taxable year includes amounts required by sections 702 and section 707(c) with respect to a partnership based on the income, gain, loss, deduction, or credit of a partnership for any taxable year ending within or with the taxable year of the partner. Accordingly, if a calendar year Owner Taxpayer has an API in a fiscal year partnership that has a year end after December 31, 2017, section 1061 applies to the Owner Taxpayer's distributive share of long-term capital gain or loss with respect to the API in calendar year 2018 regardless of whether the partnership disposed of the property giving rise to the gains and losses in the period prior to January 1, 2018.
Comments are requested on whether a simplified method for determining and calculating the API gain or loss should be provided for smaller partnerships and if so, the criteria that should be used to determine which partnerships should be eligible to use the simplified method. These comments should include comments and suggestions for a simplified method.
Executive Orders 13771, 13563, and 12866 direct agencies to assess 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. The Executive Order 13771 designation for any final rule resulting from these proposed regulations will be informed by comments received. The preliminary Executive Order 13771 designation for this proposed rule is regulatory.
The proposed regulations have been designated by the Office of Information and Regulatory Affairs (OIRA) as subject to review under Executive Order 12866 pursuant to the Memorandum of Agreement (MOA, April 11, 2018) between the Treasury Department and the Office of Management and Budget regarding review of tax regulations. It has been determined that the proposed rulemaking is significant under section 1(b) of the Memorandum of Agreement and thereby subject to review. Accordingly, the proposed regulations have been reviewed by OMB.
Section 1061 of the Internal Revenue Code, enacted by the TCJA, recharacterizes certain long-term capital gains recognized with respect to an API as short-term capital gains. Short-term capital gains are taxed at the ordinary income rate whereas long-term capital gains are generally taxed at a lower rate.
Section 1061 defines an API as an interest in a partnership transferred to or held by the taxpayer in connection with the performance of substantial services by the taxpayer, or any other related person, in any ATB. Under section 1061 the term ATB encompasses a range of financial service activities. Specifically, an ATB is any activity conducted on a regular, continuous, and substantial basis which consists, in whole or in part, of raising or returning capital, and either (i) investing in (or disposing of) “specified assets” (or identifying specified assets for such investing or disposition), or (ii) developing specified assets. “Specified assets” are certain securities, certain commodities, real estate held for rental or investment, cash or cash equivalents, options or derivative contracts with respect to any of the foregoing, and an interest in a partnership to the extent of the partnership's proportionate interest in any of the foregoing.
Prior to the TCJA, the Internal Revenue Code made no distinction between capital gains allocated to APIs versus other partnership interests and partnership assets. Generally, the required holding period to obtain the lower long-term capital gains tax rate was one year for all partnership interests and partnership assets. Under the new provision, the required holding period for an API must be greater than three years to obtain long-term capital gains treatment.
The proposed regulations provide taxpayers with definitional and computational guidance regarding the application of section 1061. In particular, the proposed regulations provide a number of important definitions, including the term `taxpayer' for the purpose of determining the existence of an API. Additionally, the regulations clarify the rules for certain exceptions to section 1061, including the exception for capital interests, and provide for an additional exception for bona fide purchases of APIs by an unrelated party who is not a service provider. The proposed regulations also provide rules for calculating the recharacterized gain amount and provide for a lookthrough rule with respect to the sale of APIs.
The Treasury Department and the IRS have assessed the benefits and costs of the proposed regulations relative to a no-action baseline reflecting anticipated Federal income tax-related behavior in the absence of these proposed regulations.
The proposed regulations provide certainty and consistency in the application of section 1061 by providing definitions and clarifications regarding the statute's terms and rules. An economically efficient tax system generally aims to treat income and expense derived from similar economic decisions consistently across taxpayers and activities in order to reduce incentives for individuals and businesses to make choices based on tax rather than market incentives. In the absence of the guidance provided in these proposed regulations, taxpayers would bear the burden of interpreting
The Treasury Department and the IRS solicit comments on the economic analysis of the proposed regulations. The Treasury Department and the IRS particularly solicit comments that provide data, other evidence, or models that could enhance the rigor of the analysis.
The statute requires taxpayers to make a number of determinations, including the determination of the existence of an API, and the calculation of the section 1061 amount, or amount of long-term gain recharacterized under section 1061. However, the term “taxpayer” is not defined in either section 1061 or in the Conference Report. Comments received by the Treasury Department and IRS highlight the importance of the definition of the term taxpayer for purposes of section 1061.
The proposed regulations include two definitions of taxpayer to address the level at which the determination of the existence of an API is made and the level at which the calculation of the section 1061 amount is made. The proposed regulations define the Owner Taxpayer as the person generally required to pay tax on the gain or loss with respect to the API. Under the proposed regulations, the section 1061 calculation is only performed by the person (the Owner Taxpayer) who must pay tax on the gains and losses recognized with respect to the API. The Treasury Department and the IRS estimate that approximately 22,750 Owner Taxpayers will be required to adjust Schedule D filings. There may be others who meet the definition of Owner Taxpayer but face no burden because they receive no capital gains allocations in relation to their API holdings. The proposed regulations also introduce the term Passthrough Taxpayer. A Passthrough Taxpayer is an entity that does not itself generally pay tax on capital gains but must determine when an API exists and allocate income, gain, deduction and loss to its owners. The Treasury Department and the IRS estimate there are approximately 30,000 Passthrough Taxpayers required to provide information to owner taxpayers who hold an API. Both the Owner Taxpayer and the Passthrough Taxpayer are treated as taxpayers for the purpose of determining whether an API exists.
The Treasury Department and the IRS considered and rejected two alternative approaches to the definition of taxpayer outlined in received comments, the “aggregate approach” and the “full entity approach.” Under the aggregate approach, a partnership is not treated as a taxpayer for purposes of section 1061. Instead, section 1061 is applied solely to the partners that are ultimately subject to tax on the partnership's items of capital gain and loss. A concern with using this approach for the purpose of determining whether an API exists is that it could incentivize partners to use tiered ownership structures to avoid section 1061 recharacterization. For example, an upper tier partnership may receive an interest in a lower-tier fund in connection with the upper-tier partnership's performance of services in an ATB. Partners of the upper-tier partnership may contend that they did not receive their interest in the upper-tier partnership in connection with the services performed by the upper-tier partnership. Stopping such avoidance strategies would require complex rules and potentially burdensome reporting requirements when tiered ownership structures are involved.
Under the “full entity approach”, the partnership is treated as a taxpayer for purposes of both determining the existence of an API and calculating the section 1061 recharacterization amount. Treating the partnership as a taxpayer for purposes of calculating the section 1061 recharacterization amount was found to be more burdensome than the approach taken in the proposed regulations for three reasons. First, using the full entity approach for determining the section 1061 recharacterization amount may lead to increased recharacterization of gains under section 1061 because individuals would not be able to net gains and losses across multiple APIs. Second, the administrative burden on both the taxpayer and the IRS would be increased in cases of tiered ownership. Under the full entity approach, a separate section 1061 calculation would be required at each level at which an API is held in a tiered partnership structure. Finally, the full entity approach may add complexity and burden in cases in which an exception to section 1061 applies, such as if a corporation is a direct or indirect partner. Because corporations are excluded from section 1061, any amount recharacterized at the partnership level would need to be tracked as it is allocated to partners to ensure that corporate or other excepted partners are not subject to the three year holding period under section 1061.
The Treasury and the IRS have concluded that the chosen alternative, incorporating the concepts of Owner Taxpayer and Passthrough Taxpayer, is less burdensome than other alternatives and provides helpful certainty to taxpayers.
The statute states that capital gain or loss recognized by a taxpayer on the sale of an API held for more than one year is subject to section 1061. The statute also provides guidance for ongoing treatment under section 1061 when the API is purchased by, or transferred to, a related party or another service provider. However, the statute does not provide guidance for the taxpayer who purchases an API and is neither a service provider to the relevant ATB, nor related to the seller of the API. The proposed regulations add an exception to section 1061 and provide that the term API does not include an interest in a partnership that would be treated as an API but is held by a bona fide purchaser of the interest who does not currently and has never provided services in the relevant ATB and who is not related to a person who provides services currently or has provided services in the past. By clarifying the treatment of an API that is sold at arm's length, the proposed regulations reduce uncertainty and compliance burdens for
The Treasury Department and the IRS considered not providing this exception. However, it was determined that failure to provide this exception would treat unrelated purchasers of an API in an inequitable fashion, and that continued treatment of the partnership interest as an API is inconsistent with the purpose of section 1061 as unrelated purchasers did not receive their interest in connection with the performance of substantial services. Relative to the no-action baseline, the proposed guidance also provides clarity for taxpayers, improving economic efficiency as discussed in the Summary of Economic Effects.
Section 1061(c)(4)(B) provides that the definition of an API does not include “any capital interest in the partnership which provides the taxpayer with a right to share in partnership capital commensurate with—(i) the amount of capital contributed (determined at the time of receipt of such partnership interest) or (ii) the value of the interest included in income under section 83 upon the receipt or vesting of such interest.” Comments received by the Treasury Department and the IRS identify two sources of ambiguity with regard to this capital interest exception (see footnote 1).
First, there is uncertainty among taxpayers whether unrealized capital gains with respect to an API (unrealized API gains) can be converted to gains that would qualify for the capital interest exception. The proposed regulations clarify that unrealized API gains cannot be converted to gains that qualify for the capital interest exception. In the absence of this regulation, a significant share of taxpayers could potentially avoid section 1061 recharacterization when capital gains with respect to an API are realized if the partnership revalues assets prior to realization, and unrealized API gains are converted to gains that would qualify for the capital interest exception. A majority of owner taxpayers could use this avoidance strategy if it were available. The availability of this avoidance strategy would distort taxpayer behavior, incentivizing complex tiered ownership strategies, and distorting decisions to revalue assets. Furthermore, allowing this avoidance strategy would be contrary to the purposes of section 1061. The statute requires that the Secretary issue such regulations or other guidance as is necessary or appropriate to carry out the purposes of section 1061. Both the Conference Report and the Joint Committee on Taxation's background on 1061, Joint Committee on Taxation, General Explanation of Public Law 115-97 (JCS-1-18) at 125 FN 542 (Dec. 20, 2018), specifically state that the statute requires that the Secretary issue regulations or other guidance to address the prevention of abuse of the purpose of the provision.
Second, the statute does not provide guidance on what it means for a right to share in partnership capital to be “commensurate” with the amount of capital contributed. Comments received by the Treasury Department and the IRS identify this as a source of confusion among taxpayers with respect to section 1061 (see footnote 1). The proposed regulations clarify that allocations are deemed commensurate with capital contributed if they are made with respect to the taxpayer's capital account. The taxpayer's capital account includes realized but undistributed gains on contributed capital, and any contributions to capital made after the interest was received. In the absence of these regulations, taxpayers who have made capital contributions after the interest was initially received, or taxpayers who made a capital contribution that appreciated in value, might face confusion regarding their ability to include the additional contribution when determining the value of their capital interest. Further, partners with realized gains would be incentivized to engage in a series of inefficient transactions, first receiving a distribution reflecting those gains and then contributing the distributed amount back into the partnership in order to minimize tax.
The Treasury Department and the IRS considered alternative interpretations of “commensurate with capital contributed,” including a narrow interpretation of the statute to mean only the value of capital contributed on the date the interest was initially received. However, it was determined that the interpretation presented in the proposed regulations is the only viable interpretation that accurately reflects the value of capital. Therefore, the proposed regulations provide helpful guidance and certainty for taxpayers but are not expected to result in any other economic effects.
Section 1061(a) provides that if one or more APIs are held by a taxpayer at any time during the taxable year, the excess (if any) of (1) the taxpayer's net long-term capital gain with respect to such interests for such taxable year, over (2) the taxpayer's net long-term capital gain with respect to such interests for that taxable year computed by applying paragraphs (3) and (4) of sections 1222 by substituting “3 years” for “1 year,” must be treated as short-term capital gain, notwithstanding section 83 or any election in effect under section 83(b). The House Report explains that section 1061 “imposes a three-year holding period (not the generally applicable one-year holding period) in the case of long-term capital gain from applicable partnership interests.” Neither section 1061 nor the Reports, however, explicitly provides what the relevant holding period is for purposes of section 1061(a) for the sale of an API with assets of different holding periods. Comments received by the Treasury Department and the IRS highlight significant ambiguity, outlining multiple interpretations that would result in different amounts of gain recharacterized by taxpayers (see footnote 1).
Pursuant to its regulatory authority to prevent inappropriate avoidance of section 1061, the proposed regulations include a limited lookthrough rule that is applied to the sale of an API that has been held for more than three years at the time of the disposition. The Lookthrough Rule only applies if 80 percent or more of the value of the assets held by the partnership at the time of the API disposition are assets held for three years or less that would produce capital gain or loss subject to section 1061 if disposed of by the partnership. If the Lookthrough Rule applies, a percentage of the gain or loss on the disposition of the API that is included in the one year disposition amount is not included in the three year disposition amount.
The calculations required by the Lookthrough Rule will impose some additional compliance burden on individual taxpayers selling an API. The rules requiring partnerships to furnish taxpayers with the relevant information to perform the calculations will also impose additional burden on the relevant partnerships. The Treasury Department and the IRS believe only a small fraction of API holders will be affected by these requirements in any year. This rule has limited applicability because it only applies to taxpayers that sell their interest during the taxable year
The Treasury Department and the IRS considered and rejected alternative approaches outlined in received comments, including applying an interest approach with no Lookthrough Rule, and an underlying assets approach. The interest approach with no Lookthrough Rule looks solely to the holding period in the API, regardless of the holding period of the assets held by the partnership that would produce capital gain or loss on disposition. This approach would allow taxpayers to avoid section 1061 characterization for long-term capital gains on assets that are not held for the more than three years by the partnership. This result would encourage distortive behavior in investment funds, which might look to create partnerships for different investors solely for tax purposes. That is, the partners of that investment partnership would not be subject to section 1061 if they had owned their APIs for more than three years, irrespective of how long the investment partnership had held an asset that it sold.
Alternatively, the underlying asset, or full Lookthrough, approach looks solely to the holding period in the underlying asset (or assets) of the partnership, regardless of whether the underlying asset is sold by the partnership or the API is sold by its owner. The proposed regulations only apply the Lookthough Rule if substantially all of the partnership's assets by value are assets held for three years or less and that would produce on disposition capital gain or loss not described in § 1.1061-4(b)(6). The underlying asset approach would be more difficult (and burdensome) for taxpayers to apply as it would require a determination of the unrealized gain for each asset held by the partnership, even in cases in which a relatively small share of assets by value have a holding period of three years or less. We anticipate many taxpayers would be able to avoid burdensome valuation of assets and identification of holding periods under the limited Lookthrough rule but would be required to value each asset under the full Lookthrough rule.
The collection of information contained in this notice of proposed rulemaking is in § 1.1061-4(b)(7) and § 1.1061-6.
The collection of information in proposed § 1.1061-4(b)(7) requires a partnership that chooses to elect to exclude Partnership Transition Amounts from section 1061 to complete a statement making the election and to file the election with its federal tax return for the first taxable year that it treats amounts as Partnership Transition Amounts. It also requires the partnership, by the due date of the election, to clearly and specifically identify in its books and records the assets held by the partnership for more than three years as of the effective date of section 1061. This information is necessary for the IRS to determine whether the partnership has made the election and whether the partnership is correctly reporting capital gains and losses from all of the assets subject to the election.
The partnership is required to attach the election statement to the Form 1065 filed for the partnership for the first taxable year that the partnership treats amounts as partnership transition amounts. For purposes of the Paperwork Reduction Act, the reporting burden associated with filing the election will be reflected in the Paperwork Reduction Act Submissions associated with Form 1065 (OMB 1545-0123).
A partnership that elects to exclude Partnership Transition Amounts must maintain adequate books and records to verify that (i) the partnership's list of identified assets properly includes all assets that it has held for more than three years as of December 31, 2017; (ii) the partnership has treated all capital gains and losses from the sale of the identified assets consistent with proposed § 1.1061-4(b)(7); and, (iii) amounts allocated to API Holders have been determined consistent with § 1.1061-4(b)(7). This collection of information in § 1.1061-4(b)(7) is mandatory for taxpayers seeking to treat certain long-term capital gains as Partnership Transition Amounts. Partnerships seeking to rely on the exception from section 1061 for Partnership Transition Amounts are generally hedge funds and private equity funds that would have held one or more capital assets more than three years as of December 31, 2017. The making a list of assets subject to the election is a one-time requirement. Annually, the partnership must maintain sufficient records to demonstrate that long-term capital gains and losses from the disposition of the identified assets have been treated consistent with the requirements of § 1.1061-4(b)(7) and that API Holder Transition Amounts have been determined as provided in § 1.1061-4(b)(7). The information required to be maintained will be used by the IRS for tax compliance purposes. Estimates with respect to this recordkeeping burden are —
Based on these estimates, the annual three-year reporting burden for those electing to exclude Partnership Transition Amounts from section 1061 is $261.31 (in 2017 dollars).
These estimates are based on the assumption that only a small number of hedge funds would have held assets more than three years as of December 31, 2017. We anticipate that the majority of private equity funds that were in existence for three years as of December 31, 2017 will make the election. Private equity funds that were not in existence as of December 31, 2017 will not need to make the election. Once the election is made, electing funds will have to retain records to evidence compliance with § 1.1061-4(b)(7).
Comments on the collection of information that results from the recordkeeping requirement in § 1.1061-4(b)(7) should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by October 5, 2020.
Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the performance of duties of the IRS,
The accuracy of the burden estimate associated with the proposed collection of information (including underlying assumptions and methodology);
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance and purchase of services to provide information.
The collection of information in proposed § 1.1061-6(a) requires an Owner Taxpayer to file such information with the IRS as the Commissioner may require in forms, instructions and other published guidance as is necessary for the IRS to determine that the taxpayer has properly complied with section 1061 and §§ 1.1061-1 through 1.1061-5 of the proposed regulations. This information is necessary for the IRS to determine that the Owner Taxpayer has properly complied with section 1061. In general, the Owner Taxpayer is an individual and the Owner Taxpayer's Recharacterization Amount will be required to be reported to the IRS as short term capital gain on Schedule D, “Capital Gains and Losses,” of the Form 1040, “U.S. Individual Income Tax Return.” Less frequently, the Owner Taxpayer is a trust and the Owner Taxpayer's Recharacterization Amount will be required to be reported to the IRS as short term capital gain on Schedule D, “Capital Gains and Losses,” of the Form 1041, “U.S. Income Tax Return for Estates and Trusts.”
The current status of the Paperwork Reduction Action submission related to § 1.1061-6(a) is provided in the following table. The burdens associated with the collection of information from the Owner Taxpayer to comply with section 1061 will be included in the aggregate burden estimates for Form 1040 under OMB control number 1545-0074 and Form 1041 under OMB control number 1545-0092. The overall burden estimates provided in OMB Control Number 1545-0074 represents a total estimated burden time, including all other related forms and schedules for individuals, of 1.784 billion hours and total estimated monetized costs of $31.74 billion (in 2017 dollars). The overall burden estimates provided in OMB Control Number 1545-0092 represents a total estimated burden time, including all other forms and schedules for trusts and estates of 307.8 million hours and total estimated monetized costs of $9.95 billion (in 2016 dollars). These amounts are aggregate amounts that relate to all information collections associated with the applicable OMB control numbers, and will in the future include, but not isolate, the estimated burden of Owner Taxpayers as a result of the information collections in the proposed regulations. No burden estimates specific to the proposed regulations are currently available. The Treasury Department and IRS have not estimated the burden, including that of any new information collections, related to the requirements under the proposed regulations. Those estimates would capture both changes made by the TCJA and those that arise out of discretionary authority exercised in the proposed regulations. The Treasury Department and the IRS request comments on all aspects of information collection burdens related to the collection of information applicable to the Owner Taxpayer in the proposed regulations. In addition, when available, drafts of IRS forms are posted for comment at
The collection of information in proposed § 1.1061-6(b) requires a Passthrough Entity that has issued an API to furnish to the API Holder, including the Owner Taxpayer, such information at such time and in such manner as the Commissioner may require in forms, instructions, and other published guidance as is necessary to determine the One Year Gain amount and the Three Year Gain Amount with respect to an Owner Taxpayer. This includes: (i) The API One Year Distributive Share Amount and the API Three Year Distributive Share Amount (as determined under § 1.1061-4); (ii) Capital gains and losses allocated to the API Holder that are excluded from section 1061 under § 1.1061-4(b)(6); (iii) Capital Interest Gains and Losses allocated to the API Holder (as determined under § 1.1061-3(c)); (iv) In the case of a disposition by the API Holder of an interest in the Passthrough Entity during the taxable year, any information required by the API Holder to properly take the disposition into account under section 1061, including information to apply the Lookthrough Rule and to determine its Capital Interest Disposition Amount. The proposed regulations seek to minimize the information that a Passthrough Entity is required to automatically furnish annually. In some cases, an upper tier Passthrough Entity may be an API Holder in a lower tier Passthrough Entity, and the information furnished by the lower tier Passthrough Entity to the upper tier Passthrough Entity may not be sufficient for the upper tier Passthrough Entity to meet its reporting obligations under the regulations. In this case, the proposed regulations require the lower tier Passthrough Entity to furnish information to the upper tier Passthrough Entity if requested. Thus, if an upper tier Passthrough Entity in a tiered entity structure holds an interest in a lower tier Passthrough Entity and it needs information from the lower tier Passthrough Entity to comply with its obligation to furnish information under the proposed regulations, it must request information from the lower tier entity and the lower tier entity must furnish the requested information. This passing of information upon request
Section 1.1061-6(c) permits a RIC or a REIT that reports or designates all or a part of a dividend as a capital gain dividend, to disclose additional information to their shareholders for purposes of section 1061. The furnishing of this information may allow a Passthrough Entity to include a portion of the capital gain dividend in the API Three Year Distributive Share amount furnished to API Holders and may ultimately enable an Owner Taxpayer to reduce its Recharacterization Amount under the proposed regulations.
The collection of information with respect to § 1.1061-6(b) and (c) is provided in the following table. In the case of a Passthrough Entity that is a partnership, the information will be required to be furnished as an attachment to the Schedule K-1, “Partner's Share of Income, Deduction, Credit, Etc.” of Form 1065, “U.S. Return of Partnership Income.” In the case of a Passthrough Entity that is an S corporation, the information will be required to be furnished as an attachment to the Schedule K-1, “Shareholder's Share of Income, Deductions, Credit, Etc.,” of Form 1120-S, “U.S. Income Tax Return for an S Corporation.” The burdens associated with the collection of information from the Passthrough Entities will be included in the aggregate burden estimates for the Form 1065 and the Form 1120S under OMB control number 1545-0123. The overall burden estimates provided in OMB Control Number 1545-0123 represents a total estimated burden time, including all others related forms and schedules, of 3.157 billion hours and total estimated monetized costs of $58.148 billion (in 2017 dollars). The burden estimates provided in OMB Control Number 1545-0123 are aggregate amounts that relate to all information collections associated with the applicable OMB control number, and will in the future include, but not isolate, the Passthrough Entities' estimated burden as a result of the information collections in the proposed regulations.
In the case of RICs and REITs the information will be furnished in connection with the Form 1099-DIV, “Dividends and Distributions.” The burden estimates associated with the collection of information from RICs and REITs will be included in the aggregate burden estimated for the Form 1099-DIV under OMB Control Number 1545-0110. The overall burden estimates provided in OMB Control Number 1545-0110 represents a total estimated burden time of 32,119,195 hours and total estimated monetized costs of $1.64 billion (in 2016 dollars). The burden estimates provided in OMB Control Number 1545-0110 relate to all information collections associated with the applicable OMB Control Number, and will in the future include, but not isolate, the RIC and REIT estimated burden as a result of the information collections in the proposed regulations.
With the exception of the burden estimate provided with respect to the recordkeeping requirement related to the Partnership Transition amount election in § 1.1061-4(b)(7), no burden estimates specific to the proposed regulations are currently available. The Treasury Department and IRS have not estimated the burden, including that of any new information collections, related to the requirements under the proposed regulations. Those estimates would capture both changes made by the TCJA and those that arise out of the discretionary authority exercised in the proposed regulations. The Treasury Department and the IRS request comments on all aspects of information collection burdens related to the collection of information applicable to the Passthrough Entities in the proposed regulations. In addition, when available, drafts of IRS Forms and the applicable instructions are posted for comment at
The following chart shows the estimated number of returns that are expected to have attachments providing additional information with respect to section 1061. As noted above, Owner Taxpayers will be required to provide section 1061 information on an attachment to Schedules D for Forms 1040 and 1041. Passthrough Taxpayers will be required to report section 1061 on Forms 1065 and 1120S to the IRS and to furnish information to their API Holders on attachments to the respective K-1s. RICs and REITs may voluntarily report additional information at an attachment to Form 1099-DIV.
Section 1.1061-6(d) permits a PFIC with respect to which the shareholder is an API Holder who has a QEF election is in effect for the taxable year to provide additional information to the shareholder to determine the amount of the shareholder's inclusion that would be included in the API One Year Distributive Share Amount and the API Three Year Distributive Share Amount. If the PFIC furnishes this information to the shareholder, the shareholder must retain a copy of this information along with the other information required to be retained under § 1.1295-1(f)(2)(ii). The burden associated with retaining this additional information will be included in the aggregate burden estimates for § 1.1295-1(f) under OMB Control Number 1545-1555. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
Books and records related to the collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the Regulatory Flexibility Act (5 U.S.C. chapter 6). These regulations generally only impact investment funds that have capital gains and losses that derive from the disposition of assets that have a holding period of more than one year but not more than three years.
Investment funds are considered small business if they have annual average receipts of $41.5 million or less (13 CFR 121). The rule may affect a substantial number of small entities, but data are not readily available to assess how many entities will be affected.
Even if a substantial number of small entities are affected, the economic impact of these regulations on small entities is not likely to be significant. The proposed regulations provide taxpayers with definitional and computational guidance regarding the application of section 1061. The impact of the regulations is to impose an additional reporting obligation that applies only with respect to the sale of assets held for more than one year but not more than three years. The Treasury Department and the IRS recognize that this reporting obligation may increase, at least to some extent, the tax preparation burden for affected taxpayers beyond that imposed by the statute. This reporting obligation generally will only apply to a minority of the asset dispositions by an entity. The entity will also have a reporting obligation in certain circumstances regarding the disposition of an API, but the extent of the reporting obligation depends on the number of assets held by the entity and their holding periods. The information reported is readily available to taxpayers and reported on forms already in use beginning with the 2019 tax year. Finally, some taxpayers may find they need an initial investment of time to read and understand these regulations at an approximate cost of $95/hour and an estimated time of ten hours.
Notwithstanding this certification, the Treasury Department and the IRS invite comments on any impact this rule would have on small entities.
Section 202 of the Unfunded Mandates Reform Act of 1995 requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a state, local, or tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. This rule does not include any Federal mandate that may result in expenditures by state, local, or tribal governments, or by the private sector in excess of that threshold.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on state and local governments, and is not required by statute, or preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Notice 2018-18, 2018-2 I.R.B. 443 (in addition to any other revenue procedures or revenue rulings, etc. cited in this preamble) is published in the Internal Revenue Bulletin (or Cumulative Bulletin) and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at
Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to comments that are submitted timely to the IRS as prescribed in the preamble under the
A public hearing will be scheduled if requested in writing by any person who timely submits electronic or written comments. Requests for a public hearing are also encouraged to be made electronically. If a public hearing is scheduled, notice of the date and time for the public hearing will be published in the
The principal author of these proposed regulations is Kara Altman of the Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Sections 1.1061-0 through 1.1061-6 are added under 26 U.S.C. 1061(f). * * *
(a) * * *
(2) * * * Each partner subject to section 1061 shall take into account gains and losses from sales of capital assets held for more than one year as provided in that section and §§ 1.1061-0 through 1.1061-6.
(g)
The additions and revisions read as follows:
(e) * * *
(3) * * *
(vii)
(B)
(f)
This section lists the captions that appear in §§ 1.1061-1 through 1.1061-6.
(a) Definitions.
(b) Applicability date.
(a) API rules and examples.
(1) Rules.
(i) An API remains as an API.
(ii) Unrealized API Gains and Losses.
(A) Long-term Unrealized API Gains and Losses become API Gains and Losses.
(B) Requirement to determine Unrealized API Gains and Losses.
(iii) API Gains and Losses retain their character.
(iv) Substantial services by the Owner Taxpayer, Passthrough Taxpayer or any Related Person.
(v) Grantor trusts and entities disregarded as separate from their owners.
(2) Examples.
(b) Application of the ATB Activity Test.
(1) In general.
(i) Rules for applying the ATB Activity Test.
(A) Aggregate Specified Actions taken into account.
(B) Raising or Returning Capital Actions and Investing or Developing Actions are not both required to be taken each year.
(C) Combined conduct by multiple related entities taken into account.
(ii) Developing Specified Assets.
(iii) Partnerships.
(2) Examples.
(c) Applicability date.
(a) A partnership interest held by an employee of another entity not conducting an ATB.
(b) Partnership interest held by a corporation.
(1) In general.
(2) Treatment of interests held by an S corporation or a qualified electing fund.
(c) Capital Interest Gains and Losses.
(1) In general.
(2) Capital Interest Gains and Losses Defined.
(3) General rules for determining Capital Interest Allocations and Passthrough Interest Capital Allocations.
(i) Allocations made in the same manner.
(ii) Capital accounts.
(A) In general.
(B) Tiers.
(C) Proceeds of partnership or partner loans not included in capital account.
(iii) Items that are not included in Capital Interest Allocations or Passthrough Interest Capital Allocations.
(4) Capital Interest Allocations.
(5) Passthrough Interest Capital Allocations.
(i) In general.
(ii) Passthrough Capital Allocations.
(iii) Passthrough Interest Direct Investment Allocations.
(6) Capital Interest Disposition Amounts.
(i) In general.
(ii) Determination of the Capital Interest Disposition Amount.
(7) Examples.
(d) Partnership interest acquired by purchase by an unrelated taxpayer.
(1) Taxpayer is not a Related Person.
(2) Section 1061(d) not applicable.
(3) Taxpayer not a service provider.
(e) [Reserved]
(f) Applicability date.
(1) General rule.
(2) Section 1.1061-3(b)(2)(i) exception.
(3) Section 1.1061-3(b)(2)(ii) exception.
(a) Computations.
(1) Recharacterization Amount.
(2) One Year Gain Amount and Three Year Gain Amount.
(i) One Year Gain Amount.
(ii) Three Year Gain Amount.
(3) API One Year Distributive Share Amount and Three Year Distributive Share Amount.
(i) API One Year Distributive Share Amount.
(ii) API Three Year Distributive Share Amount.
(4) API One Year Disposition Amount and Three Year Disposition Amount.
(i) API One Year Disposition Amount.
(ii) API Three Year Disposition Amount.
(b) Special rules for calculating the One Year Gain Amount and the Three Year Gain Amount.
(1) One Year Gain Amount equals zero or less.
(2) Three Year Gain Amount equals zero or less.
(3) Installment sale gain.
(4) Special rules for capital gain dividends from regulated investment companies (RICs) and real estate investment trusts (REITs).
(i) API One Year Distributive Share Amount.
(ii) API Three Year Distributive Share Amount.
(iii) Loss on sale or exchange of stock.
(5) Pro rata share of qualified electing fund (QEF) net capital gain.
(i) One year QEF net capital gain.
(ii) Three year QEF net capital gain.
(6) Items not taken into account for purposes of section 1061.
(7) API Holder Transition Amounts not taken into account.
(i) In general.
(ii) API Holder Transition Amount.
(iii) Partnership Transition Amounts and Partnership Transition Amount Election.
(8) Holding period determination.
(i) Determination of holding period for purposes of Three Year Gain Amount.
(ii) Relevant holding period.
(9) Lookthrough Rule for certain API dispositions.
(i) Determination that the Lookthrough Rule Applies.
(ii) Application of the Lookthrough Rule.
(10) Section 83.
(c) Examples.
(1) Computation examples.
(2) Special rules examples.
(d) Applicability date.
(a) In general.
(b) Transfer.
(c) Application of paragraph (a) of this section.
(1) Determination of amounts included in paragraph (a)(1) of this section.
(2) Application to an otherwise taxable transfer.
(d) Basis of interest increased by additional gain recognized.
(e) Section 1061(d) Related Person.
(1) In general.
(2) Exception.
(f) Examples.
(g) Applicability date.
(a) Owner Taxpayer Filing Requirements.
(b) Passthrough Entity Filing Requirements and Reporting.
(1) Requirement to file information with the IRS and to furnish information to API Holder.
(2) Requirement to request, furnish, and file information in tiered structures.
(i) Requirement to request information.
(ii) Requirement to furnish and file information.
(iii) Timing of requesting and furnishing information.
(iv) Manner of requesting information.
(v) Recordkeeping requirement.
(vi) Passthrough Entity is not Furnished Information to meet its Reporting Obligations under paragraph (b)(1) of this section.
(vii) Penalties.
(c) Regulated investment company (RIC) and real estate investment trust (REIT) reporting.
(1) Section 1061 disclosures.
(i) One Year Amounts Disclosure.
(ii) Three Year Amounts Disclosure.
(2) Pro rata disclosures.
(3) Report to shareholders.
(d) Qualified electing fund (QEF) reporting.
(e) Applicability date.
(a)
(i) The
(ii) The
(iii) The
(iv) The
(v) Capital gains or losses from the disposition of Distributed API Property.
(i) Investing in (or disposing of) Specified Assets (or identifying Specified Assets for such investing or disposition), or
(ii) Developing Specified Assets (see § 1.1061-2(b)(1)(ii)).
(i) Securities, including interests in partnerships qualifying as securities (as defined in section 475(c)(2) without regard to the last sentence thereof);
(ii) Commodities (as defined in section 475(e)(2));
(iii) Real estate held for rental or investment;
(iv) Cash or cash equivalents; and
(v) An interest in a partnership to the extent that the partnership holds Specified Assets. See § 1.1061-2(b)(1)(iii).
(vi) Specified Assets include options or derivative contracts with respect to any of the foregoing.
(i) Unrealized capital gains and losses that are allocated to the API Holder with respect to the API pursuant to a capital account revaluation under § 1.704-1(b)(2)(iv)(f) or § 1.704-1(b)(2)(iv)(s);
(ii) In the case of a Passthrough Entity that contributes property to another Passthrough Entity, unrealized capital gains and losses that would be allocated to the API Holder with respect to the API if the property contributed by the upper-tier Passthrough Entity to the lower-tier Passthrough Entity were sold immediately before the contribution for the amount that is included in the lower-tier partnership's capital account or, in the case of another type of lower-tier Passthrough Entity, a similar account maintained under § 1.1061-3(c)(3)(ii) with respect to the contributed property; and
(iii) In the case of a revaluation of the property of a partnership that is the owner of a tiered structure of partnerships or in the case of the contribution of an API to another Passthrough Entity, an API Holder's Unrealized API Gains or Losses at the time of the revaluation or contribution include those capital gains or losses that would be allocated directly or indirectly to the API Holder by the lower-tier partnerships as if a taxable disposition of the property of each of the lower-tier partnerships also occurred on the date of the revaluation or contribution under the principles of § 1.704-1(b)(2)(iv)(f). See § 1.1061-2(a)(1)(ii)(B).
(b)
(a)
(ii)
(B)
(iii)
(iv)
(v)
(2)
(i)
(B) After 6 years, A retires and is no longer engaged in an ATB and does not perform any services with respect to its ATB and with respect to PRS. However, A retains the API in PRS. PRS continues to acquire new capital assets and to allocate gain to A from the disposition of those assets. A's interest in PRS remains an API after A retires.
(ii)
(iii)
(iv)
(v)
(b)
(i)
(B)
(C)
(
(ii)
(iii)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(c)
(a)
(b)
(2)
(i) An S corporation for which an election under section 1362(a) is in effect; and
(ii) A passive foreign investment company (PFIC) with respect to which the shareholder has a qualified electing fund (QEF) election under section 1295 in effect.
(c)
(2)
(3)
(ii)
(B)
(
(
(C)
(iii)
(A) Amounts that are treated as API Gains and Losses and Unrealized API Gains and Losses;
(B) Partnership Transition Amounts described in § 1.1061-4(b)(7)(iii); or
(C) Items that are not taken into account for purposes of section 1061 under § 1.1061-4(b)(6).
(4)
(i) Allocations are made in the same manner to API Holders and Unrelated Non-Service Partners;
(ii) The allocations are made to Unrelated Non-Service Partners with a significant aggregate capital account balance. An aggregate capital account balance equal to 5 percent or more of the aggregate capital account balance of the partnership at the time the allocations are made will be treated as significant. Allocations to more than one Unrelated Non-Service Partner may be aggregated for determining significance if such allocations are made in the same manner to each of the Unrelated Non-Service Partners; and
(iii) The allocations to the API Holder and the Unrelated Non-Service Partners are clearly identified both under the partnership agreement and on the partnership's books and records as separate and apart from allocations made to the API Holder with respect to its API, and both the partnership agreement and the partnership's books and records clearly demonstrate that the requirements of paragraphs (c)(3) and (4) of this section have been met.
(5)
(ii)
(iii)
(A) The allocations solely are comprised of long-term capital gain and loss derived from assets (other than an API) directly held by the Passthrough Entity; and
(B) Allocations are made in the same manner (as provided in paragraph (c)(3)(i) of this section) based on each direct owner's capital account as determined under paragraph (c)(3)(ii) of this section.
(6)
(ii)
(A) First, determine the amount of long-term capital gain or loss that would be allocated to the Passthrough Interest (or the portion of the Passthrough Interest sold) if all the assets of the Passthrough Entity were sold for their fair market value in a fully taxable transaction (deemed liquidation) immediately before the disposition of the Passthrough Interest. To calculate this in tiered entities, determine the long-term capital gain or loss from a lower-tier Passthrough Entity.
(B) Second, determine the sum of the amount of Capital Interest Gain or Loss from the deemed liquidation that is allocated to the Passthrough Interest (or the portion of the Passthrough Interest sold) as Capital Interest Allocations under paragraph (c)(4) of this section and Passthrough Interest Capital Allocations under paragraph (c)(5) of this section. To calculate this in tiered entities, determine the capital gain or loss from a lower-tier Passthrough Entity.
(C) If the transferor recognized long-term capital gain upon disposition of the Passthrough Interest and only capital losses are allocated to the Passthrough Interest under paragraph (c)(6)(ii)(B) of this section from the deemed liquidation, then all of the long-term capital gain is API Gain. If the transferor recognized long-term capital loss on the disposition of the Passthrough Interest and only capital gain is allocated to the Passthrough Interest under paragraph (c)(6)(ii)(B) of this section, then all the long-term capital loss is API Loss.
(D) If paragraph (c)(6)(ii)(C) of this section does not apply, the amount of long-term capital gain that the transferor of the Passthrough Interest recognizes that is treated as a Capital Interest Disposition Amount is determined by multiplying long-term capital gain recognized on the disposition of the Passthrough Interest by a fraction, the numerator of which is the amount of long-term capital gain determined under paragraph (c)(6)(ii)(B) of this section, and the denominator of which is the amount of long-term capital gain determined under paragraph (c)(6)(ii)(A) of this section. Alternatively, if long-term capital loss is recognized on the disposition of the Passthrough Interest, the amount of long-term capital loss treated as a Capital Interest Disposition Amount is determined by multiplying the transferor's capital loss by a fraction, the numerator of which is the amount of long-term capital loss determined under paragraph (c)(6)(ii)(B) of this section, and the denominator of which is the amount of long-term capital loss determined under paragraph (c)(6)(ii)(A) of this section.
(E) In applying these rules, allocations of amounts that are not included in determining the amount of long-term capital gain or loss recognized on the sale or disposition of the Passthrough Interest are not included. See, for example, section 751(a).
(7)
(i)
(B)
(C)
(ii)
(B)
(iii)
(B)
(iv)
(v)
(B)
(C)
(D)
(vi)
(d)
(1)
(i) Any person who provides services in the Relevant ATB, or
(ii) Any service providers who provide services to or for the benefit of the target partnership or a lower-tier partnership in which the target partnership holds an interest, directly or indirectly.
(2)
(3)
(e) [Reserved]
(f)
(2)
(3)
(a)
(i) The Owner Taxpayer's One Year Gain Amount, less
(ii) The Owner Taxpayer's Three Year Gain Amount.
(2)
(A) The Owner Taxpayer's combined net API One Year Distributive Share Amount from all APIs held during the taxable year; and
(B) The Owner Taxpayer's API One Year Disposition Amount.
(ii)
(A) The Owner Taxpayer's combined net API Three Year Distributive Share Amount from all APIs held during the taxable year; and
(B) The Owner Taxpayer's API Three Year Disposition Amount.
(3)
(A) The API Holder's distributive share of net long-term capital gain from the partnership for the taxable year, including capital gain or loss on the disposition of all or a part of an API, with respect to the partnership interest held by the API Holder calculated without the application of section 1061, less
(B) To the extent included in the amount determined under paragraph
(
(
(
(ii)
(A) The API One Year Distributive Share Amount; less
(B) Items included in paragraph (a)(3)(ii)(A) of this section that would not be treated as a long-term gain or loss if three years is substituted for one year in paragraphs (3) and (4) of section 1222, and, if the Lookthrough Rule applies to the disposition of all or a part of an API, the adjustment required under paragraphs (b)(9)(ii)(B) and (C) of this section.
(4)
(A) Long-term capital gains and losses recognized during the taxable year by an Owner Taxpayer, including long-term capital gain computed under the installment method that is taken into account for the taxable year, on the disposition of all or a portion of an API that had been held for more than one year, including a disposition to which the Lookthrough Rule applies;
(B) Long-term capital gain and loss recognized on a distribution with respect to an API during the taxable year that is treated under sections 731(a) (and 752(b) if applicable) as gain or loss from the sale or exchange of a partnership interest held for more than one year;
(C) Long-term capital gains and losses recognized on the disposition of Distributed API Property during the taxable year that has a holding period of more than one year but not more than three years to the distributee Owner Taxpayer on the date of disposition; and
(D) Long-term capital gain or losses recognized as a result of the application of section 751(b).
(ii)
(A) Long-term capital gains and losses recognized during the taxable year by an Owner Taxpayer, including long-term capital gain computed under the installment method that is taken into account for the taxable year, on the disposition of all or a portion of an API that had been held for more than three years and to which the Lookthrough Rule does not apply;
(B) Long-term capital gains and losses recognized by an Owner Taxpayer on the disposition during the taxable year of all or a portion of an API that has been held for more than three years less any adjustments required under the Lookthrough Rule in paragraphs (b)(9)(ii)(B) and (C) of this section.
(C) Long-term capital gains and losses recognized on a distribution with respect to an API during the taxable year that is treated under sections 731(a) (and section 752(b) if applicable) as gain or loss from the sale or exchange of a partnership interest held for more than three years; and
(D) Long-term capital gains and losses recognized as a result of the application of section 751(b) that is treated as derived from an asset held for more than three years.
(b)
(2)
(3)
(4)
(ii)
(iii)
(5)
(ii)
(6)
(i) Long-term capital gain and long-term capital loss determined under section 1231;
(ii) Long-term capital gain and long-term capital loss determined under section 1256;
(iii) Qualified dividends included in net capital gain for purposes of section 1(h)(11)(B); and
(iv) Capital gains and losses that are characterized as long-term or short-term without regard to the holding period rules in section 1222, such as certain capital gains and losses characterized under the mixed straddle rules described in section 1092(b) and §§ 1.1092(b)-3T, 1.1092(b)-4T, and 1.1092(b)-6.
(7)
(ii)
(iii)
(A) The partnership must attach a signed and dated copy of a statement that the partnership is making an election in accordance with this paragraph (b)(7)(iii)(A) to the timely filed return (including extensions) filed by the partnership with the IRS under section 6031(a) for the first taxable year the partnership treats amounts as Partnership Transition Amounts;
(B) The partnership must maintain a copy of the election made under paragraph (b)(7)(iii)(A) of this section and by the due date of the election must clearly and specifically identify the assets held for more than three years as of January 1, 2018, in the partnership's books and records;
(C) The partnership must keep sufficient books and records to demonstrate to the satisfaction of the Secretary of the Treasury or his delegate that the identified assets had been held by the partnership for more than three years as of January 1, 2018, and that long-term capital gain or loss on the disposition of each asset has been treated as a Partnership Transition Amounts; and
(D) The partnership must keep an executed copy of its partnership agreement in effect as of March 15, 2018, and must have sufficient books and records to demonstrate that the API Holder Transition Amounts allocated to an API Holder in any taxable year do not exceed the amounts that would have been allocated to the API Holder with respect to its API under the partnership agreement in effect as of March 15, 2018, for the year ending December 31, 2017.
(8)
(ii)
(9)
(B)
(
(
(C)
(
(
(
(ii)
(A) The Owner Taxpayer must include the entire amount of capital gain recognized on the sale of the API in the API One Year Disposition Amount (see paragraph (a)(4)(i)(A) of this section) and in the case of an API Holder that is a Passthrough Entity and not an Owner Taxpayer, the entire amount of the capital gain recognized on the sale is included in the One Year Distributive Share Amount determined with respect to the API Holders of the Passthrough Entity (see paragraph (a)(3)(i)(A) of this section); and
(B) The Owner Taxpayer must include the amount of gain included in the API One Year Disposition Amount with respect to the disposition of the API reduced by the adjustment determined under paragraph (b)(9)(ii)(C) of this section (see paragraph (a)(4)(ii)(B) of this section) in the API Three Year Disposition Amount, and in the case of an API Holder that is a Passthrough Entity and not an Owner Taxpayer, the API Three Year Distributive Share Amount is reduced by the adjustment determined under paragraph (b)(9)(ii)(C) of this section as provided in paragraph (a)(3)(ii)(B) of this section.
(C)
(
(
(10)
(c)
(i)
(B)
(C)
(D)
(ii)
(B)
(C)
(iii)
(B)
(C)
(iv)
(B)
(C)
(D)
(2)
(i)
(B)
(C)
(ii)
(B)
(iii)
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(
(C)
(
(
(
(
(
(iv)
(v)
(B)
(vi)
(d)
(a)
(1) The Owner Taxpayer's net long-term capital gain with respect to such interest for such taxable year determined as provided in paragraph (c) of this section, over
(2) Any amount treated as short-term capital gain under § 1.1061-4 with respect to the transfer of such interest (that is, any amount included in the Owner Taxpayer's API One Year Disposition Gain Amount and not in the Owner Taxpayer's Three Year Disposition Gain Amount with respect to the transferred interest).
(b)
(c)
(B)
(2)
(d)
(e)
(i) A person that is a member of the taxpayer's family within the meaning of section 318(a)(1);
(ii) A person that performed a service within the current calendar year or the preceding three calendar years in a Relevant ATB to the API transferred by taxpayer; or
(iii) A Passthrough Entity to the extent that a person described in paragraph (e)(1)(i) or (ii) of this section owns an interest, directly or indirectly.
(2)
(f)
(1)
(2)
(3)
(ii)
(g)
(a)
(2)
(i) With respect to the determination of the API One Year Distributive Share Amount under § 1.1061-4(a)(3)(i) if not furnished, the amount calculated under § 1.1061-4(a)(3)(i)(B) does not include—
(A) Amounts excluded from section 1061 under § 1.1061-4(b)(6);
(B) API Holder Transition Amounts; and
(C) Capital Interest Gains and Losses as determined under § 1.1061-3(c)(2).
(ii) With respect to the determination of the API Three Year Distributive Share Amount determined under § 1.1061-4(a)(3)(ii) if not furnished, items included in the API One Year Distributive Share amount are treated as items that would not be treated as long-term capital gain or loss, if three years is substituted for one year in paragraphs (3) and (4) of section 1222.
(b)
(i) The API One Year Distributive Share Amount and the API Three Year Distributive Share Amount (as determined under § 1.1061-4);
(ii) Capital gains and losses allocated to the API Holder that are excluded from section 1061 under § 1.1061-4(b)(6);
(iii) Capital Interest Gains and Losses allocated to the API Holder (as determined under § 1.1061-3(c));
(iv) API Holder Transition Amounts (as determined under § 1.1061-4(b)(7)); and
(v) In the case of a disposition by an API Holder of an interest in the Passthrough Entity during the taxable year, any information required by the API Holder to properly take the disposition into account under section 1061, including information to apply the Lookthrough Rule and to determine its Capital Interest Disposition Amount.
(2)
(ii)
(iii)
(B)
(
(iv)
(v)
(vi)
(vii)
(c)
(i)
(ii)
(2)
(3)
(d)
(e)
The additions read as follows:
(b) * * *
(5)
(ii)
(f) * * *
(9)
(10)
(g) * * * Paragraph (b)(5), (f)(9), and (f)(10) of this section apply to taxable years beginning on or after [DATE OF PUBLICATION OF THE FINAL RULE IN THE
Office of Postsecondary Education, Department of Education.
Final regulations.
In response to the United States Supreme Court decision in
For information about the provisions of this regulation, contact Sophia McArdle at (202) 453-6318 or by email at
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Purpose of This Regulatory Action: Through this regulatory action, the Department responds to the United States Supreme Court decision in
Summary of the Major Provisions of This Regulatory Action:
To restore religious liberty to faith-based institutions and religious students, these regulations—
• Restore the ability of members of religious orders, who also are pursuing courses of study at institutions of higher education, to participate in the title IV programs by eliminating regulatory provisions that treat members of religious orders as having no financial need in certain circumstances.
• Allow certain borrowers, who serve as full-time volunteers in tax-exempt organizations and give religious instruction, conduct worship service, proselytize, or fundraise to support religious activities as part of their official duties, to defer repayment of Federal Perkins Loans, National Direct Student Loans (NDSLs), and Federal Family Education Loan Program (FFEL) loans.
• Provide an interpretation of the PSLF regulations that permits borrowers who work for employers that engage in religious instruction, worship services, or proselytizing to qualify for PSLF.
• Clarify requirements for private secondary and postsecondary faith-based institutions' participation in the GEAR UP program.
• Conform language in the Leveraging Educational Assistance Partnership Program (LEAP) and Federal Work-Study Programs (FWSP) regulations regarding allowable program activities to statutory language.
For the TEACH Grant Program, the regulations—
• Clarify that grant recipients may satisfy the TEACH Grant service obligation by teaching for an educational service agency that serves low-income students.
• Clarify the beginning date of the eight-year period for completing the TEACH Grant service obligation.
• Revise the definition of “highly qualified.”
• Update and expand the conditions under which a TEACH Grant recipient may satisfy the TEACH Grant service obligation by teaching in a high-need field listed in the Department's annual Teacher Shortage Area Nationwide Listing (Nationwide List) at
• Clarify the service obligation requirements for TEACH Grant recipients who withdraw from the institution where they received a TEACH Grant before completing the program for which they received the grant, then later re-enroll in the same program or in a different TEACH Grant eligible program at the same academic level.
• Provide that a TEACH Grant recipient may request reversal of a voluntary grant-to-loan conversion so that the recipient can complete the service obligation, as long as the service obligation is completed within eight years from when the grant recipient ceased enrollment at the institution where the recipient received the grant or, in the case of a student who received a TEACH Grant at one institution and subsequently transferred to another institution and enrolled in another TEACH Grant-eligible program, within eight years of ceasing enrollment at the other institution, excluding periods of suspension, which the recipient could apply for retroactively.
• Expand the information that is provided to TEACH Grant recipients during initial, subsequent, and exit counseling, and add a new conversion counseling requirement for grant recipients whose TEACH Grants are converted to Direct Unsubsidized Loans.
• Provide counseling requirements for TEACH Grant recipients who receive
• Add new conditions under which a TEACH Grant recipient may receive a temporary suspension of the eight-year period for completing the service obligation and for grant recipients whose grants were converted to loans in error and who need additional time to complete the teaching service obligation once the error is corrected.
• Remove the current regulatory requirement for TEACH Grant recipients to certify, within 120 days of completing the program for which they received TEACH Grants, that they have begun qualifying teaching service, or that they have not yet begun teaching, but they intend to satisfy the service obligation.
• Simplify the regulations specifying the conditions under which TEACH Grants are converted to Direct Unsubsidized Loans so that for all grant recipients, loan conversion will occur only if the recipient asks the Secretary to convert his or her TEACH Grants to loans, or if the recipient fails to begin or maintain qualifying teaching service within a timeframe that would allow the recipient to satisfy the service obligation within the eight-year service obligation period.
• Specify that the Secretary will send grant recipients, at least annually, a notice containing detailed information about the TEACH Grant service obligation requirements, a summary of the grant recipient's progress toward satisfying the service obligation, and an explanation of the process by which a grant recipient whose TEACH Grants are converted to Direct Unsubsidized Loans may request reconsideration of the conversion if he or she believes that the grants were converted in error.
• Provide that grant recipients will be automatically provided with a “statement of error” when a grant that was incorrectly converted to a loan is later reconverted to a TEACH Grant.
• Describe the actions that the Secretary will take if a grant recipient's request for reconsideration of the conversion of the grant to a loan is approved or denied.
• Specify that the Secretary will notify a grant recipient in advance of the date by which he or she will be subject to loan conversion for failure to begin or maintain qualifying teaching service within a timeframe that would allow the recipient to complete the service obligation within the eight-year service obligation period, and inform the recipient of the final date by which he or she must provide documentation of teaching service to avoid having his or her grants converted to loans.
• Incorporate statutory changes and update, simplify, and clarify various areas of the TEACH Grant Program regulations.
As discussed in the
The Secretary is exercising her authority under section 482(c) of the HEA to designate the regulatory changes to regulations at title 34, parts 600, 674, 675, 676, 682, 685, 686, 690, 692, and 694, of the Code of Federal Regulations included in this document for early implementation beginning on August 14, 2020, at the discretion of each institution, or each agency, as appropriate. The Department will implement the regulations as soon as possible after the implementation date and will publish a separate notice announcing the timing of the implementation. Otherwise, the final regulations included in this document are effective July 1, 2021.
We developed these regulations through negotiated rulemaking. Section 492 of the HEA requires that, before publishing any proposed regulations to implement programs under title IV of the HEA, the Secretary must obtain public involvement in the development of the proposed regulations. After obtaining advice and recommendations, the Secretary must conduct a negotiated rulemaking process to develop the proposed regulations. The negotiated rulemaking committee reached consensus on the proposed regulations that we published on December 11, 2019 (84 FR 6778). The Secretary requested comments on the proposed regulations by January 10, 2020, and 46 parties submitted comments. An analysis of the comments and of the changes in the regulations since publication of the NPRM follows.
We group major issues according to subject, with appropriate sections of the regulations referenced in parentheses. We discuss other substantive issues under the sections of the regulations to which they pertain. Generally, we do not address minor, non-substantive changes, recommended changes that the law does not authorize the Secretary to make, or comments pertaining to operational processes. We also do not address comments pertaining to issues that were not within the scope of the NPRM.
Commenters opined that the current regulations are sufficient to protect citizens' religious freedoms, and that the proposed regulations regarding title IV programs would subsidize religious activities. These commenters expressed concern that the Department's proposed regulations would favor religious institutions over their secular counterparts and would therefore violate the Establishment Clause. Commenters pointed to the facts in
Other commenters stated that
The Department does not agree, however, with those commenters who argued that the Establishment Clause requires the Department's previous prohibitions in order to bar the use of government funds to advance religion or for religious purposes. Those commenters urged the Department to go beyond the requirements of the Establishment Clause. The Supreme Court has made it clear that a “policy preference” of “achieving greater separation of church and State than is already ensured under the Establishment Clause” is insufficient to justify excluding religious organizations from generally available benefits.
Some commenters also stated the Department's changes to eligibility requirements for certain aid would have the effect of advancing religion. The Department's aid will not advance religion, nor do the Department's changes require aid to be used for religious purposes. In the final regulations, the Department is correcting prior rules that disfavored faith-based institutions and students—not, as some commenters worried, to favor them over their secular counterparts. The changes affecting faith-based institutions and individuals in the final regulations fall into two broad categories: First, the eligibility of faith-based entities to participate in Federal Student Aid programs under title IV of the HEA; and second, the
Because of such inequality, the Department does not agree with the commenter who argued that RFRA is not implicated by the Department's current rules excluding religious individuals and entities from the ability to participate in generally available benefit programs. Congress has tasked the Department with the duty to ensure that the Department's actions, including its regulatory actions, do not substantially burden a person's exercise of religion (absent a compelling government interest and a showing that the burden is the least restrictive means of furthering that interest). 42 U.S.C. 2000bb,
RFRA defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. 2000bb-2(4) (citing 42 U.S.C. 2000cc-5). The current rules impose a “penalty” on these individuals' free exercise of religion,
And the Department's status-based restrictions are neither necessary to further a compelling government interest, nor are they the least restrictive means of furthering any such interest. Therefore, RFRA would require the Department to alleviate the substantial burden imposed by its regulations.
The Department also disagrees with one commenter's suggestion that RFRA does not apply at all; the statute binds the “Government” which includes the Department in its regulating capacity, 42 U.S.C. 2000bb-1(a), and further “applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” 42 U.S.C. 2000bb-3(a).
The Department disagrees with commenters who claimed that the Department's current rules are sufficiently protective of religious freedom. The Supreme Court has upheld some religious-funding restrictions,
The Supreme Court has made it clear that the government should be “neutral in its relations with groups of religious believers and non-believers; [the Establishment Clause] does not require the state to be their adversary.”
In
That same basic defect is present in the Department's current regulations: But for the entities' and individuals' religious character, they would have qualified for government aid under title IV. For example, under current 34 CFR 674.9(c)(1), a student is prohibited from receiving a Federal Perkins Loan if that student was a “member of a religious order” that has as its primary objective “the promotion of ideals and beliefs regarding a Supreme Being” and which required its members to forego monetary support and receive subsistence support from the order. Because the restriction only applies to individuals based on an individual's members in a religious order, that restriction is based on the individual's religious status. The Department believes that otherwise-eligible students and institutions should not be denied participation in title IV programs based solely on their religious identities and, furthermore, that the Free Exercise Clause prohibits such status-based religious discrimination.
The Department considered commenters' concerns that its changes amount to government subsidies for religious activities. These commenters included discussions of
Some commenters argued that the current regulations fall within the latter category—that allowing religious individuals and entities to qualify for Federal aid would amount to promoting religion, because the recipients would use their aid to practice their religion. But those regulations deny eligibility based on a person's membership in a
The Supreme Court has long held that the government may furnish “general . . . benefits to all its citizens without regard to their religious belief.”
Commenters also argued that the Department errs in relying on
But footnote 3 is not part of the majority opinion in Trinity Lutheran, because two of the six Justices in the majority opinion joined the opinion “except as to footnote 3.”
The Court has long held that “[w]hen an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.”
Subcommittee representatives presented their proposals and analysis to the full committee multiple times during the negotiated rulemaking. Both sides of issues, those for and against the Department's proposed amendments to the regulations, were presented to the full committee. Additionally, multiple members of the full committee worked for faith-based organizations or otherwise had experience working on church and State issues.
The Department agrees with the commenters that the work of the negotiated rulemaking committee cannot overrule the Constitutional opinions of the U.S. Supreme Court, including cases like
Some commenters agreed with the proposed removal, indicating that the current language violates the Free Exercise and the Free Speech Clauses. Specifically, commenters noted that religious observance, including vows of poverty and obedience, are protected by the First Amendment of the United States Constitution and should not be cited as a reason for exclusion from Federal student aid programs.
Other commenters opposed the proposed removal, because they believe that without the current regulatory language, the Department would be subsidizing inherently religious activities, such as religious education and proselytizing, in violation of the Establishment Clause. One commenter further indicated that the procedural history of the regulations indicates that the rationale for the current regulations is not based on belief but on real-world considerations of financial status of individuals in religious orders who may receive financial subsidies even if they do not have an income.
The formulas for determining financial need in U.S. Code Part F consider subsidies received by students from any entity, including religious and non-religious entities. The current regulatory language that specifies that members of religious orders are presumed not to have need singles out such members for differential treatment and is likely not narrowly tailored to address a compelling interest. Such a provision also unnecessary for determining financial need as the formulas are themselves sufficient.
Other commenters opposed the removal of these provisions, indicating that allowing a borrower to be eligible for subsidies if the borrower works on inherently religious activities would be directly subsidizing individuals engaged in religious activities in violation of the Establishment Clause.
Under the current regulations, a borrower may be eligible for deferment if working as a full-time volunteer for a tax-exempt organization providing services to low-income persons and their communities to assist them in eliminating poverty and poverty-related human, social, and environmental conditions for at least one year. However, the regulation disqualifies that same borrower from deferment if he or she, as part of his or her duties, gives religious instruction, conducts worship services, engages in religious proselytizing, or engages in fundraising to support religious activities. The regulations thus disfavor borrowers participating in otherwise-eligible public services merely because that public service is performed from a religious perspective. For some borrowers, these restrictions may also impose a substantial burden on their free exercise of religion by forcing them to choose between such religious exercise and eligibility for loan deferments. No compelling government
The Supreme Court has noted the distinction, for Establishment Clause purposes, between direct provision of government aid to a religious programs and indirect government aid that flows to religious programs based on private choice in its Establishment Clause cases. For example, in
One commenter indicated that both the statute and the regulation fail to define “sectarian instruction.” That commenter wondered whether the term includes only inherently religious instruction or whether it also includes efforts to integrate religious convictions into other subjects.
Several commenters indicated that the statutory language includes unjustified discrimination against religion, religious individuals, and religious activities in violation of the Free Exercise and Free Speech Clauses as well as RFRA. One commenter noted that the Department has the authority and an independent duty to obey the Constitution and RFRA regardless of the statutory language in the HEA.
One commenter contended that the changes would allow FWSP students to serve in facilities dedicated solely to religious functions which would violate the separation of church and State.
Nor does the Department believe that the restriction necessarily runs counter to RFRA. It is true that RFRA applies retrospectively and prospectively to “all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after” its effective date, 42 U.S.C. 2000bb-3(a), including the FWSP restriction here. On the one hand, because the restriction is religious in nature, it is possible that the restriction could substantially burden the exercise of religion by institutions of higher education and/or individual student participants. The restriction appears to be aimed at preventing the use of government funds to support religious activities. However, the restriction is neither required by the Establishment Clause in light of the need for intervening private choice by an institution of higher education and an individual student participant before program funds could be linked with religious activity,
To the extent that the FWSP restriction does not substantially burden a person's exercise of religion, however, it does not appear to violate the Constitution or RFRA.
In otherwise amending the regulation to conform to the statute, the Department intends to provide as much clarity and flexibility as possible within the confines of the HEA and to ensure adherence to the statute. Chapels and other religious structures are often part of larger multi-use facilities on college campuses. The Department wishes to clarify that FWSP students may construct, operate, or maintain portions of multiuse structures that are not dedicated solely to religious purposes.
The Department disagrees with commenters who claimed that, under the statutory language, FWSP students would be involved in the construction, operation, or maintenance of facilities dedicated solely to religious functions. The statutory language precludes such opportunity by specifying that work performed under the FWSP may “not involve the construction, operation, or maintenance of so much of any facility as is used or is to be used for sectarian instruction or as a place for religious worship.” Therefore, if a building is used solely for sectarian instruction or as a place for religious worship, FWSP employment may not include the construction, operation, or maintenance of that building. For large, multi-use structures, however, FWSP employment may include the construction, operation, or maintenance of that building.
While neither the statute nor the current regulations define the term “sectarian instruction,” the Department follows a similar definition to that set forth in a published opinion by the Department of Justice's Office of Legal Counsel.
The Department concludes that this reading of the restriction is independently justified in light of the canon of constitutional avoidance.
In addition, the Department's interpretation of “sectarian instruction” is independently supported by RFRA. A broad reading of the restriction could cover all buildings where instruction takes place at a religious institution, potentially forcing the institution to choose between participation in the FWSP and continuing in its religious exercise. This would place a substantial burden on such institutions' exercise of religion without advancing any compelling government interest by the least restrictive means and would therefore run counter to RFRA.
Many commenters asserted that both the original regulatory language and the proposed change violate RFRA, because the regulations force borrowers to choose between exercising their religion and obtaining a meaningful government benefit. Also, commenters stated that the proposed regulations would unlawfully continue to exclude those who are participating in religious exercise and speech from qualifying for the generally available benefit of loan forgiveness. Commenters believed that, under the proposed rules, borrowers could be compelled to work for secular organizations over religious organizations in order to obtain loan forgiveness. From a practical perspective, commenters noted that religious activities may be intertwined with secular work, making it difficult to clearly separate out the hours and creating uncertainty and confusion on the part of the applicants and employing organizations. These commenters indicated that religious activities should not be excluded in the calculation of work hours for PSLF.
Some commenters stated that the Establishment Clause does not require borrowers eligible for loan forgiveness to exclude religious activities from their full-time work hours. Commenters also contended that the proposed provision would raise a significant threat of entanglement under the Establishment Clause when the government tries to evaluate whether a religious organization's employees are properly defining work that touches on religious education or worship.
Further, commenters asserted that because the proposed language is not the least restrictive means of advancing any government interest, the language also violates RFRA.
One commenter also raised concerns that the terms “religious instruction,” “worship services,” and “proselytizing” are not defined and are not workable. For example, the commenter argued that worship cannot be separated from the teaching of moral values, and that it is not clear whether proselytizing includes secular viewpoints. The commenter stated that use of these terms has the effect of excluding people engaged in religious speech. The commenter argued
Other commenters expressed concern that it would violate the Establishment Clause if borrowers received loan forgiveness to work on inherently religious activities. One commenter argued that the Department's justification for this proposal misinterprets the decision in
Commenters stated that using RFRA to create a religious exemption for PSLF work requirements is at odds with the tailored approach required by RFRA, and that RFRA does not give the Department authority to adjudicate claims it anticipates might happen and create blanket exemptions. Instead, RFRA requires a “careful, individualized, and searching review.”
Many commenters encouraged the Department to adopt the proposed language or to maintain the current regulatory language.
The Department also recognizes that there are practical difficulties associated with separating religious work from public service work, as the two may not always be cleanly divided. There would be burdens on both the borrowers in attempting to record the different time spent on religious activities and on the Department in overseeing such a restriction. Moreover, concerns about potentially overbroad interpretations of the religious activities that could not count toward full-time work could dissuade borrowers from working for religious organizations or pressure them to forgo the economic benefits that flow from loan forgiveness. And to the extent that the proposed language was interpreted broadly to disqualify from loan forgiveness individuals who hold particular views about the religious nature of their public service—for example, those who view their service as a form of proselytization even if it contains no explicit call to conversion—would raise Free Exercise or RFRA concerns. As a result, the Department has not included proposed § 685.219(c)(4) in the final regulations. The final regulations will set religious individuals and entities on equal footing with their secular counterparts by allowing such individuals and entities to qualify for the same aid already available to nonreligious individuals and entities.
The Department does not agree with commenters who argued that RFRA is not implicated by the Department's current rules excluding religious individuals and entities from participation in generally available benefit programs. Nor does the Department agree with commenters who argued that the Department is using RFRA to create overly broad, blanket exceptions. The rule is designed to both correct existing RFRA violations under the current regulations and to prevent future violations. Congress has tasked the Department with the duty to ensure that the Department's regulations do not substantially burden a person's exercise of religion (absent a compelling government interest and a showing that the burden is the least restrictive means of furthering that interest). 42 U.S.C. 2000bb,
Because the current regulations discriminate against religious groups and deny individuals the ability to participate in important government programs on the basis of their religious status, the current regulations likely amount to a substantial burden on those entities' exercise of religion.
RFRA defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. 2000bb-2(4) (citing 42 U.S.C. 2000cc-5). The current rules impose a “penalty” on these individuals' free exercise of religion,
And the Department's status-based restrictions are neither necessary to further a compelling government interest, nor are they the least restrictive means of furthering any such interest. Therefore, RFRA would require the Department to alleviate any such substantial burden.
Some commenters believe that the Department's changes to eligibility requirements for certain aid would have the effect of advancing religion. The Department's aid will not advance religion, nor do the Department's changes require aid to be used for religious purposes. Rather, the Department's aid will advance public service generally, by eliminating a condition on eligibility for loan forgiveness that might have deterred individuals from performing such volunteer work, and it will accommodate the religious exercise of those who seek to perform volunteer work for a religious organization. Importantly, the Department's final regulations correct rules that singled out individuals employed by organizations that are engaged in religious activities for disfavored treatment.
Additionally, the Supreme Court has repudiated the suggestion, advanced by some commenters, that the Establishment Clause bars government aid from flowing from religiously neutral government programs to religious institutions.
In addition, under the principle set forth in
Although the current regulations do not raise an Establishment Clause problem, they do raise a Free Exercise Clause concern. In
A materially similar fact pattern exists in the current regulations: But for the religious character of the public service organization that a borrower works for and the types of religious activities the organization performs, the borrower would have qualified for loan forgiveness under title IV. The benefit available under § 685.219 is generally available, except to borrowers who work for non-profit organizations that are engaged in religious activities. Such an exclusion is based on the religious status of an organization and, therefore, is unconstitutional. Some commenters argue that the Department errs in relying on
As discussed above in the Department's response to general comments on Faith-Based Entities, footnote 3 does not undermine the force of the reasoning in
We have removed the language in the proposed regulations addressing the initial, subsequent, and exit counseling requirements which state that the conversion of a TEACH Grant to a loan cannot be reversed if the grant recipient requested the conversion, and have revised the regulations governing the initial, subsequent, and exit counseling requirements in § 686.32(a), (b), and (c), respectively, and the new conversion counseling requirements in § 686.32(e) by adding for each type of counseling a requirement that the counseling explain the terms and conditions under which a grant recipient who voluntarily requested conversion of a TEACH Grant to a loan under § 686.43(a)(1)(i) may subsequently request and be approved for a reversal of the conversion, as described above. We have also added new paragraph § 686.12(b)(7) to provide that the contents of the agreement to serve or repay must include this same information.
We believe that the expanded counseling reflected in these regulations will help reduce the number of grants that are converted to loans. We note, however, that, consistent with the rules relating to the Direct Loan Program, a recipient's failure to receive or read the counseling materials is not a basis for reconverting the loan to a grant.
The proposed regulations describing the initial, subsequent, exit, and conversion counseling included language stating that the counseling must explain that a TEACH Grant that has been converted to a Direct Unsubsidized Loan may be reconverted to a grant if the Secretary determines that the grant was converted to a loan in error. For consistency with redesignated § 686.43(a)(5), we have revised this language to state that a grant that was converted to a loan may also be reconverted to a grant based on documentation showing that the recipient was satisfying the service obligation within the required time frame.
We have deleted § 686.43(d), which stated that a TEACH Grant that is converted to a Federal Direct Unsubsidized Loan cannot be reconverted to a grant, consistent with the other changes to this section.
• A grant recipient completes the program for which he or she received a TEACH Grant and enters the service obligation period.
• The recipient receives no suspensions and does not begin qualifying teaching until the start of the fifth year of the eight-year service obligation period.
• The recipient completes two academic years of qualifying teaching during the fifth and sixth years of the eight-year service obligation period. At the beginning of the seventh year of the service obligation period, the recipient's TEACH Grant is converted to a loan in error and remains incorrectly in loan status for three years.
• During the period when the grant is incorrectly in loan status, the recipient completes one additional academic year of qualifying teaching service.
• After the erroneous conversion is reversed and the recipient's loan is reconverted to a TEACH Grant, the three years of completed service (including the year of teaching completed while the grant was incorrectly in loan status) is subtracted from eight years, giving the recipient an additional five years following the correction of the erroneous conversion to complete the remaining one year of teaching required under the service obligation.
In contrast to the approach described in the directed question and illustrated by the above example, under the proposed regulations the grant recipient in Example 1 would have had only two years following the correction of the erroneous conversion to complete the remaining one year of the service obligation.
Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
Under Executive Order 12866, section 3(f)(1), the changes proposed in this regulatory action would materially alter the rights and obligations of recipients of Federal financial assistance under title IV of the HEA. Therefore, OMB has determined that this is a significant regulatory action subject to review by OMB.
Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. The final regulations are a significant regulatory action under Executive Order 12866. However, Executive Order 13771 does not apply to “transfer rules” that cause only income transfers between taxpayers and program beneficiaries. Because the portion of the regulatory changes relating to the TEACH Grant Program and PSLF are a transfer rule and the remaining proposed regulatory changes impose minimal estimated costs of approximately $1.27 million in annualized net PRA costs at a 7 percent discount rate, discounted to a 2016 equivalent, over a perpetual time horizon, the requirement to offset new regulations in Executive Order 13771 does not apply to this final regulation. Accordingly, the Department is not required to identify deregulatory actions under Executive Order 13771.
We have also reviewed these final regulations under
(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final regulations only on a reasoned determination that their benefits justify their costs. Based on the analysis that follows, the Department believes that these regulations are consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly interfere with State, local, or Tribal
In this regulatory impact analysis, we discuss the need for regulatory action, the potential costs and benefits, assumptions, limitations, and data sources, as well as regulatory alternatives we considered.
In 2007, Congress established the Teacher Education Assistance for College and Higher Education (TEACH) Grant Program to increase the number of teachers in high-need fields in low-income schools. In exchange for receiving a TEACH Grant, recipients agree to teach in a high-need field
A 2015 Government Accountability Office (GAO) report found that around 36,000 out of more than 112,000 TEACH Grant recipients had not fulfilled TEACH Grant requirements and had their grants converted to loans (GAO, 2015).
A 2018 study conducted for the Department by the American Institutes for Research (U.S. Department of Education, 2018)
To address the concerns raised by these studies, we are changing the regulations to facilitate the process of documenting satisfaction of the service obligation requirements and ensure that recipients who fulfill their service obligation receive credit for it. Additionally, these regulations create a process to remediate conversions caused by life events (including on a case-by-case basis as determined by the Secretary) or administrative error to facilitate the completion of service obligation requirements for those who seek to do so. This will help reduce the percentage of TEACH Grants that erroneously convert to Direct Unsubsidized Loans and fulfill the TEACH Grant Program's intended outcomes.
The regulations also ensure that faith-based entities, students who are members of religious orders, and borrowers fulfilling service obligations are not further burdened by their religious beliefs, and instead have equal access to broadly available programs and government funding. In response to the Supreme Court's decision in
The Department has analyzed the costs and benefits of complying with these final regulations and our estimates are a function of the uncertainty and limitations of relevant data. As discussed below, we believe that these final regulations will result in modest transfers from the Federal government and will benefit recipients of support under the affected programs.
With respect to the TEACH Grant Program, we anticipate that by simplifying and clarifying certification procedures and providing greater flexibility to recipients to meet their service obligation, the final regulations will result in a decrease in the number of TEACH Grant recipients that have their grants converted to loans. We further anticipate that this outcome and the expansion of opportunities that students can use to fulfill the service obligation will result in more teachers teaching in high-need fields at low-income schools as well as in authorized teacher shortage areas.
The final regulations related to other programs will also reduce the potential for discrimination against students and faith-based institutions due to their religious beliefs in violation of the Free Exercise Clause.
Regarding changes to the TEACH Grant Program, the changes improve the reporting and documentation process for grant recipients and could lead to a reduction in the number of grant-to-loan conversions. According to Department
For FY 2020, The Department estimates that approximately 32,000 recipients will receive $92 million in TEACH Grants with an average award of slightly over $3,000. Over the past five years from fiscal year 2014 through fiscal year 2019, the Department has provided a total of $524.6 million in TEACH grant funding to 190,686 students. Based on program data through FY 2019, the Department estimates that 64 percent of students receiving TEACH Grants will fail to complete their required service commitment and will have their grants converted to Direct Unsubsidized Stafford Loans.
Using a sensitivity analysis of grant-to-loan conversions, we estimate that for the 2020 cohort, a one percentage point reduction in the grant-to-loan conversion would result in a transfer from the Federal Government of $727,034, since each grant that is not converted to a loan where the student is obligated to pay it back remains a grant. The Department recognizes that the percentage change that the final regulations would have on the percentage of conversions is uncertain. The Department intends that these regulatory changes will reduce the loan conversion rate. However, students fail to meet the TEACH Grant service requirements for many reasons, including teaching in positions that do not qualify or changing to non-teaching employment. For instance, the PPSS/AIR study cited earlier reported that approximately 39 percent of TEACH recipients whose grants had been converted to loans reported teaching in a position that did not qualify for the TEACH program, 33 percent reported not teaching or not completing the teaching certificate program, 32 percent stated they did not understand the service requirements, and about 44 percent of respondents reported factors related to the annual certification process as influencing them to not complete the program requirements. Since respondents could select more than one response category, the total percentage does not add to 100 percent. Of those that indicated the annual certification process was a problem, the distribution revealed that about 19 percent said they did not know about the annual certification process; 13 percent reported not certifying because of challenges to the certification process; 9 percent reported not certifying because they forgot, and about 2 percent listed other reasons.
While predicting how recipients might change their behavior due to the final regulations is speculative, the PPSS/AIR responses give us reason to assume that there will be improvement based on the recipients who cited the certification process as a factor in their conversion. Such improvement would logically lead to some reduction in the grant-to-loan conversion rate.
Given an estimated grant-to-loan conversion rate, it is possible to identify a series of transfers for a series of percentage reductions that give context to the potential impact that the proposed regulations would have.
The above table suggests that if the grant-to-loan conversion rate were reduced from the estimated 64 percent to 59 percent—a five percentage point reduction—the Federal Government would incur additional transfers of approximately $3.6 million based on the 2020 cohort. And, if the projected 64 percent rate were reduced by 10 percentage points to 54 percent for the same 2020 cohort, there would be a cost of about $7.3 million. However, this transfer from the Federal Government would also result in a benefit to student TEACH Grant recipients who would not have to repay their TEACH Grants which would not be converted to loans. Note that these are five percentage percentage-point intervals, and not percentage decreases of the current rate.
Currently, a TEACH Grant recipient may not satisfy the service obligation by teaching in a geographic region of a State that has been designated in the Nationwide List (at
The final regulations remove this limitation. For example, under the final regulations, a grant recipient could satisfy the service obligation by serving as a full-time highly qualified general elementary school or secondary school teacher at a low-income school in a State that has reported a general shortage of elementary or secondary teachers in the Nationwide List. This is not currently allowed. Therefore, the final regulations allow grant recipients who are unable to find qualifying teaching jobs in a high-need field to meet the service obligation by teaching at a low-income school located in a geographic teacher shortage area or at a grade level where there is a shortage of teachers. This could facilitate increased opportunities for TEACH recipients toward meeting the service obligation and perhaps impact the conversion rate to loans. More importantly, it could serve as an important incentive to attract highly qualified teachers to serve in higher need areas and fields. It would be speculative to assume any specific amount of change in the conversion rate attributable to potential expanded teaching opportunities. Also, the proposed change might result in some grant recipients simply transferring from one low-income school to another low-income school to accept a teaching position that might previously have not been eligible.
Based on available data from the Department's Teacher Shortage Area listing,
Overall, the final regulations have the potential to improve some aspects of the certification process and opportunities for recipients to meet their service requirements, which would benefit recipients, in keeping with the original goal of the program. As several provisions are expected to decrease the grant-to-loan conversion rate and result in additional cost to the Federal Government, we have estimated a net budget impact of that change.
In addition to the 3 percent decrease attributed to the changes to the high needs field requirements, we assume that the additional changes to the TEACH Grant program described in this preamble will decrease grant-to-loan conversions. We expect this effect will be lower for existing cohorts as improved counseling is provided to future participants and participants who took out TEACH Grants several years ago may be established in jobs that may not qualify or may have moved on from the profession, possibly limiting the ways those with older TEACH grants may respond to the changes made by these regulations. As a result, we applied the decreases shown in Table [2] to the grant-to-loan conversion rate to the President's Budget 2021 baseline. For past cohorts, the changes are applied only to future years of activity.
The estimated net budget impact is a cost of $141.4 million, including a modification to existing cohorts of $16.6 million and a cost for cohorts 2020 to 2029 of $124.8 million.
A number of the changes to the regulations relate to the eligibility of certain entities and recipients to participate in the title IV programs. The final regulations remove language prohibiting borrowers with Perkins loans made before July 1, 1993 and National Defense Student Loans (NDSL) made between October 1, 1980 and July 1, 1993 from obtaining deferments during periods of otherwise eligible full-time volunteer work that includes providing religious instruction, conducting religious services, proselytizing, or engaging in fundraising to support religious activities. Due to the small group of borrowers expected to benefit from these changes and the heavy discounting effect that would apply to any deferment costs on such old loans, we do not estimate any budget impact from these changes.
The final regulations remove current provisions that state that a member of a religious order pursuing a course of study in an institution of higher education has no financial need for purposes of the Pell Grant Program, Federal Perkins Loan Program, FWSP, FSEOG, FFEL Program, or the Direct Loan Program.
Despite this change, the additional eligibility for student aid for a very small group of participants in a given religious order would not, in our estimation, result in any additional significant financial aid costs to the government. We have little firm data on the number of members in religious orders subject to these changes who would actually choose to accept the financial aid for which they are eligible. For instance, the Franciscans are perhaps the largest and most well-known mendicant religious order, which means the priests take a vow of poverty. According to a 2013 reference,
The regulatory changes would also affect PSLF. Under the final regulations, certain institutions that are tax-exempt under section 501(c)(3) of the Internal Revenue Code that are religious organizations would be considered public service eligible employers for purposes of PSLF. The application form for PSLF (OMB No. 1845-0110) specifically states that a qualifying employer includes a “not-for-profit organization that is tax-exempt under Section 501(c)(3) of the Internal Revenue Code” but makes no exclusion for religious purposes. The current application makes it clear that, in performing job duties toward the full-time requirement, a borrower's qualifying employment at a 501(c)(3) organization or a not-for-profit organization does not include time spent participating in religious instruction, worship services, or any form of proselytizing. This provision is changed in the final regulations in response to concerns that such provisions would violate RFRA. There is little to no existing data within the Department to isolate the potential population that may be newly eligible after this changed rule. The Department's assumption under the NPRM was that eligible 501(c)(3) employers and workers would cooperate in the structure of their work responsibilities to allow all potentially eligible workers not engaging in exclusively religious activity to meet the existing qualification requirements. However, there may have been previously ineligible workers, primarily clergy, who will be eligible under the changed rule. While their employers may have met the 501(c)(3) criteria, they were prohibited from receiving forgiveness due to the ineligibility of their work activities under the existing regulation. Based on an analysis of Bureau of Labor Statistics (BLS) data,
The changes to the GEAR UP program regulations would clarify that providers of GEAR UP services to students enrolled in private schools must be contracted independently of the private schools and would allow pervasively sectarian institutions of higher education to serve as fiscal agents for GEAR UP grants. In general, the Department does not estimate costs associated with changes to regulations governing competitive grant programs as participation in such programs is voluntary and funding still must be limited to what is appropriated by Congress. However, it is possible that certain changes in the regulatory framework governing a competitive grant program could produce transfers in program benefits among entities or recipients of services.
Regarding the provision requiring providers of services to students enrolled in private schools to be independent of the school, the Department first assessed the extent to which GEAR UP services are currently provided to students enrolled in such schools. During the most recent reporting period, GEAR UP grantees reported serving students in 4,033 schools. Of those schools, the Department was able to identify only five private schools in which students received GEAR UP services. In total, private schools represented only 0.1 percent of schools served by the program and, even among the grantees serving such schools, private schools represented 0.9 percent of the total schools they served. As such, we do not believe that the requirement relating to the employment relationship between individuals providing services in such schools and the schools themselves is likely to have a large impact on the administration of the program.
Regarding who may serve as a fiscal agent for a GEAR UP Grant, as noted above, the final regulations would allow pervasively sectarian institutions of higher education to serve in such a capacity. However, nothing in the current GEAR UP regulations precludes a pervasively sectarian institution of higher education from being a member of a GEAR UP partnership. As such, pervasively sectarian institutions can currently participate in and provide services under a GEAR UP grant. The Department does not have readily available data to identify all members of GEAR UP partnerships and whether they are pervasively sectarian. With such information, the Department could more easily quantify the potential number of partnerships affected by the change. However, even without such information, given that pervasively sectarian institutions are already eligible members of partnerships, we do not believe the change to allow them to serve as fiscal agents would dramatically change the makeup of the GEAR UP applicant pool. Any pervasively sectarian institution that currently wishes to participate in the GEAR UP program may do so and this change would only result in a shift in who has primary fiscal liability for the grant.
With respect to the TEACH Grant program, we considered maintaining the current regulations as is, that is not including provisions related to the current reconsideration process in the final regulations, maintaining the current counseling requirements without adding a separate conversion counseling requirement, maintaining, instead of expanding, the current regulations related to qualifying teacher shortage areas for fulfilling the service obligation, and not expanding allowable suspensions beyond those that are currently available. As we describe in previous sections, making these changes gives the Department the opportunity to address GAO concerns specifically, and generally provide from more information and clarity to recipients of the TEACH Grant program.
For the faith-based provisions, we considered not making the changes and leaving the current regulatory language in place as written.
The Secretary certifies that the final regulations will not have a significant economic impact on a substantial number of small entities. In fact, the primary entities who are affected by the final regulations are individual students, not organizations, businesses, or governmental units. This holds true for the faith-based component of the final regulations that address individuals participating in religious orders, or student borrowers applying for PSLF. Similarly, the changes to the TEACH Grant Program regulations primarily affect students who are interested in teaching and apply for a TEACH grant.
Of the entities that would be affected by the final regulations, many institutions, especially institutions with a faith-based mission, would be considered small. The Department recently proposed a size classification based on enrollment using IPEDS data that established the percentage of institutions in various higher education sectors considered to be small entities, as shown in Table [6].
The final regulations would affect students who belong to religious orders and those students most likely attend institutions with a religious mission. In general, we believe faith-based institutions are more likely to be small institutions. However, the final regulations do not affect the title IV eligibility of such institutions.
Accordingly, The Secretary certifies that the final regulations will not have a significant economic impact on a substantial number of small entities. Nothing in the final regulations would compel institutions, small or not, to engage in substantive changes to their programs. Therefore, there is no estimated associated institutional burden.
Even if the affected institutions were considered small entities, the final regulations are designed to permit them to participate in title IV programs without jeopardizing their religious mission. Nothing in the final regulations would require institutions to expand their enrollment, take on additional students, or to participate in title IV aid programs, but the final regulations would give them that opportunity.
As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: The public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.
Part 686 contains information collection requirements. Under the PRA the Department has submitted a copy of these sections to OMB for its review.
A Federal agency may not conduct or sponsor a collection of information unless OMB approves the collection under the PRA and the corresponding information collection instrument displays a currently valid OMB control number.
Notwithstanding any other provision of law, no person is required to comply with, or is subject to penalty for failure to comply with, a collection of information if the collection instrument does not display a currently valid OMB control number.
In the final regulations we will display the control numbers assigned by OMB to any collection requirements adopted in the final regulations.
Section 686.12—Agreement to serve or repay.
Section 686.32—Counseling requirements.
We believe that it will take a TEACH Grant recipient the same approximate 20 minutes (.33 hours) to review the new conversion counseling materials as it takes them to review the other required counseling materials. We estimate the total burden of 502 hours (1,520 × .33 hours) for recipients to review the conversion counseling material.
The changes to the initial, subsequent, exit, and new conversion counseling information collection will be completed and a full public clearance filing will be made after publication of the final rule and before being made available for use by the effective date of the regulations.
Section 686.40—Documenting the service obligation.
We believe that the second certification option on the “TEACH Grant Certification of Completed Teaching” form is needed to allow TEACH Grant recipients who have not yet completed any qualifying teaching, but who have sufficient time remaining in the eight-year service obligation period to complete the required four-years of teaching, to certify that they have begun qualifying teaching to avoid conversion of the TEACH Grants to loans under Section 686.43(a)(1)(ii). We estimate that to meet the certification requirements each respondent will need 20 minutes (.33 hours) to complete the certification form. We estimate that approximately 24 TEACH Grant recipients will submit the certification form for this purpose. We estimate a total burden of 8 hours (24 × .33 hours = 8 hours) for completion of the form.
We estimate the total burden of 17,494 hours (53,013 × .33 hours) under OMB Control Number 1845-0158.
Section 686.41—Periods of suspension.
Department records indicate that, during the 2018 calendar year, we received documentation supporting suspension of 589 grantees for enrollment to complete licensure
Department records indicate that, during the 2018 calendar year, we received documentation supporting suspension of 334 grantees for qualifying leave under the Family and Medical Leave Act of 1993. We estimate that to meet the requirements in final § 686.41(a)(1)(iii), each respondent will need 20 minutes (.33 hours) to complete the certification form. We estimate a total burden of 110 hours (334 × .33 hours).
Department records indicate that, during the 2018 calendar year, we received documentation supporting suspension of 24 grantees for call to military service. We estimate that to meet the requirements in final § 686.41(a)(1)(iv), each respondent will need 20 minutes (.33 hours) to complete the certification form. We estimate a total burden of 8 hours (24 × .33 hours).
We anticipate that we will receive documentation supporting suspension of 25 grantees based on military orders for the grantee's spouse. We estimate that to meet the requirements in final § 686.41(a)(1)(v), each respondent will need 20 minutes (.33 hours) to complete the certification form. We estimate a total burden of 8 hours (25 × .33 hours).
We anticipate that we will receive documentation supporting suspension of 500 grantees based on residing or being employed in a federally declared major disaster area. We estimate that to meet the requirements in final § 686.41(a)(1)(vi), each respondent will need 20 minutes (.33 hours) to complete the certification form. We estimate a total burden of 165 hours (500 × .33 hours).
We estimate the total burden of 485 hours (1,472 × .33 hours) under OMB Control Number 1845-0158.
Section 686.42—Discharge of agreement to serve or repay.
We estimate a total burden of 3 hours (10 × .33 hours) under OMB Control Number 1845-0158.
Section 686.43—Obligation to repay the grant.
There will be burden on those recipients who are notified that their
Additionally, there will be burden on any TEACH Grant recipient whose grant was involuntarily converted to a Direct Unsubsidized Loan to request reconsideration from the Secretary. Based on the Department's data, during calendar year 2018 there were 282 correctable conversions of TEACH Grants into loans. We estimate that a recipient will require 15 minutes (.25 hours) to gather documentation to present to the Secretary and make such a request as required under § 686.43(a)(5). We estimate a total burden of 71 burden hours (282 × .25 hours).
We estimate a total burden of 13,131 burden hours under OMB Control Number 1845-0157.
The estimated cost to the recipients is $1,680,714, based on the $29.48 per hour averaged for 2018 elementary, middle school and high school teacher salaries from the 2019 Bureau of Labor Statistics Occupational Handbook.
The total burden hours and change in burden hours associated with each OMB control number affected by the final regulations follows:
These programs are not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
In the NPRM we requested comments on whether the regulations would require transmission of information that any other or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.
You may also access documents of the Department published in the
Loan programs—education, Reporting and recordkeeping, Student aid.
Colleges and universities, Employment, Grant programs—education, Reporting and recordkeeping requirements, Student aid.
Grant programs—education, Reporting and recordkeeping requirements, Student aid.
Administrative practice and procedure, Colleges and universities, Loan programs—education, Reporting and recordkeeping requirements, Student aid, Vocational education.
Administrative practice and procedure, Colleges and universities, Loan programs—education, Reporting and recordkeeping requirements, Student aid, Vocational education.
Administrative practice and procedure, Colleges and universities, Education, Elementary and secondary education, Grant programs—education, Reporting and recordkeeping requirements, Student aid.
Colleges and universities, Education of disadvantaged, Grant programs—education, Reporting and recordkeeping requirements, Student aid.
Colleges and universities, Grant programs—education, Reporting and recordkeeping requirements, Student aid.
Colleges and universities, Elementary and secondary education, Grant programs—education, Reporting and recordkeeping requirements, Student aid.
For the reasons discussed in the preamble, the Secretary of Education amends parts 674, 675, 676, 682, 685, 686, 690, 692, and 694 of title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 1070g, 1087aa-1087hh; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.
The revision reads as follows:
(c) Has financial need as determined in accordance with part F of title IV of the HEA.
(c) * * *
(4) A full-time volunteer in service which the Secretary has determined is comparable to service in the Peace Corps or under the Domestic Volunteer Service Act of 1973 (ACTION programs). The Secretary considers that a borrower is providing comparable service if he or she satisfies the following four criteria:
(i) The borrower serves in an organization that is exempt from taxation under the provisions of section 501(c)(3) of the Internal Revenue Code of 1954.
(ii) The borrower provides service to low-income persons and their communities to assist them in eliminating poverty and poverty-related human, social, and environmental conditions.
(iii) The borrower does not receive compensation that exceeds the rate prescribed under section 6 of the Fair Labor Standards Act of 1938 (the Federal minimum wage), except that the tax-exempt organization may provide health, retirement, and other fringe benefits to the volunteer that are substantially equivalent to the benefits offered to other employees of the organization.
(iv) The borrower has agreed to serve on a full-time basis for a term of at least one year.
20 U.S.C. 1070g, 1087, 1094; 42 U.S.C. 2751-2756b; unless otherwise noted.
(c) Has financial need as determined in accordance with part F of title IV of the HEA.
(c) * * *
(2) * * *
(iv) Involve the construction, operation, or maintenance of so much of any facility as is used or is to be used for instruction that is predominantly devotional and religious or as a place for religious worship, except to the extent that excluding such work would impose a substantial burden on a person's exercise of religion.
20 U.S.C. 1070b-1070b-3, unless otherwise noted.
(c) Has financial need as determined in accordance with part F of title IV of the HEA.
20 U.S.C. 1071-1087-4, unless otherwise noted.
20 U.S.C. 1070g, 1087a,
(b) * * *
(i) A Federal, State, local, or Tribal government organization, agency, or entity;
(ii) A public child or family service agency;
(iii) A non-profit organization under section 501(c)(3) of the Internal Revenue Code that is exempt from taxation under section 501(a) of the Internal Revenue Code;
(iv) A Tribal college or university; or
(v)(A) A private organization that provides the following public services: Emergency management, military service, public safety, law enforcement, public interest law services, early childhood education (including licensed or regulated child care, Head Start, and State funded pre-kindergarten), public service for individuals with disabilities and the elderly, public health (including nurses, nurse practitioners, nurses in a clinical setting, and full-time professionals engaged in health care practitioner occupations and health care support occupations, as such terms are defined by the Bureau of Labor Statistics), public education, public library services, school library or other school-based services; and
(B) Is not a business organized for profit, a labor union, or a partisan political organization.
(c) * * *
(1) * * *
(ii) Is employed full-time by a public service organization or serving in a full-time AmeriCorps or Peace Corps position—
(A) When the borrower makes the 120 monthly payments described under paragraph (c)(1)(iii) of this section;
(B) At the time of application for loan forgiveness; and
(C) At the time the remaining principal and accrued interest are forgiven.
20 U.S.C. 1070g,
The TEACH Grant program awards grants to students who intend to teach, to help meet the cost of their postsecondary education. In exchange for the grant, the student must agree to serve as a full-time teacher in a high-need field in a school serving low-income students, or as a full-time teacher in a high-need field for an educational service agency serving low-income students, for at least four academic years within eight years of ceasing enrollment at the institution where the student received the grant or, in the case of a student who receives a TEACH Grant at one institution and subsequently transfers to another institution and enrolls in another TEACH Grant-eligible program, within eight years of ceasing enrollment at the other institution. The eight-year period for completing the required four years of teaching does not include periods of suspension in accordance with § 686.41. If the student does not satisfy the service obligation, the amounts of the TEACH Grants received are treated as a Direct Unsubsidized Loan and must be repaid with interest charged from the date of each TEACH Grant disbursement. A TEACH Grant that has been converted to a Direct Unsubsidized Loan can be reconverted to a grant only in accordance with § 686.43.
The additions and revisions read as follows:
(b) * * *
Free application for Federal student aid (FAFSA).
(d) * * *
(i) When used with respect to any public elementary school or secondary school teacher in a State, means that—
(A) The teacher has obtained full State certification as a teacher (including certification obtained through alternative routes to certification) or passed the State teacher licensing examination, and holds a license to teach in such State, except that when used with respect to any teacher teaching in a public charter school, the term means that the teacher meets the requirements set forth in the State's public charter school law; and
(B) The teacher has not had certification or licensure requirements waived on an emergency, temporary, or provisional basis.
(ii) When used with respect to—
(A) An elementary school teacher who is new to the profession, means that the teacher—
(
(
(B) A middle or secondary school teacher who is new to the profession, means that the teacher holds at least a bachelor's degree and has demonstrated a high level of competency in each of the academic subjects in which the teacher teaches by—
(
(
(iii) When used with respect to an elementary, middle, or secondary school teacher who is not new to the profession, means that the teacher holds at least a bachelor's degree and—
(A) Has met the applicable standard in paragraph (ii) of this definition, which includes an option for a test; or
(B) Demonstrates competence in all the academic subjects in which the teacher teaches based on a highly objective uniform State standard of evaluation that—
(
(
(
(
(
(
(
(iv)(A) When used with respect to any public, or other non-profit private, elementary or secondary school teacher who is exempt from State certification requirements means that the teacher is permitted to and does satisfy rigorous subject knowledge and skills tests by taking competency tests in the applicable grade levels and subject areas.
(B) For purposes of paragraph (iv)(A) of this definition, the competency tests taken by a private school teacher must be recognized by five or more States for the purpose of fulfilling the highly qualified teacher requirements as described in paragraphs (i) through (iii) of this definition, and the score achieved by the teacher on each test must equal or exceed the average passing score of those five States.
To receive a grant under this part, a student must—
(a) Complete and submit the Free application for Federal student aid (FAFSA) in accordance with the instructions in the FAFSA;
(b) Complete and sign an agreement to serve or repay in accordance with § 686.12; and
(c) Provide any additional information requested by the Secretary and the institution.
(a)
(b)
(1) Provides that, for each TEACH Grant-eligible program for which the student received TEACH Grant funds, the grant recipient must fulfill a service obligation by performing creditable teaching service by serving—
(i) As a full-time teacher for a total of not less than four elementary or secondary academic years within eight years after the date the recipient ceased to be enrolled at the institution where the recipient received the TEACH Grant, or in the case of a student who receives a TEACH Grant at one institution and subsequently transfers to another institution and enrolls in another TEACH Grant-eligible program, within eight years of ceasing enrollment at the other institution;
(ii) In a low-income school as defined in § 686.2(d) and subject to the requirements under § 686.40(a)(3);
(iii) As a highly qualified teacher as defined in § 686.2(d); and
(iv) In a high-need field in the majority of classes taught during each elementary and secondary academic year;
(2) Requires the grant recipient to submit, upon completion of each year of service, documentation of the service in the form of a certification by a chief administrative officer of the school;
(3) Explains that the eight-year period for completing the service obligation does not include periods of suspension in accordance with § 686.41;
(4) Explains the conditions under which a TEACH Grant may be converted to a Direct Unsubsidized Loan, as described in § 686.43;
(5) Explains that, if a TEACH Grant is converted to a Direct Unsubsidized Loan, the grant recipient must repay the loan in full, with interest charged from the date of each TEACH Grant disbursement; and
(6) Explains that to avoid further accrual of interest as described in paragraph (b)(5) of this section, a grant recipient who decides not to teach in a qualified school or field, or who for any other reason no longer intends to satisfy the service obligation, may request that the Secretary convert his or her TEACH Grant to a Direct Unsubsidized Loan so that the grant recipient may begin repaying immediately, instead of waiting for the TEACH Grant to be converted to a loan under the condition described in § 686.43(a)(1)(ii); and
(7) Explains that a grant recipient whose TEACH Grant was converted to a Direct Unsubsidized Loan based on a request from the recipient in accordance with § 686.43(a)(1)(i) may request that the Secretary reconvert the recipient's loan to a TEACH Grant as provided in § 686.43(a)(8); and
(8) Requires the grant recipient to comply with the terms, conditions, and other requirements consistent with §§ 686.40 through 686.43 that the Secretary determines to be necessary.
(c)
(2) Unless paragraph (c)(3) of this section applies—
(i) In the case of a TEACH Grant recipient who withdraws from an institution before completing a baccalaureate or post-baccalaureate program of study for which he or she received TEACH Grants, but later re-enrolls at the same institution or at a different institution in either the same baccalaureate or post-baccalaureate program or in a different TEACH Grant-eligible baccalaureate or post-baccalaureate program prior to the date that his or her TEACH Grants are converted to Direct Unsubsidized Loans under § 686.43(a)(1)(ii) and receives additional TEACH Grants or the Secretary otherwise confirms that the grant recipient has re-enrolled in a TEACH Grant-eligible program, the Secretary adjusts the starting date of the period for completing the service obligation to begin when the grant recipient ceases to be enrolled at the institution where he or she has re-enrolled; and
(ii) In the case of a TEACH Grant recipient who withdraws from an institution before completing a master's degree program of study for which he or she received TEACH Grants, but later re-enrolls at the same institution or at a different institution in either the same master's degree program or in a different TEACH Grant eligible master's degree program prior to the date that his or her TEACH Grants are converted to Direct Unsubsidized Loans under § 686.43(a)(1)(ii) and receives additional TEACH Grants or the Secretary otherwise confirms that the grant recipient has re-enrolled in a TEACH Grant-eligible program, the Secretary adjusts the starting date of the period for completing the service obligation to begin when the grant recipient ceases to be enrolled at the institution where he or she has re-enrolled.
(3) In the case of a TEACH Grant recipient covered under paragraph (c)(2)(i) or (ii) of this section who completed one or more complete academic years of creditable teaching service as described in § 686.12(b) during the period between the grant recipient's withdrawal and re-enrollment—
(i) The Secretary does not adjust the starting date of the period for completing the service obligation unless requested by the recipient;
(ii) The completed teaching service counts toward satisfaction of the grant recipient's service obligation under paragraph (c)(2)(i) of this section; and
(iii) If the grant recipient continues to perform creditable teaching service after re-enrolling in a TEACH Grant-eligible program, the grant recipient may receive credit toward satisfaction of the service obligation for any complete academic years of creditable teaching performed while the recipient is concurrently enrolled in the TEACH Grant-eligible program only if the recipient does not request and receive a temporary suspension of the period for completing the service obligation under § 686.41(a)(1)(i).
(d)
(1) For teaching service performed before July 1, 2010, at the time the grant recipient begins teaching in that field, even if that field subsequently loses its high-need designation for that State; or
(2) For teaching service performed on or after July 1, 2010—
(i) At the time the grant recipient begins teaching in that field, even if that field subsequently loses its high-need designation for that State; or
(ii) At the time the grant recipient signed the agreement to serve or repay or received the TEACH Grant, even if that field subsequently loses its high-need designation for that State before the grant recipient begins teaching in that field.
(a) * * *
(3) The initial counseling must—
(i) Explain the terms and conditions of the TEACH Grant agreement to serve or repay as described in § 686.12;
(ii) Provide the grant recipient with information about how to identify low-income schools and documented high-need fields;
(iii) Inform the grant recipient that, for the teaching to count towards the recipient's service obligation, the high-need field in which he or she has prepared to teach must be—
(A) One of the six high-need fields listed in § 686.2; or
(B) A high-need field that is listed in the Nationwide List for the State in which the grant recipient teaches—
(
(
(iv) Inform the grant recipient of the opportunity to request a suspension of the eight-year period for completion of the agreement to serve or repay and the conditions under which a suspension may be granted in accordance with § 686.41;
(v) Explain to the grant recipient that conditions, such as conviction of a felony, could preclude the grant recipient from completing the service obligation;
(vi) Emphasize to the grant recipient that if the grant recipient fails or refuses to complete the service obligation contained in the agreement to serve or repay or any other condition of the agreement to serve or repay—
(A) The TEACH Grant must be repaid as a Direct Unsubsidized Loan; and
(B) The grant recipient will be obligated to repay the full amount of each grant and the accrued interest from each disbursement date;
(vii) Explain the circumstances, as described in § 686.43, under which a TEACH Grant will be converted to a Direct Unsubsidized Loan;
(viii) Explain that to avoid further accrual of interest as described in § 686.12(b)(4)(ii), a grant recipient who decides not to teach in a qualified school or field, or who for any other reason no longer intends to satisfy the service obligation, may request that the Secretary convert his or her TEACH Grant to a Direct Unsubsidized Loan that the grant recipient may begin repaying immediately, instead of waiting for the TEACH Grant to be converted to a loan under the condition described in § 686.43(a)(1)(ii);
(ix) Emphasize that, once a TEACH Grant is converted to a Direct Unsubsidized Loan, it may be reconverted to a grant only if—
(A) The Secretary determines, based on documentation provided by the recipient or in the Secretary's records, that the grant recipient was satisfying the service obligation as described in § 686.12 or that the grant was converted to a loan in error; or
(B) In the case of a grant recipient whose TEACH Grant was converted to a Direct Unsubsidized Loan in accordance with § 686.43(a)(1)(i), the grant recipient requests that the Secretary reconvert the loan to a grant and is determined to be eligible for reconversion in accordance with § 686.43(a)(8);
(x) Review for the grant recipient information on the availability of the Department's Federal Student Aid Ombudsman's office;
(xi) Describe the likely consequences of loan default, including adverse credit reports, garnishment of wages, Federal offset, and litigation; and
(xii) Inform the grant recipient of sample monthly repayment amounts based on a range of student loan indebtedness.
(b) * * *
(3) Subsequent counseling must—
(i) Review the terms and conditions of the TEACH Grant agreement to serve or repay as described in § 686.12;
(ii) Emphasize to the grant recipient that if the grant recipient fails or refuses to complete the service obligation contained in the agreement to serve or repay or any other condition of the agreement to serve or repay—
(A) The TEACH Grant must be repaid as a Direct Unsubsidized Loan; and
(B) The grant recipient will be obligated to repay the full amount of the grant and the accrued interest from the disbursement date;
(iii) Explain the circumstances, as described in § 686.43, under which a TEACH Grant will be converted to a Direct Unsubsidized Loan;
(iv) Explain that to avoid further accrual of interest as described in § 686.12(b)(4)(ii), a grant recipient who decides not to teach in a qualified school or field, or who for any other reason no longer intends to satisfy the service obligation, may request that the Secretary convert his or her TEACH Grant to a Direct Unsubsidized Loan that the grant recipient may begin repaying immediately, instead of waiting for the TEACH Grant to be converted to a loan under the condition described in § 686.43(a)(1)(ii);
(v) Emphasize that, once a TEACH Grant is converted to a Direct Unsubsidized Loan, it may be reconverted to a grant only if—
(A) The Secretary determines, based on documentation provided by the recipient or in the Secretary's records, that the grant recipient was satisfying the service obligation as described in § 686.12 or that the grant was converted to a loan in error; or
(B) In the case of a grant recipient whose TEACH Grant was converted to a Direct Unsubsidized Loan in accordance with § 686.43(a)(1)(i), the grant recipient requests that the Secretary reconvert the loan to a grant and is determined to be eligible for reconversion in accordance with § 686.43(a)(8); and
(vi) Review for the grant recipient information on the availability of the Department's Federal Student Aid Ombudsman's office.
(c) * * *
(4) The exit counseling must—
(i) Review the terms and conditions of the TEACH Grant agreement to serve or repay as described in § 686.12 and emphasize to the grant recipient that the four-year service obligation must be completed within the eight-year period described in § 686.12;
(ii) Explain the treatment of a grant recipient who withdraws from and then reenrolls in a TEACH Grant-eligible program at a TEACH Grant eligible institution as described in § 686.12(c);
(iii) Inform the grant recipient of the opportunity to request a suspension of the eight-year period for completion of the service obligation and the conditions under which a suspension may be granted in accordance with § 686.41;
(iv) Provide the grant recipient with information about how to identify low-income schools and documented high-need fields;
(v) Inform the grant recipient that, for the teaching to count towards the recipient's service obligation, the high-need field in which he or she has prepared to teach must be—
(A) One of the six high-need fields listed in § 686.2; or
(B) A high-need field that is listed in the Nationwide List for the State in which the grant recipient teaches—
(
(
(vi) Emphasize to the grant recipient that if the grant recipient fails or refuses to complete the service obligation contained in the agreement to serve or repay or fails to meet any other condition of the agreement to serve or repay—
(A) The TEACH Grant must be repaid as a Direct Unsubsidized Loan; and
(B) The grant recipient will be obligated to repay the full amount of each grant and the accrued interest from each disbursement date;
(vii) Explain to the grant recipient that the Secretary will, at least annually during the service obligation period, send the recipient the notice described in § 686.43(a)(2);
(viii) Explain the circumstances, as described in § 686.43, under which a TEACH Grant will be converted to a Direct Unsubsidized Loan;
(ix) Explain that to avoid further accrual of interest as described in § 686.12(b)(4)(ii), a grant recipient who decides not to teach in a qualified school or field, or who for any other reason no longer intends to satisfy the service obligation, may request that the Secretary convert his or her TEACH Grant to a Direct Unsubsidized Loan that the grant recipient may begin repaying immediately, instead of waiting for the TEACH Grant to be converted to a loan under the condition described in § 686.43(a)(1)(ii);
(x) Emphasize that once a TEACH Grant is converted to a Direct Unsubsidized Loan it may be reconverted to a grant only if—
(A) The Secretary determines, based on documentation provided by the recipient or in the Secretary's records, that the grant recipient was satisfying the service obligation as described in § 686.12 or that the grant was converted to a loan in error; or
(B) In the case of a grant recipient whose TEACH Grant was converted to a Direct Unsubsidized Loan in accordance with § 686.43(a)(1)(i), the grant recipient requests that the Secretary reconvert the loan to a grant and is determined to be eligible for reconversion in accordance with § 686.43(a)(8); and
(xi) Explain to the grant recipient how to contact the Secretary.
(5) If exit counseling is conducted through interactive electronic means, an institution must take reasonable steps to ensure that each grant recipient receives the counseling materials and participates in and completes the exit counseling.
(d)
(e)
(2) The conversion counseling—
(i) Informs the borrower of the average anticipated monthly repayment amount based on the borrower's indebtedness;
(ii) Reviews for the borrower available repayment plan options, including standard, graduated, extended, income-contingent, and income-based repayment plans, including a description of the different features of each plan and the difference in interest paid and total payments under each plan;
(iii) Explains to the borrower the options to prepay each loan, to pay each loan on a shorter schedule, and to change repayment plans;
(iv) Provides information on the effects of loan consolidation including, at a minimum—
(A) The effects of consolidation on total interest to be paid, and length of repayment;
(B) The effects of consolidation on a borrower's underlying loan benefits, including grace periods, loan forgiveness, cancellation, and deferment opportunities; and
(C) The options of the borrower to prepay the loan and to change repayment plans;
(v) Includes debt-management strategies that are designed to facilitate repayment;
(vi) Explains to the borrower the availability of Public Service Loan Forgiveness and teacher loan forgiveness;
(vii) Explains how the borrower may request reconsideration of the conversion of the TEACH Grant to a Direct Unsubsidized Loan if the borrower believes that the grant was converted to a loan in error, or if the borrower can provide documentation showing that he or she was satisfying the service obligation as described in § 686.12;
(viii) Describes the likely consequences of default, including adverse credit reports, delinquent debt collection procedures under Federal law, and litigation;
(ix) Informs the borrower of the grace period as described in § 686.43(c);
(x) Provides—
(A) A general description of the terms and conditions under which a borrower may obtain full or partial forgiveness or discharge of the loan (including under the Public Service Loan Forgiveness Program), defer repayment of the loan, or be granted a forbearance on repayment of the loan; and
(B) A copy, either in print or by electronic means, of the information the Secretary makes available pursuant to section 485(d) of the HEA;
(xi) Requires the borrower to provide current information concerning name, address, Social Security number, and driver's license number and State of issuance, as well as the borrower's permanent address;
(xii) Reviews for the borrower information on the availability of the Federal Student Aid Ombudsman's office;
(xiii) Informs the borrower of the availability of title IV loan information in the National Student Loan Data System (NSLDS) and how NSLDS can be used to obtain title IV loan status information;
(xiv) Provides a general description of the types of tax benefits that may be available to borrowers;
(xv) Informs the borrower of the amount of interest that has accrued on the converted TEACH Grants and explains that any unpaid interest will be capitalized at the end of the grace period; and
(xvi) In the case of a borrower whose TEACH Grant was converted to a Direct Unsubsidized Loan in accordance with § 686.43(a)(1)(i), explains that the borrower may request that the Secretary reconvert the loan to a grant as provided in § 686.43(a)(8).
(a) If a grant recipient is performing full-time teaching service in accordance with the agreement to serve or repay, or agreements to serve or repay if more than one agreement exists, the grant recipient must, upon completion of each of the four required elementary or secondary academic years of teaching service, provide to the Secretary documentation of that teaching service on a form approved by the Secretary and certified by the chief administrative officer of the school or educational service agency in which the grant recipient is teaching. The documentation must show that the grant recipient—
(1) Taught full-time in a low-income school as a highly qualified teacher as defined in § 686.2(d); and
(2)(i) Taught a majority of classes during the period being certified in any of the high-need fields of mathematics, science, a foreign language, bilingual education, English language acquisition, special education, or as a reading specialist; or
(ii) Taught a majority of classes during the period being certified in another high-need field designated by that State and listed in the Nationwide List, in accordance with § 686.12(d).
(b) For purposes of completing the service obligation, the elementary or secondary academic year may be counted as one of the grant recipient's four complete elementary or secondary academic years if the grant recipient completes at least one-half of the elementary or secondary academic year and the grant recipient's school employer considers the grant recipient to have fulfilled his or her contract requirements for the elementary or secondary academic year for the purposes of salary increases, tenure, and retirement if the grant recipient is unable to complete an elementary or secondary academic year due to—
(1) A condition that is a qualifying reason for leave under the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. 2612(a)(1) and (3));
(2) A call or order to Federal or State active duty, or Active Service as a member of a Reserve Component of the Armed Forces named in 10 U.S.C. 10101, or service as a member of the National Guard on full-time National Guard duty, as defined in 10 U.S.C. 101(d)(5); or
(3) Residing in or being employed in a federally declared major disaster area as defined in the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122(2)).
(c)(1) A grant recipient who taught in more than one qualifying school or qualifying educational service agency during an elementary or secondary academic year and demonstrates that the combined teaching service was the equivalent of full-time, as supported by the certification of one or more of the chief administrative officers of the schools or educational service agencies involved, is considered to have completed one elementary or secondary academic year of qualifying teaching.
(2) If the school or educational service agency at which the grant recipient is employed meets the requirements of a low-income school in the first year of the grant recipient's four elementary or secondary academic years of teaching and the school or educational service agency fails to meet those requirements in subsequent years, those subsequent years of teaching qualify for purposes of satisfying the service obligation described in § 686.12(b).
(a)(1) A grant recipient who has completed or who has otherwise ceased enrollment in a TEACH Grant-eligible program for which he or she received TEACH Grant funds may request a suspension from the Secretary of the eight-year period for completion of the service obligation based on—
(i) Enrollment in a program of study for which the recipient would be eligible for a TEACH Grant or in a program of study that has been determined by a State to satisfy the requirements for certification or licensure to teach in the State's elementary or secondary schools;
(ii) Receiving State-required instruction or otherwise fulfilling requirements for licensure to teach in a State's elementary or secondary schools;
(iii) A condition that is a qualifying reason for leave under the FMLA;
(iv) A call to order to Federal or State active duty or Active Service as a member of a Reserve Component of the Armed Forces named in 10 U.S.C. 10101, or service as a member of the National Guard on full-time National Guard duty, as defined in 10 U.S.C. 101(d)(5);
(v) Military orders for the recipient's spouse for—
(A) Deployment with a military unit or as an individual in support of a call to Federal or State Active Duty, or Active Service; or
(B) A change of permanent duty station from a location in the continental United States to a location outside of the continental United States or from a location in a State to any location outside of that State; or
(vi) Residing in or being employed in a federally declared major disaster area as defined in the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122(2)).
(2) A grant recipient may receive a suspension described in paragraphs (a)(1)(i) through (vi) of this section in one-year increments that—
(i) Does not exceed a combined total of three years under paragraphs (a)(1)(i) through (iii) of this section;
(ii) Does not exceed a total of three years under paragraph (a)(1)(iv) of this section;
(iii) Does not exceed a total of three years under paragraph (a)(1)(v) of this section; or
(iv) Does not exceed a total of three years under paragraph (a)(1)(vi) of this section.
(b) A grant recipient, or his or her representative in the case of a grant recipient who qualifies under paragraph (a)(1)(iv) or (vi) of this section, must apply for a suspension on a form approved by the Secretary, prior to being subject to any of the conditions under § 686.43(a)(1) through (5) that would cause the TEACH Grant to convert to a Direct Unsubsidized Loan.
(c) A grant recipient, or his or her representative in the case of a grant recipient who qualifies under paragraph (a)(1)(iv) or (vi) of this section, must provide the Secretary with documentation supporting the suspension request as well as current contact information including home address and telephone number.
(d) On a case-by-case basis, the Secretary may grant a temporary suspension of the period for completing the service obligation if the Secretary determines that a grant recipient was unable to complete a full academic year of teaching or begin the next academic year of teaching due to exceptional circumstances significantly affecting the operation of the school or educational service agency where the grant recipient was employed or the grant recipient's ability to teach.
(e) The Secretary notifies the grant recipient regarding the outcome of the application for suspension.
The revision reads as follows:
(b)
(2) If at any time the Secretary determines that the grant recipient does not meet the requirements of the three-year period following the discharge as described in 34 CFR 685.213(b)(7), the Secretary will notify the grant recipient that the grant recipient's obligation to satisfy the terms of the agreement to serve or repay is reinstated.
(3) The Secretary's notification under paragraph (b)(2) of this section will—
(i) Include the reason or reasons for reinstatement;
(ii) Provide information on how the grant recipient may contact the Secretary if the grant recipient has questions about the reinstatement or believes that the agreement to serve or repay was reinstated based on incorrect information; and
(iii) Inform the TEACH Grant recipient that he or she must satisfy the service obligation within the portion of the eight-year period that remained after the date of the discharge.
(4) If the TEACH Grant made to a recipient whose TEACH Grant agreement to serve or repay is reinstated is later converted to a Direct Unsubsidized Loan, the recipient will not be required to pay interest that accrued on the TEACH Grant disbursements from the date the agreement to serve or repay was discharged until the date the agreement to serve or repay was reinstated.
(a)(1) The TEACH Grant amounts disbursed to the recipient will be converted into a Direct Unsubsidized Loan, with interest accruing from the date that each grant disbursement was made and be collected by the Secretary in accordance with the relevant provisions of subpart A of 34 CFR part 685 if—
(i) The grant recipient, regardless of enrollment status, requests that the TEACH Grant be converted into a Direct Unsubsidized Loan because he or she has decided not to teach in a qualified school or educational service agency, or not to teach in a high-need field, or for any other reason; or
(ii) The grant recipient does not begin or maintain qualified employment within the timeframe that would allow that individual to complete the service obligation within the number of years required under § 686.12.
(2) At least annually during the service obligation period under § 686.12, the Secretary notifies the grant recipient of—
(i) The terms and conditions that the grant recipient must meet to satisfy the service obligation;
(ii) The requirement for the grant recipient to provide to the Secretary, upon completion of each of the four required elementary or secondary academic years of teaching service, documentation of that teaching service on a form approved by the Secretary and certified by the chief administrative officer of the school or educational service agency in which the grant recipient taught and emphasizes the necessity to keep copies of this information and copies of the recipient's own employment documentation;
(iii) The service years completed and the remaining timeframe within which the grant recipient must complete the service obligation;
(iv) The conditions under which the grant recipient may request a temporary suspension of the period for completing the service obligation;
(v) The conditions as described under paragraph (a)(1) of this section under which the TEACH Grant amounts disbursed to the recipient will be converted into a Direct Unsubsidized Loan;
(vi) The potential total interest accrued;
(vii) The process by which the recipient may contact the Secretary to request reconsideration of the conversion, the deadline by which the grant recipient must submit the request for reconsideration, and a list of the specific documentation required by the Secretary to reconsider the conversion; and
(viii) An explanation that to avoid further accrual of interest as described in § 686.12(b)(4)(ii), a grant recipient who decides not to teach in a qualified school or field, or who for any other reason no longer intends to satisfy the service obligation, may request that the Secretary convert his or her TEACH Grant to a Direct Unsubsidized Loan that the grant recipient may begin repaying immediately, instead of waiting for the TEACH Grant to be converted to a loan under the condition described in paragraph (a)(1)(ii) of this section.
(3) On or about 90 days before the date that a grant recipient's TEACH Grants would be converted to Direct Unsubsidized Loans in accordance with paragraph (a)(1)(ii) of this section, the Secretary notifies the grant recipient of the date by which the recipient must submit documentation showing that the recipient is satisfying the obligation.
(4) If the TEACH Grant amounts disbursed to a recipient are converted to a Direct Unsubsidized Loan, the Secretary notifies the recipient of the conversion and offers conversion counseling as described in § 686.32(e).
(5) Except as provided in paragraph (a)(8) of this section, if a grant recipient's TEACH Grant was converted to a Direct Unsubsidized Loan, the Secretary will reconvert the loan to a TEACH Grant based on documentation provided by the recipient or in the Secretary's records demonstrating that the recipient was satisfying the service obligation as described in § 686.12 or that the grant was converted to a loan in error.
(6) If a grant recipient who requests reconsideration demonstrates to the satisfaction of the Secretary that a TEACH Grant was converted to a loan in error, the Secretary—
(i) Reconverts the loan to a TEACH Grant;
(ii) Applies any academic years of qualifying teaching service that the grant recipient completed before or during the period when the grant was incorrectly in loan status toward the grant recipient's four-year service obligation requirement;
(iii) Upon reconversion of the loan to a TEACH Grant, provides the grant recipient with an additional period of time, equal to eight years minus the number of full academic years of teaching that the recipient completed prior to the reconversion of the loan to a TEACH Grant, including any years of qualifying teaching completed during the period when the TEACH Grant was incorrectly in loan status, to complete the remaining portion of the service obligation.
(iv) Ensures that the grant recipient receives credit for any payments that were made on the Direct Unsubsidized Loan that was reconverted to a TEACH Grant;
(v) Notifies the recipient of the reconversion to a grant and explains that the recipient is once again responsible for meeting all requirements of the service obligation under § 686.12; and
(vi) Requests deletion of any derogatory information reported to the consumer reporting agencies related to the grant while it was in loan status and furnishes a statement confirming that the grant was converted to a loan in error that the recipient may provide to creditors until the recipient's credit history has been corrected.
(7) If a grant recipient who requests reconsideration does not demonstrate to the satisfaction of the Secretary that a TEACH Grant was converted to a loan in error, the Secretary—
(i) Notifies the recipient that the loan cannot be converted to a TEACH Grant;
(ii) Explains the reason or reasons why the loan cannot be converted to a TEACH Grant; and
(iii) Explains how the recipient may contact the Federal Student Aid Ombudsman if he or she continues to believe that the TEACH Grant was converted to a loan in error.
(8) In the case of a grant recipient whose TEACH Grant was converted to a Direct Unsubsidized Loan in accordance with paragraph (a)(1)(i) of this section, the Secretary will reconvert the loan to a grant and restore the recipient's service obligation if—
(i) The grant recipient submits a request to the Secretary to reconvert the loan to a TEACH Grant;
(ii) Excluding any periods of suspension granted under § 686.41, there is sufficient time remaining for the grant recipient to complete the required four academic years of qualifying teaching service within eight years from the date the grant recipient ceased enrollment at the institution where the recipient received the grant or, in the case of a student who received a TEACH Grant at one institution and subsequently transferred to another institution and enrolled in another TEACH Grant-eligible program, within eight years from the date the recipient ceased enrollment at the other institution; and
(iii) In the case of a recipient who would not have sufficient time remaining to complete the service obligation within the eight-year period as described in paragraph (a)(8)(ii) of this section unless the recipient qualifies for a suspension under § 686.40, which may be granted retroactively, the recipient requests and is determined to be eligible for the suspension.
(9) A TEACH Grant recipient remains obligated to meet all requirements of the service obligation under § 686.12, even if the recipient does not receive the notices from the Secretary as described in paragraph (a)(2) of this section.
(b) A TEACH Grant that is converted to a loan, and is treated as a Direct Unsubsidized Loan, is not counted against the grant recipient's annual or aggregate loan limits under 34 CFR 685.203.
(c) A grant recipient whose TEACH Grant has been converted to a Direct Unsubsidized Loan—
(1) Enters a six-month grace period prior to entering repayment, and
(2) Is eligible for all of the benefits of the Direct Loan Program.
20 U.S.C. 1070a, 1070g, unless otherwise noted.
20 U.S.C. 1070c-1070c-4, unless otherwise noted.
(c) * * *
(5) Not involve the construction, operation, or maintenance of so much of any facility as is used or is to be used for sectarian instruction or as a place for religious worship; and
20 U.S.C. 1070a-21 to 1070a-28.
The revision reads as follows:
(b) When providing GEAR UP services to students attending private schools, the employee, individual, association, agency, or organization must be employed or contracted independently of the private school that the students attend, and of any other organization affiliated with the school, and that employment or contract must be under the control and supervision of the public agency.
Environmental Protection Agency (EPA).
Proposed action.
Based on the Environmental Protection Agency's (EPA's) review of the air quality criteria and the national ambient air quality standards (NAAQS) for photochemical oxidants including ozone (O
Comments must be received on or before October 1, 2020.
You may submit comments, identified by Docket ID No. EPA-HQ-OAR-2018-0279, by any of the following methods:
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The two virtual public hearings will be held on Monday, August 31, 2020, and Tuesday, September 1, 2020. The EPA will announce further details on the virtual public hearing website at
For information or questions about the public hearing, please contact Ms. Regina Chappell, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards (OAQPS) (Mail Code C304-03), Research Triangle Park, NC 27711; telephone: (919) 541-3650; email address:
Please note that the EPA is deviating from its typical approach because the President has declared a national emergency. Due to the current Centers for Disease Control and Prevention (CDC) recommendations, as well as state and local orders for social distancing to limit the spread of COVID-19, the EPA cannot hold in-person public meetings at this time. The EPA will begin pre-registering speakers for the hearings upon publication of this document in the
Follow the online instructions for submitting comments. Once submitted to the Federal eRulemaking Portal, comments cannot be edited or withdrawn. 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)
When submitting comments, remember to:
• Identify the action by docket number and other identifying information (subject heading,
• 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.
• 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.
All documents in the dockets pertaining to this action are listed on the
The following topics are discussed in this preamble:
This document presents the Administrator's proposed decisions in the current review of the primary (health-based) and secondary (welfare-based) O
This review of the O
In this review as in past reviews of the NAAQS for O
The proposed decision to retain the current primary standard, without revision, has been informed by key aspects of the currently available health effects evidence and conclusions contained in the ISA, quantitative exposure/risk analyses and policy evaluations presented in the PA, advice from the CASAC and public input received as part of this ongoing review. The health effects evidence newly available in this review, in conjunction with the full body of evidence critically evaluated in the ISA, continues to support prior conclusions that short-term O
The quantitative analyses of population exposure and risk, as well as policy considerations in the PA, also inform the proposed decision on the primary standard. The general approach and methodology for the exposure-based assessment used in this review is similar to that used in the last review. However, a number of updates and improvements have been implemented in this review which result in differences from the analyses in the prior review. These include a more recent period (2015-2017) of ambient air monitoring data in which O
Based on the current evidence and quantitative information, as well as consideration of CASAC advice and public comment thus far in this review, the Administrator proposes to conclude that the current primary standard is requisite to protect public health, with an adequate margin of safety, from effects of O
The proposed decision to retain the current secondary standard, without revision, has been informed by key aspects of the currently available welfare effects evidence and conclusions contained in the ISA, quantitative exposure/risk analyses and policy evaluations presented in the PA, advice from the CASAC and public input received as part of this ongoing review. The welfare effects evidence newly available in this review, in conjunction with the full body of evidence critically evaluated in the ISA, supports, sharpens and expands somewhat on the conclusions reached in the last review. Consistent with the evidence in the last review, the currently available evidence describes an array of O
Quantitative analyses of air quality and exposure, including use of the W126 index, as well as policy considerations in the PA, also inform the proposed decision on the secondary standard. For example, analyses of air quality monitoring data across the U.S., as well as in Class I areas, updated and expanded from analyses conducted in the last review, inform EPA's understanding of vegetation exposures in areas meeting the current standard. Based on the current evidence and quantitative information, as well as consideration of CASAC advice and public comment thus far in this review, the Administrator proposes to conclude that the current secondary standard is requisite to protect the public welfare from known or anticipated adverse effects of O
Two sections of the CAA govern the establishment and revision of the NAAQS. Section 108 (42 U.S.C. 7408) directs the Administrator to identify and list certain air pollutants and then to issue air quality criteria for those pollutants. The Administrator is to list those pollutants “emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare”; “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources”; and for which he “plans to issue air quality criteria. . . .” (42 U.S.C. 7408(a)(1)). Air quality criteria are intended 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 [a] pollutant in the ambient air. . . .” (42 U.S.C. 7408(a)(2)).
Section 109 [42 U.S.C. 7409] directs the Administrator to propose and promulgate “primary” and “secondary” NAAQS for pollutants for which air quality criteria are issued [42 U.S.C. 7409(a)]. Section 109(b)(1) defines primary standards as ones “the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.”
In setting primary and secondary standards that are “requisite” to protect public health and welfare, respectively, as provided in section 109(b), the EPA's task is to establish standards that are neither more nor less stringent than necessary. In so doing, the EPA may not consider the costs of implementing the standards. See generally,
The requirement that primary standards provide an adequate margin of safety was intended to address uncertainties associated with inconclusive scientific and technical information available at the time of standard setting. It was also intended to provide a reasonable degree of protection against hazards that research has not yet identified. See
In addressing the requirement for an adequate margin of safety, the EPA considers such factors as the nature and severity of the health effects involved, the size of the sensitive population(s), and the kind and degree of uncertainties. The selection of any particular approach to providing an adequate margin of safety is a policy choice left specifically to the Administrator's judgment. See
Section 109(d)(1) of the Act requires periodic review and, if appropriate, revision of existing air quality criteria to reflect advances in scientific knowledge concerning the effects of the pollutant on public health and welfare. Under the same provision, the EPA is also to periodically review and, if appropriate,
Section 109(d)(2) addresses the appointment and advisory functions of an independent scientific review committee. Section 109(d)(2)(A) requires the Administrator to appoint this committee, which is to be composed of “seven members including at least one member of the National Academy of Sciences, one physician, and one person representing State air pollution control agencies.” Section 109(d)(2)(B) provides that the independent scientific review committee “shall complete a review of the criteria . . . and the national primary and secondary ambient air quality standards . . . and shall recommend to the Administrator any new . . . standards and revisions of existing criteria and standards as may be appropriate. . . .” Since the early 1980s, this independent review function has been performed by the CASAC of the EPA's Science Advisory Board. A number of other advisory functions are also identified for the committee by section 109(d)(2)(C), which reads:
Such committee shall also (i) advise the Administrator of areas in which additional knowledge is required to appraise the adequacy and basis of existing, new, or revised national ambient air quality standards, (ii) describe the research efforts necessary to provide the required information, (iii) advise the Administrator on the relative contribution to air pollution concentrations of natural as well as anthropogenic activity, and (iv) advise the Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance of such national ambient air quality standards.
As previously noted, the Supreme Court has held that section 109(b) “unambiguously bars cost considerations from the NAAQS-setting process,” in
States are primarily responsible for ensuring attainment and maintenance of ambient air quality standards once the EPA has established them. Under sections 110 and 171 through 185 of the CAA, and related provisions and regulations, states are to submit, for the EPA's approval, state implementation plans (SIPs) that provide for the attainment and maintenance of such standards through control programs directed to sources of the pollutants involved. The states, in conjunction with the EPA, also administer the prevention of significant deterioration of air quality program that covers these pollutants.
Primary and secondary NAAQS were first established for photochemical oxidants in 1971 (36 FR 8186, April 30, 1971) based on the air quality criteria developed in 1970 (U.S. DHEW, 1970; 35 FR 4768, March 19, 1970). The EPA set both primary and secondary standards at 0.08 parts per million (ppm), as a 1-hour average of total photochemical oxidants, not to be exceeded more than one hour per year based on the scientific information in the 1970 air quality criteria document (AQCD). Since that time, the EPA has reviewed the air quality criteria and standards a number of times, with the most recent review being completed in 2015.
The EPA initiated the first periodic review of the NAAQS for photochemical oxidants in 1977. Based on the 1978 AQCD (U.S. EPA, 1978), the EPA published proposed revisions to the original NAAQS in 1978 (43 FR 26962, June 22, 1978) and final revisions in 1979 (44 FR 8202, February 8, 1979). At that time, the EPA changed the indicator from photochemical oxidants to O
The next periodic reviews of the criteria and standards for O
In the 1992 decision in that review, the EPA announced its intention to proceed rapidly with the next review of the air quality criteria and standards for O
In response to challenges to the EPA's 1997 decision, the D.C. Circuit remanded the 1997 O
Coincident with the continued litigation of the other issues, the EPA responded to the court's 1999 remand to consider the potential beneficial health effects of O
The EPA initiated the fourth periodic review of the air quality criteria and standards for O
In September 2009, the EPA announced its intention to reconsider the 2008 O
In light of the EPA's decision to consolidate the reconsideration with the review then ongoing, the D.C. Circuit proceeded with the litigation on the 2008 O
At the time of the court's decision, the EPA had already completed significant portions of its next statutorily required periodic review of the O
After publication of the final rule, a number of industry groups, environmental and health organizations, and certain states filed petitions for judicial review in the D.C. Circuit. The
In the August 2019 decision, the court additionally addressed arguments regarding considerations of background O
In May 2018, the Administrator directed his Assistant Administrators to initiate this current review of the O
Under the plan outlined in the IRP and consistent with revisions to the process identified by the administrator in his 2018 memo directing initiation of the review, the current review of the O
The CASAC discussed its review of both the draft ISA and the draft PA over three days at a public meeting in December 2019 (84 FR 58713, November 1, 2019).
The letters from the CASAC and public comment on the draft ISA and draft PA have informed completion of the final documents and further inform development of the Administrator's proposed decision in this review. Comments from the CASAC on the draft ISA have been considered by the EPA and led to a number of revisions in developing the final document. The CASAC review and the EPA's consideration of CASAC comments are described in Appendix 10, section 10.4.5 of the final ISA. In his reply to the CASAC letter conveying its review, “Administrator Wheeler noted, `for those comments and recommendations that are more significant or cross-cutting and which were not fully addressed, the Agency will develop a plan to incorporate these changes into future Ozone ISAs as well as ISAs for other criteria pollutant reviews' ” (ISA, p. 10-28; Wheeler, 2020). The ISA was completed and made available to the public in April 2020 (85 FR 21849, April 20, 2020). Based on the rigorous scientific approach utilized in its development, summarized in Appendix 10 of the final ISA, the EPA considers the final ISA 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 [O
The CASAC comments additionally provided advice with regard to the primary and secondary standards, as well as a number of comments intended to improve the PA. These comments were considered in completing that document, which was completed in May 2020 (85 FR 31182, May 22, 2020). The CASAC advice to the Administrator regarding the O
Materials upon which this proposed decision is based, including the documents described above, are available to the public in the docket for the review.
Ground level ozone concentrations are a mix of mostly tropospheric ozone and some stratospheric ozone. Tropospheric ozone is formed due to chemical interactions involving solar radiation and precursor pollutants including volatile organic compounds (VOCs) and nitrogen oxides (NO
For compliance and other purposes, state and local environmental agencies operate O
From a temporal perspective, the highest daily peak O
Monitoring data indicate long-term reductions in short-term O
Concentrations of O
This section presents the rationale for the Administrator's proposed decision to retain the current primary O
In presenting the rationale for the Administrator's proposed decision and its foundations, section II.A provides background and introductory information for this review of the primary O
The past and current approaches described below are both based, most fundamentally, on using the EPA's assessments of the current scientific evidence and associated quantitative analyses to inform the Administrator's judgment regarding a primary standard for photochemical oxidants that is requisite to protect the public health with an adequate margin of safety. The EPA's assessments are primarily documented in the ISA and PA, all of which have received CASAC review and public comment (84 FR 50836, September 26, 2019; 84 FR 58711, November 1, 2019; 84 FR 58713, November 1, 2019; 85 FR 21849, April 20, 2020; 85 FR 31182, May 22, 2020). In bridging the gap between the scientific assessments of the ISA and the judgments required of the Administrator in his decisions on the current standard, the PA evaluates policy implications of the evaluation of the current evidence in ISA and the quantitative exposure and risk analyses documented in appendices of the PA. In evaluating the public health protection afforded by the current standard, the four basic elements of the NAAQS (indicator, averaging time, level, and form) are considered collectively.
The final decision on the adequacy of the current primary standard is a public health policy judgment to be made by the Administrator. In reaching conclusions with regard to the standard, the decision will draw on the scientific information and analyses about health effects, population exposure and risks, as well as judgments about how to consider the range and magnitude of uncertainties that are inherent in the scientific evidence and analyses. This approach is based on the recognition that the available health effects evidence generally reflects a continuum, consisting of levels at which scientists generally agree that health effects are likely to occur, through lower levels at which the likelihood and magnitude of the response become increasingly uncertain. This approach is consistent with the requirements of the NAAQS provisions of the Clean Air Act and with how the EPA and the courts have historically interpreted the Act (summarized in section I.A. above). These provisions require the Administrator to establish primary standards that, in the judgment of the Administrator, are requisite to protect public health with an adequate margin of safety. In so doing, the Administrator seeks to establish standards that are neither more nor less stringent than necessary for this purpose. The Act does not require that primary standards be set at a zero-risk level, but rather at a level that avoids unacceptable risks to public
The subsections below provide background and introductory information. Background on the establishment of the current standard in 2015, including the rationale for that decision, is summarized in section II.A.1. This is followed, in section II.A.2, by an overview of the general approach for the current review of the 2015 standard. Following this introductory section and subsections, the subsequent sections summarize current information and analyses, including that newly available in this review. The Administrator's proposed conclusions on the standard set in 2015, based on the current information, are provided in section II.D.3.
The current primary standard was set in 2015 based on the scientific evidence and quantitative exposure and risk analyses available at that time, and on the Administrator's judgments regarding the available scientific evidence, the appropriate degree of public health protection for the revised standard, and the available exposure and risk information regarding the exposures and risk that may be allowed by such a standard (80 FR 65292, October 26, 2015). The 2015 decision revised the level of the primary standard from 0.075 to 0.070 ppm,
The health effects evidence base available in the 2015 review included extensive evidence from previous reviews as well as the evidence that had emerged since the prior review had been completed in 2008. This evidence base, spanning several decades, documents the causal relationship between exposure to O
With regard to the short-term respiratory effects that were the primary focus of the 2015 decision, the controlled human exposure studies were recognized to provide the most certain evidence indicating the occurrence of health effects in humans following specific O
The exposure and risk information available in the 2015 review included exposure and risk estimates for air quality conditions just meeting the then-existing standard, and also for air quality conditions just meeting potential alternative standards (U.S. EPA, 2014a, hereafter 2014 HREA). Estimates were derived for two exposure-based analyses, as well as for an analysis based on epidemiologic study associations. The first of the exposure-based analyses involved comparison of population exposure estimates at elevated exertion to exposure benchmark concentrations (exposures of concern).
The 2014 HREA developed exposure-based estimates for several population groups including all children and all adults. The type of exposure-based estimates that involved comparison of exposures to benchmarks was also derived for children with asthma and adults with asthma. The estimates of percentages of all children with exposures at or above benchmarks were virtually indistinguishable from the corresponding estimates for children with asthma.
In weighing the 2013 ISA conclusions with regard to the health effects evidence and making judgments regarding the public health significance of the quantitative estimates of exposures and risks allowed by the then-existing standard and potential alternative standards considered, as well as judgments regarding margin of safety, the Administrator considered the currently available information and commonly accepted guidelines or criteria within the public health community, including statements of the American Thoracic Society (ATS), an organization of respiratory disease specialists,
In the 2015 decision, the Administrator first addressed the adequacy of protection provided by the then-existing primary standard and decided that the standard should be revised. Considerations related to that decision are summarized in section II.A.1.a below. The considerations and decisions on the revisions to the then-existing standard in order to provide the requisite protection under the Act, including an adequate margin of safety, are summarized in section II.A.1.b.
In the decision that the primary standard that existed at the time of the last review should be revised, the Administrator at that time gave primary consideration to the evidence of respiratory effects from controlled human exposure studies, including those newly available in the review, and for which the exposure concentrations were at the lower end of those studied (80 FR 65343, October 26, 2015). This emphasis was consistent with comments from the CASAC at that time on the strength of this evidence (Frey, 2014b, p. 5). In placing weight on these studies, the Administrator took note of the variety of respiratory effects reported from the studies of healthy adults engaged in six 50-minute periods of moderate exertion within a 6.6-hour exposure to O
The 2013 ISA indicated that the pattern of effects observed across the range of exposures assessed in the controlled human exposure studies, increasing with severity at higher exposures, is coherent with (
In considering the exposure and risk information, the Administrator gave particular attention to the exposure-based comparison-to-benchmarks analysis, focusing on the estimates of exposures of concern for children, in 15 urban study areas for air quality conditions just meeting the then-current standard. Consistent with the finding that larger percentages of children than adults were estimated to experience exposures at or above benchmarks, the Administrator focused on the results for all children and for children with asthma, noting that the results for these two groups, in terms of percent of the population group, are virtually indistinguishable (2014 HREA, sections 5.3.2, 5.4.1.5 and section 5F-1). In considering these estimates, she placed the greatest weight on estimates of two or more days with occurrences of exposures at or above the benchmarks, in light of her increased concern about the potential for adverse responses with repeated occurrences of such exposures. In particular, she noted that the types of effects shown to occur following exposures to O
In considering the exposure estimates from the 2014 HREA with regard to public health implications, the Administrator concluded that the exposures and risks projected to remain upon meeting the then-current (75 ppb) standard could reasonably be judged to be important from a public health perspective. In particular, this conclusion was based on her judgment that it is appropriate to set a standard that would be expected to eliminate, or almost eliminate, the occurrence of exposures, while at moderate exertion, at or above 70 and 80 ppb (80 FR 65346, October 26, 2015). In addition, given that the average percent of children estimated to experience two or more days with exposures at or above the 60 ppb benchmark approaches 10% in some urban study areas (on average across the analysis years), the Administrator concluded that the then-current standard did not incorporate an adequate margin of safety against the potentially adverse effects that could occur following repeated exposures at or above 60 ppb (80 FR 65345-46, October 26, 2015). Further, although the Administrator recognized increased uncertainty in and placed less weight on the HREA estimates for lung function risk and for the epidemiologic-study-based risk analyses, she found them supportive of a conclusion that the O
In consideration of all of the above, as well as the CASAC advice, which included the unanimous recommendation “that the Administrator revise the current primary ozone standard to protect public health” (Frey, 2014b, p. 5),
With regard to the most appropriate indicator for a revised standard, the Administrator considered findings and assessments in the 2013 ISA and 2014 PA, as well as advice from the CASAC and public comment. These include the finding that O
The 8-hour averaging time for the primary O
While giving foremost consideration to the adequacy of public health protection provided by the combination of all elements of the standard, including the form, the Administrator additionally considered the appropriateness of retaining the
The 2015 decision to set the level of the revised primary O
In considering the degree of protection provided by a revised primary O
While she was less confident that adverse effects would occur following exposures to O
In the context of considering a standard with a level of 70 ppb, the Administrator additionally considered the lung function risk estimates, epidemiologic evidence and quantitative estimates based on information from the epidemiologic studies. Although she placed less weight on these estimates and information in light of associated uncertainties,
In summary, given her consideration of the evidence, exposure and risk information, advice from the CASAC, and public comments, the Administrator in 2015 judged a revised primary standard of 70 ppb, in terms of the 3-year average of annual fourth-highest daily maximum 8-hour average O
To evaluate whether it is appropriate to consider retaining the current primary O
Similarly, in this review, we draw on the current evidence and quantitative assessments of exposure pertaining to
The information summarized here is based on our scientific assessment of the health effects evidence available in this review; this assessment is documented in the ISA and its policy implications are further discussed in the PA. In this review, as in past reviews, the health effects evidence evaluated in the ISA for O
More than 1600 studies are newly available and considered in the ISA, including more than 1000 health studies (ISA, Appendix 10, Figure 10-2). As in the last review, the key evidence comes from the body of controlled human exposure studies that document respiratory effects in people exposed for short periods (6.6 to 8 hours) during quasi-continuous exercise. Policy implications of the currently available evidence are discussed in the PA (as summarized in section II.D.1 below). The subsections below briefly summarize the following aspects of the evidence: The nature of O
The evidence base available in the current review includes decades of extensive evidence that clearly describes the role of O
The current evidence continues to support our prior conclusion that short-term O
As in the last review, the currently available evidence in this review supports the conclusion of a causal relationship between short-term O
Respiratory responses observed in human subjects exposed to O
Within the evidence base from controlled human exposure studies, the majority of studies involve healthy adult subjects (generally 18 to 35 years), although there are studies involving subjects with asthma, and a limited number of studies, generally of durations shorter than four hours, involving adolescents and adults older than 50 years. A summary of salient observations of O
The evidence is most well established with regard to the effects, reversible with the cessation of exposure, that are associated with short-term exposures of several hours. For example, the evidence indicates a rapid recovery from O
With regard to airway inflammation and the potential for repeated occurrences to contribute to further effects, 2013 ISA indicates that O
The extensive evidence base for O
With regard to an increased susceptibility to infectious diseases, the experimental animal evidence continues to indicate, as described in the 2013 ISA and past AQCDs, the potential for O
Although the long-term exposure conditions that may contribute to further respiratory effects are less well understood, the conclusion based on the current evidence base remains that the relationship for such exposure conditions with respiratory effects is likely to be causal (ISA, section IS.4.3.2). Most notably, experimental studies, including with nonhuman infant primates, have provided evidence relating O
Overall, the respiratory effects evidence newly available in this review is generally consistent with the evidence base in the last review (ISA, Appendix 3, section 3.1.4). A few recent studies provide insights in previously unexamined areas, both with regard to human study groups and animal models for different effects, while other studies confirm and provide depth to prior findings with updated protocols and techniques (ISA, Appendix 3, sections 3.1.11 and 3.2.6). Thus, our current understanding of the respiratory effects of O
One aspect of the evidence that has been augmented concerns pulmonary function in adults older than 50 years of age. Previously available evidence in this age group indicated smaller O
The strongest evidence of O
As was the case for the evidence available in the last review, the currently available evidence for health effects other than those of O
The ISA finds the evidence for metabolic effects sufficient to conclude that the relationship with short-term O
The ISA additionally concludes that the evidence is suggestive of, but not sufficient to infer, a causal relationship between long-term O
With regard to cardiovascular effects and total (nonaccidental) mortality and short-term O
For other health effect categories, conclusions in this review are largely unchanged from those in the last review. The available evidence for reproductive and developmental effects, as well as for effects on the nervous system, is suggestive of, but not sufficient to infer, a causal relationship, as was the case in the last review (ISA, section IS.4.3.6.5 and Table IS-1). Additionally, the evidence is inadequate to determine if a causal relationship exists between O
The public health implications of the evidence regarding O
With regard to O
The clinical significance of individual responses to O
In addition to the difference in severity or magnitude of specific effects in healthy people, the same reduction in FEV
Decisions made in past reviews of the O
With regard to pulmonary function decrements, the earlier ATS statement concluded that “small transient changes in forced expiratory volume in 1 s[econd] (FEV
The information newly available in this review has not altered our understanding of human populations at particular risk of health effects from O
With respect to people with asthma, the limited evidence from controlled human exposure studies (which are primarily in adult subjects) indicates similar magnitude of FEV
Children, and also outdoor adult workers, are at increased risk largely due to their generally greater time spent outdoors while at elevated exertion rates (including in the summer when O
Older adults have also been identified as being at increased risk. That identification, based on the assessment in the 2013 ISA, was based largely on studies of short-term O
The ISA in the last review concluded that the information available at the time for low socioeconomic status (SES) as a factor associated with the risk of O
The magnitude and characterization of a public health impact is dependent upon the size and characteristics of the populations affected, as well as the type or severity of the effects. As summarized above, a key population most at risk of health effects associated with O
The age group for which the prevalence documented by these data is greatest is children aged five to 19 years old, with 9.7% of children aged five to
Children under the age of 18 account for 16.7% of the total U.S. population, with 6.2% of the total population being children under 5 years of age (U.S. Census Bureau, 2019). Based on a prior analysis of data from the Consolidated Human Activity Database (CHAD)
About one third of workers were required to perform outdoor work in 2018 (Bureau of Labor Statistics, 2019). Jobs in construction and extraction occupations and protective service occupations required more than 90% of workers to spend at least part of their workday outdoors (Bureau of Labor Statistics, 2017). Other employment sectors, including installation, maintenance and repair occupations and building and grounds cleaning and maintenance operations, also had a high percentage of employees who spent part of their workday outdoors (Bureau of Labor Statistics, 2017). These occupations often include physically demanding tasks and involve increased ventilation rates which when combined with exposure to O
As at the time of the last review, the EPA's conclusions regarding exposure concentrations of O
The current evidence, including that newly available in this review, does not alter the scientific conclusions reached in the last review on exposure duration and concentrations associated with O
The extensive evidence base for O
The magnitude of respiratory response (
The exposure conditions (
In the 6.6-hour studies, the group means of O
For shorter exposure periods, ranging from one to two hours, higher exposure concentrations, ranging up from 80 ppb up to 400 ppb, have been studied (ISA, section 3.1; 2013 ISA, section 6.2.1.1; 2006 AQCD; PA, Appendix 3A, Table 3A-3). In these studies, some exposure protocols have included heavy intermittent or very heavy continuous exercise, which results in 2-3 times greater ventilation rate than in the prolonged (6.6- or 8-hour) exposure studies, which only incorporate moderate quasi-continuous exercise.
With regard to the epidemiologic studies reporting associations between O
Among the epidemiologic studies finding a statistically significant positive relationship of short- or long-term O
With regard to the experimental animal evidence and exposure conditions associated with respiratory effects, concentrations are generally much greater than those examined in the controlled human exposure studies, summarized in section II.B.1 above, and higher than concentrations commonly occurring in ambient air in areas of the U.S. where the current standard is met. In addition to being true for the various rodent studies, this is also true for the small number of early life studies in nonhuman primates that reported O
With regard to short-term O
Our consideration of the scientific evidence available in the current review, as at the time of the last review, is informed by results from quantitative analyses of estimated population exposure and consequent risk of respiratory effects. These analyses in this review have focused on exposure-based risk analyses. Estimates from such analyses, particularly the comparison of daily maximum exposures to benchmark concentrations reflecting exposures at which respiratory effects have been observed in controlled human exposure studies, were most informative to the Administrator's decision in the last review (as summarized in section II.A.1 above). This largely reflected the conclusion that “controlled human exposure studies provide the most certain evidence indicating the occurrence of health effects in humans following specific O
The longstanding evidence continues to demonstrate a causal relationship between short-term O
The analyses of O
The eight study areas represent a variety of circumstances with regard to population exposure to short-term concentrations of O
With regard to the objectives for the analysis approach, the analyses and the use of a case study approach are intended to provide assessments of an air quality scenario just meeting the current standard for a diverse set of areas and associated exposed populations. These analyses are not intended to provide a comprehensive national assessment (PA, section 3.4.1). Nor is the objective to present an exhaustive analysis of exposure and risk in the areas that currently just meet the current standard and/or of exposure and risk associated with air quality adjusted to just meet the current standard in areas that currently do not meet the standard. Rather, the purpose is to assess, based on current tools and information, the potential for exposures and risks beyond those indicated by the information available at the time the standard was established. Accordingly, use of this approach recognizes that capturing an appropriate diversity in study areas and air quality conditions (that reflect the current standard scenario)
Consistent with the health effects evidence in this review (summarized in section II.B.1 above), the focus of the quantitative assessment is on short-term exposures of individuals in the population during times when they are breathing at an elevated rate. Exposure and risk are characterized for four population groups. Two are populations of school-aged children, aged 5 to 18 years:
The approach for this analysis incorporates an array of models and data (PA, section 3.4.1). Ambient air O
Ambient air O
Population exposures were estimated using the EPA's Air Pollutant Exposure model (APEX) version 5, which probabilistically generates a large sample of hypothetical individuals from population demographic and activity pattern databases and simulates each individual's movements through time and space to estimate their time series of O
The activity patterns of individuals are an important determinant of their exposure (2013 ISA, section 4.4.1). By incorporating individual activity patterns,
As in the last review, the quantitative analyses for this review uses the APEX model estimates of population exposures for simulated individuals breathing at elevated rates
The general approach and methodology for the exposure-based assessment used in this review is similar to that used in the last review. However, a number of updates and improvements, related to the air quality, exposure, and risk aspects of the assessment, have been implemented in this review which result in differences from the analyses in the prior review (Appendices 3C and 3D). These include (1) a more recent period (2015-2017) of ambient air monitoring data in which O
The exposure-to-benchmark comparison characterizes the extent to which individuals in at-risk populations could experience O
The lung function risk analysis provides estimates of the extent to which individuals in the populations could experience decrements in lung function. Estimates were derived for risk of experiencing a day with a lung function decrement at or above three different magnitudes,
The E-R functions used for estimating the risk of lung function decrements at or above three sizes were developed from the individual study subject measurements of O
The MSS model, also used for estimating the risk of lung function decrements, was developed using the extensive database from controlled human exposure studies that has been compiled over the past several decades, and biological concepts based on that evidence (McDonnell et al., 2012; McDonnell et al., 2013). The model mathematically estimates the magnitude of FEV1 decrement as a function of inhaled O
The comparison-to-benchmark analysis (involving comparison of daily maximum 7-hour average exposure concentrations that coincide with 7-hour average elevated ventilation rates at or above the target to benchmark concentrations) provides perspective on the extent to which the air quality being assessed could be associated with discrete exposures to O
Uncertainty in the current exposure and risk analyses was characterized using a largely qualitative approach adapted from the World Health Organization (WHO) approach for characterizing uncertainty in exposure assessment (WHO, 2008) augmented by several quantitative sensitivity analyses for key aspects of the assessment approach (described in detail in Appendix 3D of the PA).
Several areas of uncertainty are identified as particularly important to considering the exposure and risk estimates. There are also several areas where new or updated information have reduced uncertainties since the last review. Some of these areas pertain to estimates for both types of risk metrics, and some pertain more to one type of estimate
An overarching and important area of uncertainty, which remains from the last review, and is important to our consideration of the exposure and risk analysis results relates to the underlying health effects evidence base. This analysis focuses on the evidence base described as providing the “strongest evidence” of O
Aspects of the analytical design that pertain to both exposure-based risk metrics include the estimation of ambient air O
With regard to the aspects of the two risk metrics, there are some uncertainties that apply to the estimation of lung function risk and not to the comparison-to-benchmarks analysis. Both lung function risk approaches utilized in the risk analyses incorporate some degree of extrapolation beyond the exposure circumstances evaluated in the controlled human exposure studies. This is the case in different ways and with differing impacts for the two approaches. One way in which both approaches extrapolate beyond the exposure studies concerns estimates of lung function risk derived for exposure concentrations below those represented in the evidence base. The approaches provide this in recognition of the potential for lung function decrements to be greater in unstudied at-risk population groups than is evident from the available studies. Accordingly, the uncertainty in the lung function risk estimates increases with decreasing exposure concentration and is particularly increased for concentrations below those evaluated in controlled human exposure studies.
There are differences between the two lung function risk approaches in how they extrapolate beyond the controlled human exposure study conditions and in the impact on the estimates (with somewhat smaller differences for multiple day estimates).
Many of the uncertainties previously identified as part of the 2014 HREA as unique to the MSS model also remain as important uncertainties in the current assessment. For example, the extrapolation of the MSS model age parameter down to age 5 (from the age range of the 18- to 35-year old study subjects to which the model was fit) is an important uncertainty given that children are an at-risk population in this assessment. There is also uncertainty in estimating the frequency and magnitude of lung function decrements as a result of the statistical form and parameters used for the MSS model inter- and intra-individual variability terms (PA, Appendix 3D, section 3D.3.4). As a whole, the differences between the two lung function risk approaches and the estimates generated by these approaches indicate appreciably greater uncertainty for the MSS model estimates than the E-R function estimates (PA, section 3.4.4
Two updates to the analysis approach since the 2014 HREA reduce uncertainty in the results. The first is related to the approach to identifying when simulated individuals may be at moderate or greater exertion. The approach used in the current review reduces the potential for overestimation of the number of people achieving the associated ventilation rate, an important uncertainty identified in the 2014 HREA. Additionally, the current analysis focuses on exposures of 7 hours duration to better represent the 6.6-hour exposures from the controlled human exposure studies (than the 8-hour exposure durations used for the 2014 HREA and prior assessments).
In summary, among the multiple uncertainties and limitations in data and tools that affect the quantitative estimates of exposure and risk and their interpretation in the context of considering the current standard, several are particularly important, some of which are similar to those recognized in the last review. These include uncertainty related to estimation of the concentrations in ambient air for the current standard and the additional air quality scenarios; lung function risk approaches that rely, to varying extents, on extrapolating from controlled human exposure study conditions to lower exposure concentrations, lower ventilation rates, and shorter durations; and characterization of risk for particular population groups that may be at greatest risk, particularly for people with asthma, and particularly children. Areas in which uncertainty has been reduced by new or updated information or methods include the use of more refined air quality modeling based on selection of study areas with design values near the current standard and a more recent model and model inputs, as well as updates to several inputs to the exposure model including changes to the exposure duration to better match those in the controlled human exposure studies and an alternate approach to characterizing periods of activity while at moderate or greater exertion for simulated individuals.
Exposure and risk estimates for the eight urban study areas are summarized here, with a focus on the estimates for air quality conditions adjusted to just meet the current standard. The analyses in this review include two types of risk estimates for the 3-year simulation in each study area: (1) The number and percent of simulated people experiencing exposures at or above the particular benchmark concentrations of interest in a year, while breathing at elevated rates; and (2) the number and percent of people estimated to experience at least one O
The benchmark-based risk metric results are summarized in terms of the percent of the simulated populations of all children and children with asthma estimated to experience at least one day per year
Given the recognition of people with asthma as an at-risk population and the relatively greater amount and frequency of time spent outdoors at elevated exertion of children, we focus here on the estimates for children, including children with asthma. Under air quality conditions just meeting the current standard, approximately less than 0.1% of any area's children with asthma, on average, were estimated to experience any days per year with a 7-hour average exposure at or above 80 ppb, while breathing at elevated rates (Table 2). With regard to the 70 ppb benchmark, the study areas' estimates for children with asthma are as high as 0.7 percent (0.6% for all children), on average across the 3-year period, and range up to 1.0% in a single year. Approximately 3% to nearly 9% of each study area's simulated children with asthma, on average across the 3-year period, are estimated to experience one or more days per year with a 7-hour average exposure at or above 60 ppb. This range is very similar for the populations of all children.
Regarding multiday occurrences, the analyses indicate that no children would be expected to experience more than a single day with a 7-hour average exposure at or above 80 ppb in any year simulated in any location (Table 2). For the 70 ppb benchmark, the estimate is less than 0.1% of any area's children (on average across 3-year period), both those with asthma and all children. The estimates for the 60 ppb benchmark are slightly higher, with up to 3% of
These estimates for the analyses in the current review, while based on conceptually similar approaches to those used in the 2014 HREA, also reflect the updates and revisions to those approaches that have been implemented since that time. The range of estimates across the study areas from the current assessment for air quality conditions simulated to just meet the current standard are similar, although the upper end of the ranges is slightly lower in some cases, to the estimates for these same populations in the 2014 HREA. For example, for air quality conditions just meeting the now-current standard, the 2014 HREA estimated 0.1 to 1.2% of all children across the study areas to experience, on average, at least one day with exposure at or above 70 ppb, while at elevated ventilation, compared to the comparable estimates of 0.2 to 0.6% from the current analyses (PA, Appendix 3D, section 3D.3.2.4, Table 3D-38). There are a number of differences between the quantitative modeling and analyses performed in the current assessment and the 2014 HREA that likely contribute to the small differences in estimates between the two assessments (
In framing these same exposure estimates from the perspective of estimated protection provided by the current standard, these results indicate that, in the single year with the highest concentrations across the 3-year period, 99% of the population of children with asthma would not be expected to experience such a day with an exposure at or above the 70 ppb benchmark; 99.9% would not be expected to experience such a day with exposure at or above the 80 ppb benchmark. The estimates, on average across the 3-year period, indicate that over 99.9%, 99.3% and 91.2% of the population of children with asthma would not be expected to experience a day with a 7-hour average exposure while at elevated ventilation that is at or above 80 ppb, 70 ppb and 60 ppb, respectively (Table 2, above). Further, more than approximately 97% of all children or children with asthma are estimated to be protected against multiple days of exposures at or above 60 ppb. These estimates are of a magnitude roughly consistent with the level of protection that was described in establishing the current standard in 2015 (PA, section 3.1).
With regard to lung function risk estimated using the population-based E-R function approach, the estimates for children with asthma are similar to those for all children, but with the higher end of the ranges for the eight study areas being just slightly higher in some cases (Table 3). For example, on average between 0.5 to 0.9% (and at most 1.0%) of children with asthma are estimated to have at least one day per year with a 15% (or larger) FEV
Regarding multi-day occurrences, the analyses find that very few children are estimated to experience 15% (or larger) FEV
In reaching proposed conclusions on the current O
The approach to reviewing the primary standard is consistent with requirements of the provisions of the CAA related to the review of the NAAQS and with how the EPA and the courts have historically interpreted the CAA. As discussed in section I.A above, these provisions require the Administrator to establish primary standards that, in the Administrator's judgment, are requisite (
The proposed decision on the adequacy of the current primary standard described below is a public health policy judgment by the Administrator that draws on the scientific evidence for health effects, quantitative analyses of population exposures and/or health risks, and judgments about how to consider the uncertainties and limitations that are inherent in the scientific evidence and quantitative analyses. The four basic elements of the NAAQS (
The main focus of the policy-relevant considerations in the PA is consideration of the question: Does the currently available scientific evidence- and exposure/risk-based information support or call into question the adequacy of the protection afforded by the current primary O
With regard to the support in the current evidence for O
The currently available evidence on the health effects of O
The current evidence does not alter our understanding of populations at increased risk from health effects of O
As in the last review, the most certain evidence of health effects in humans elicited by specific O
Respiratory effects continue to be the effects for which the experimental information regarding exposure concentrations eliciting effects is well established, as summarized here and in section II.B.3 above. Such information allows for characterization of potential population risk associated with O
Within the evidence base for the newly identified category of metabolic effects, the evidence derives largely from experimental animal studies of exposures appreciably higher than those for the 6.6-hour human exposure studies along with a small number of epidemiologic studies. The PA notes that, as discussed in section II.B.3 above, these studies do not prove to be informative to our consideration of exposure circumstances likely to elicit health effects.
Thus, the PA finds that the currently available evidence regarding O
The PA concludes that important uncertainties identified in the health effects evidence at the time of the last review generally remain in the current evidence. Although the evidence clearly demonstrates that short-term O
With regard to less well studied population groups, the PA notes that the majority of the available studies have generally involved healthy young adult subjects, although there are some studies involving subjects with asthma, and a limited number of studies, generally of very short durations (
Other areas of uncertainty concerning the potential influence of O
Further, although there remains uncertainty in the evidence with regard to the potential role of exposures to O
With regard to the evidence for other categories of health effects, its support for a causal relationship with O
As at the time of the last review, consideration of the scientific evidence in the current review is informed by results from a newly performed quantitative analysis of estimated population exposure and associated risk. The overarching PA consideration regarding these results is whether they alter the overall conclusions from the previous review regarding health risk associated with exposure to O
The exposure and risk analyses conducted for this review, as was true for those conducted for the last review, develop exposure and risk estimates for study area populations of children with asthma, as well as the populations of all children in each study area. The primary analyses focus on exposure and risk associated with air quality that might occur in an area under conditions that just meet the current standard. These study areas reflect different combinations of different types of sources of O
In considering the exposure and risk analyses available in this review, the PA notes that there are a number of ways in which the current analyses update and improve upon those available in the last review. These include a number of improvements to input data and modeling approaches summarized in section II.C.1 above. As in prior reviews, exposure and risk are estimated from air quality scenarios designed to just meet an O
The PA also notes the array of air quality and exposure circumstances represented by the eight study areas. As summarized in section II.C.1 above, the areas fall into seven of the nine climate regions in the continental U.S. The population sizes of the associated metropolitan areas range in size from approximately 2.4 to 8 million and vary in population demographic characteristics. While there are uncertainties and limitations associated with the exposure and risk estimates, as noted in II.C.2, the PA considers the factors recognized here to contribute to their usefulness in informing the current review.
The PA gives primary attention to results for the comparison-to-benchmarks analysis in recognition of the relatively lesser uncertainty of these results (than the lung function risk estimates), and also of the broader characterization of respiratory effects that they can inform, as noted in section II.C above. Similarly, the results for this risk metric also received greater emphasis in the last review and were a focus in establishing the current standard in 2015. The estimates across all study areas from the current review are generally similar to those reported across all study areas assessed in the last review, particularly for estimates for two or more occurrences at or above a benchmark, and for the 80 ppb benchmark (Table 4). For consistency with the estimates highlighted in the 2015 review (
The PA additionally compares the estimates derived in the current analyses with those from the 2014 HREA in the last review, finding them to be quite similar.
Overall, the comparison-to-benchmarks estimates are generally similar to those which were the focus in the 2015 decision on establishing the current standard. For example, in the 2015 decision to set the standard level at 70 ppb, the Administrator took note of several findings for the air quality scenarios for this level, noting that “a revised standard with a level of 70 ppb is estimated to eliminate the occurrence of two or more exposures of concern to O
In considering the public health implications of the estimated occurrence of exposures of different magnitudes, the PA considers the magnitude or severity of the effects associated with the estimated exposures as well as their adversity, the size of the population estimated to experience exposures associated with such effects, as well as consideration for such implications in previous NAAQS decisions and ATS policy statements (as summarized in section II.B.2 above). As an initial matter, the PA considers the severity of responses associated with the exposure and risk estimates, taking note of the health effects evidence for the different benchmark concentrations and judgments made with regard to the severity of these effects in the last review. As in the last review, the PA recognizes the greater prevalence of more severe lung function decrements among study subjects exposed to 80 ppb or higher concentrations compared to 60 or 70 ppb exposure concentrations, as well as the prevalence of other effects such as respiratory symptoms. In so doing, the PA notes that such exposures are appropriately considered to be associated with adverse respiratory effects consistent with past and recent ATS position statements. Studies of 6.6-hour controlled human exposures, with quasi-continuous exercise, to the lowest benchmark concentration of 60 ppb have found small but statistically significant O
The PA additionally takes note of the greater significance of estimates for multiple occurrences of exposures at or above these benchmarks consistent with the evidence, as has been recognized in multiple past O
As in the last review, while the exposure-based analyses include two types of metrics, the quantitative exposure and risk analyses results in which the PA expresses the greatest confidence are estimates from the comparison-to-benchmarks analysis, as discussed in section II.C above. In light of the conclusions that people with asthma and children are at-risk populations for O
While recognizing greater uncertainty and accordingly less confidence in the lung function risk estimates, the PA noted the results based on the E-R model that estimated 0.2 to 0.3% of children with asthma, on average across the 3-year design period are estimated to experience one or more days with a lung function decrement at or above 20%, and 0.5 to 0.9% to experience one or more days with a decrement at or above 15% (Table 3). In a single year, the highest estimate is 1.0% of this at-risk population expected to experience one or more days with a decrement at or above 15%. The corresponding estimate for two or more days is 0.6% (Table 3).
As summarized in section II.B.2 above, the size of the at-risk population (people with asthma, particularly children) in the U.S. is substantial. Nearly 8% of the total U.S. population and 8.4% of U.S. children have asthma.
The exposure and risk analyses inherently recognize that variability in human activity patterns (where people go and what they do) is key to understanding the magnitude, duration, pattern, and frequency of population exposures. For O
In considering the public health implications of the exposure and risk estimates across the eight study areas, the PA notes that the purpose for the study areas is to illustrate exposure circumstances that may occur in areas that just meet the current standard, and not to estimate exposure and risk associated with conditions occurring in those specific locations today. To the extent that concentrations in the specific areas simulated may differ from others across the U.S., the exposure and risk estimates for these areas are informative to consideration of potential exposures and risks in areas existing across the U.S. that have air quality and population characteristics similar to the study areas assessed, and that have ambient concentrations of O
The exposure and risk estimates for the study areas assessed for this review reflect differences in exposure circumstances among those areas and illustrate the exposures and risks that might be expected to occur in other areas with such circumstances under air quality conditions that just meet the current standard (or the alternate
Collectively, the PA finds that the evidence and exposure and risk-based considerations provide the basis for its conclusion that consideration should be given to retaining the current primary standard, without revision (PA, section 3.5.4). Accordingly, and in light of this conclusion that it is appropriate to consider the current primary standard to be adequate, the PA did not identify any potential alternative primary standards for consideration in this review (PA, section 3.5.4). In reaching these conclusions, the PA additionally notes that considerations raised in the PA are important to conclusions and judgments to be made by the Administrator concerning the public health significance of the evidence and of the exposure and risk estimates. Such judgments that are common to NAAQS decisions include those related to public health implications of effects of differing severity (75 FR 355260 and 35536, June 22, 2010; 76 FR 54308, August 31, 2011; 80 FR 65292, October 26, 2015). Such judgments also include those concerning the public health significance of effects at exposures for which evidence is limited or lacking, such as effects at the lower benchmark concentrations considered and lung function risk estimates associated with exposure concentrations lower than those tested or for population groups not included in the controlled exposure studies. The PA recognizes that such public health policy judgments will weigh in the Administrator's decision in this review with regard to the adequacy of protection afforded by the current standard.
The CASAC has provided advice on the adequacy of the current primary O
The comments from the CASAC also took note of uncertainties that remain in this review of the primary standard and identified a number of additional areas for future research and data gathering that would inform the next review of the primary O
Based on the large body of evidence concerning the health effects and potential public health impacts of exposure to O
In the discussion below, the Administrator considers first the evidence base on health effects associated with exposure to photochemical oxidants, including O
As an initial matter, the Administrator recognizes the continued support in the current evidence for O
With regard to the extensive evidence base for health effects of O
The Administrator recognizes that this strong evidence base continues to demonstrate a causal relationship between short-term O
With regard to populations at increased risk of O
With regard to ISA conclusions that differ from those in the last review, the Administrator recognizes the new conclusions regarding metabolic effects, cardiovascular effects and mortality (as summarized in section II.B.1 above; ISA, Table ES-1). As an initial matter, he takes note of the fact that while the 2013 ISA considered the evidence available in the last review sufficient to conclude that the relationships for short-term O
With regard to exposures of interest for respiratory effects, the Administrator notes the 6.6 hour controlled human exposure studies involving exposure,
With regard to these 6.6-hour controlled human exposure studies, although two such studies have assessed exposures at the lower concentration of 40 ppb, statistically significant responses have not been reported from those exposures. Studies at the next highest concentration studied (a 60 ppb target) have reported decrements in lung function (assessed by FEV
In this review, as in the last review, the Administrator recognizes some uncertainty, reflecting limitations in the evidence base, with regard to the exposure levels eliciting effects (as well as the severity of the effects) in some population groups not included in the available controlled human exposure studies, such as children and individuals with asthma. In so doing, the Administrator recognizes that the controlled human exposure studies, primarily conducted in healthy adults, on which the depth of our understanding of O
In light of these uncertainties, as well as those associated with the exposure and risk analyses, the Administrator notes that, as is the case in NAAQS reviews in general, the extent to which the current primary O
As at the time of the last review, the exposure and risk estimates developed from modeling exposures to O
In this review of the 2015 standard, the Administrator takes note of several aspects of the rationale by which it was established. As summarized in section II.A.1 above, the decision in the last review considered the breadth of the O
As recognized above, people with asthma, and children, are key populations at increased risk of respiratory effects related to O
In considering the exposure and risk analyses available in this review, the Administrator first notes that there are a number of ways in which the current analyses update and improve upon those available in the last review (as summarized in sections II.C.1 and II.D.1 above). For example, the Administrator notes that the air quality scenarios in the current assessment are based on the combination of updated photochemical modeling with more recent air quality data that include O
While the Administrator notes reduced uncertainty in several aspects
In considering the exposure and risk estimates, the Administrator also notes that the eight study areas assessed represent an array of air quality and exposure circumstances reflecting such variation that occurs across the U.S. The areas fall into seven of the nine climate regions represented in the continental U.S., with populations of the associated metropolitan areas ranging in size from approximately 2.4 to 8 million and varying in demographic characteristics. The Administrator considers such factors as those identified here to contribute to their usefulness in informing the current review. As a result of such variation in exposure-related factors, the eight study areas represent an array of exposure circumstances, and accordingly, illustrate the magnitude of exposures and risks that may be expected in areas of the U.S. that just meet the current standard but that may differ in ways affecting population exposures of interest. The Administrator finds the estimates from these analyses to be informative to consideration of potential exposures and risks associated with the current standard and to his judgment on the adequacy of protection provided by the current standard.
Taking into consideration related information, limitations and uncertainties, such as those recognized above, the Administrator considers the exposure estimates across the eight study areas (with their array of exposure conditions) for air quality conditions just meeting the current standard. Given the greater severity of responses reported in controlled human exposures, with quasi-continuous exercise, at and above 73 ppb, the Administrator finds it appropriate to focus first on the higher two benchmark concentrations (which at 70 and 80 ppb are, respectively, slightly below and above this level) and the estimates for one-or-more-day occurrences. In so doing, he notes that across all eight study areas, less than 1% of children with asthma (and also of all children) are estimated to experience, while breathing at an elevated rate, a daily maximum 7-hour exposure per year at or above 70 ppb, on average across the 3-year period, with a maximum of about 1% for the study area with the highest estimates in the highest single year (Table 2). Further, the percentage (for both population groups) for at least one day with such an exposure at or above 80 ppb is less than 0.1%, as an average across the 3-year period (and 0.1% or less in each of the three years simulated across the eight study areas). No simulated children were estimated to experience more than a single such day with an exposure at or above the 80 ppb benchmark (Table 2). The Administrator recognizes these estimates to indicate a very high level of protection from exposures that been found in controlled human exposure studies to elicit lung function decrements of notable magnitude (
The Administrator additionally considers the estimated occurrences of days that include lower 7-hour exposures, while at elevated exertion (
The exposure analysis estimates indicate fewer than 1% to just over 3% of children with asthma (just under 3% of all children), on average across the 3-year period to be expected to experience two or more days with an exposure at
In reaching his proposed conclusion, the Administrator additionally takes note of the comments and advice from the CASAC, including the CASAC conclusion that the newly available evidence does not substantially differ from that available in the last review, and the associated conclusion expressed by part of the CASAC, that the current evidence supports retaining the current standard. He also notes that another part of the CASAC indicated its agreement with the prior CASAC comments on the 2014 draft PA, in which the prior CASAC opined that a standard set at 70 ppb may not provide an adequate margin of safety (Cox, 2020, p. 1). With regard to the latter view (that referenced 2014 comments from the prior CASAC), the Administrator additionally notes that the 2014 advice from the prior CASAC also concluded that the scientific evidence supported a range of standard levels that included 70 ppb and recognized the choice of a level within its recommended range to be “a policy judgment under the statutory mandate of the Clean Air Act” (Frey, 2014, p. ii). The Administrator considers these points to provide additional context for the comments of the prior CASAC that were cited by part of the current CASAC in its review of the draft PA in this review, as noted above.
In reflecting on all of the information currently available, the Administrator considers the extent to which the currently available information might indicate support for a less stringent standard. He recognizes the advice from the CASAC, which generally indicates support for retaining the current standard without revision or for revision to a more stringent level based on additional consideration of the margin of safety for at-risk populations. He notes that the CASAC advice did not convey support for a less stringent standard. He additionally considers the current exposure and risk estimates for the air quality scenario for a design value just above the level of the current standard (at 75 ppb), in comparison to the scenario for the current standard, as summarized in section II.D.1 above. In so doing, he finds the markedly increased estimates of exposures to the higher benchmarks under air quality for a higher standard level to be of concern and indicative of less than the requisite protection (Table 2). Thus, in light of the considerations raised here, including the need for an adequate margin of safety, the Administrator proposes to judge that a less stringent standard would not be appropriate to consider.
The Administrator additionally considers whether it would be appropriate to consider a more stringent standard that might be expected to result in reduced O
In light of all of the above, including advice from the CASAC, the Administrator finds the current exposure and risk analysis results to describe appropriately strong protection of at-risk populations from O
As recognized above, the protection afforded by the current standard can only be assessed by considering its elements collectively, including the standard level of 70 ppb, the averaging time of eight hours and the form of the annual fourth-highest daily maximum
Having reached the proposed decision described here based on interpretation of the health effects evidence, as assessed in the ISA, and the quantitative analyses presented in the PA; the evaluation of policy-relevant aspects of the evidence and quantitative analyses in the PA; the advice and recommendations from the CASAC; public comments received to date in this review; and the public health policy judgments described above, the Administrator recognizes that other interpretations, assessments and judgments might be possible. Therefore, the Administrator solicits comment on the array of issues associated with review of this standard, including public health and science policy judgments inherent in the proposed decision, as described above, and the rationales upon which such views are based.
This section presents the rationale for the Administrator's proposed decision to retain the current secondary O
In presenting the rationale for the Administrator's proposed decision and its foundations, section III.A provides background and introductory information for this review of the secondary O
As is the case for all such reviews, this review of the current secondary O
The final decision on the adequacy of the current secondary standard is a public welfare policy judgment to be made by the Administrator. In reaching conclusions with regard to the standard, the decision will draw on the scientific information and analyses about welfare effects, environmental exposure and risks, and associated public welfare significance, as well as judgments about how to consider the range and magnitude of uncertainties that are inherent in the scientific evidence and analyses. This approach is based on the recognition that the available evidence generally reflects a continuum that includes ambient air exposures at which scientists generally agree that effects are
The subsections below provide background and introductory information. Background on the establishment of the current standard in 2015, including the rationale for that decision, is summarized in section III.A.1. This is followed, in section III.A.2, by an overview of the general approach for the current review of the 2015 standard. Following this introductory section and subsections, the subsequent sections summarize current information and analyses, including that newly available in this review. The Administrator's proposed conclusions on the standard set in 2015, based on the current information, are provided in section III.D.3
The current standard was set in 2015 based on the scientific and technical information available at that time, as well as the Administrator's judgments regarding the available welfare effects evidence, the appropriate degree of public welfare protection for the revised standard, and available air quality information on seasonal cumulative exposures that may be allowed by such a standard (80 FR 65292, October 26, 2015). With the 2015 decision, the Administrator revised the level of the secondary standard for photochemical oxidants, including O
The welfare effects evidence base available in the 2015 review included more than fifty years of extensive research on the phytotoxic effects of O
The 2015 decision was a public welfare policy judgment made by the Administrator, which drew upon the available scientific evidence for O
The decision was based on a thorough review in the 2013 ISA of the scientific information on O
Consistent with the general approach routinely employed in NAAQS reviews, the initial consideration in the 2015 review of the secondary standard was
In considering the public welfare protection provided by the then-current standard, the Administrator gave primary consideration to an analysis of cumulative seasonal exposures in or near Class I areas
As noted across past reviews of O
Based on all of these considerations, and taking into consideration CASAC advice and public comment, the Administrator concluded that the protection afforded by the then-current standard was not sufficient and that the standard needed to be revised to provide additional protection from known and anticipated adverse effects to public welfare, related to effects on sensitive vegetation and ecosystems, most particularly those occurring in Class I areas, and also in other areas set aside by states, tribes and public interest groups to provide similar benefits to the public welfare for residents on those lands, as well as for visitors to those areas. In so doing, she further noted that a revised standard would provide increased protection for other growth-related effects, including relative yield loss (RYL) of crops, reduced carbon storage, and types of effects for which it is more difficult to determine public welfare significance, as well as other welfare effects of O
Consistent with the approach employed for considering the adequacy of the then-current secondary standard, the approach for considering revisions
In light of the judicial remand of the 2008 secondary O
As mentioned above, the Administrator considered the use of a cumulative seasonal exposure index (the W126 index) for purposes of assessing potential public welfare risks, and similarly, for assessing potential protection achieved against such risks on a national scale. In consideration of conclusions of the 2013 ISA and 2014 PA, as well as advice from the CASAC and public comments, this W126 index was defined as a maximum, seasonal (3-month), 12-hour index (80 FR 65404, October 26, 2015).
Based on a number of considerations, the Administrator recognized greater confidence in judgments related to public welfare impacts based on a 3-year average metric than a single-year metric, and consequently concluded it to be appropriate to use a seasonal W126 index averaged across three years for judging public welfare protection afforded by a revised secondary standard (80 FR 65404, October 26, 2015). For example, the Administrator was mindful of both the strengths and limitations of the evidence and of the information on which to base her judgments with regard to adversity of effects on the public welfare.
In reaching a conclusion on the amount of public welfare protection from the presence of O
With regard to the extensive evidence of welfare effects of O
Thus, and in light of the extensive evidence base in this regard, the Administrator focused on trees and associated ecosystems in identifying the appropriate level of protection for the secondary standard. Accordingly, the Administrator found the estimates of tree seedling growth impacts (in terms of RBL) associated with a range of W126-based index values developed from the E-R functions for 11 tree species (referenced above) to be appropriate and useful for considering the appropriate public welfare protection objective for a revised standard (80 FR 65391-92, Table 4, October 26, 2015). The Administrator also incorporated into her considerations the broader evidence base associated with forest tree seedling biomass loss, including other less quantifiable effects of potentially greater public welfare significance. That is, in drawing on these RBL estimates, the Administrator recognized she was not simply making judgments about a specific magnitude of growth effect in seedlings that would be acceptable or unacceptable in the natural environment. Rather, though mindful of associated uncertainties, the Administrator used the RBL estimates as a surrogate or proxy for consideration of the broader array of related vegetation and ecosystem effects of potential public welfare significance that include effects on growth of individual sensitive species and extend to ecosystem-level effects, such as community composition in natural forests, particularly in protected public lands, as well as forest productivity (80 FR 65406, October 26, 2015). This broader array of vegetation-related effects included those for which public welfare implications are more significant but for which the tools for quantitative estimates were more uncertain.
In using the RBL estimates as a proxy, and in consideration of CASAC advice; strengths, limitations and uncertainties in the evidence; and the linkages of growth effects to larger population, community and ecosystem impacts, the Administrator considered it appropriate to focus on a standard that would generally limit cumulative exposures to those for which the median RBL estimate for seedlings of the 11 species with robust and established E-R functions would be somewhat below 6% (80 FR 65406-07, October 26, 2015). In focusing on cumulative exposures associated with a median RBL estimate somewhat below 6%, the Administrator considered the relationships between W126-based exposure and RBL in the studied species (presented in the final PA and proposal document), noting that the median RBL estimate was 6% for a cumulative seasonal W126 exposure index of 19 ppm-hrs (80 FR 65391-92, Table 4, October 26, 2015).
The Administrator's decisions regarding the revisions to the then-current standard that would appropriately achieve these public welfare protection objectives were based on extensive air quality analyses that extended from the then most recently available data (monitoring year 2013) back more than a decade (80 FR 65408, October 26, 2015; Wells, 2015). These analyses evaluated the cumulative seasonal exposure levels in locations meeting different alternative levels for a standard of the existing form and averaging time, indicating reductions in cumulative exposures associated with air quality meeting lower levels of a standard of the existing form and averaging time. Based on these analyses, the Administrator judged that the desired level of public welfare protection could be achieved with a secondary standard having a revised level in combination with the existing form and averaging time (80 FR 65408, October 26, 2015).
The air quality analyses described the occurrences of 3-year W126 index values of various magnitudes at monitor locations where O
In summary, the Administrator judged that the revised standard would protect natural forests in Class I and other similarly protected areas against an array of adverse vegetation effects, most notably including those related to effects on growth and productivity in sensitive tree species. The Administrator additionally judged that the revised standard would be sufficient to protect public welfare from known or anticipated adverse effects. This judgment by the Administrator appropriately recognized that the CAA does not require that standards be set at a zero-risk level, but rather at a level that reduces risk sufficiently so as to protect the public welfare from known or anticipated adverse effects. Thus, based on the conclusions drawn from the air quality analyses which demonstrated a strong, positive relationship between the 8-hour and W126 metrics and the findings that indicated the significant amount of control provided by the fourth-high metric, the evidence base of O
To evaluate whether it is appropriate to consider retaining the now current secondary O
Similarly, in this review we draw on the current evidence and quantitative analyses of air quality and exposure pertaining to the welfare effects of O
This review of the secondary O
The information summarized here is based on our scientific assessment of the welfare effects evidence available in this review; this assessment is documented in the ISA
More than 1600 studies are newly available and considered in the ISA, including more than 500 studies on welfare effects (ISA, Appendix 10, Figure 10-2). While expanding the evidence for some effect categories, studies on growth-related effects, a key group of effects from the last review, are largely consistent with the evidence that was previously available. Policy implications of the currently available evidence are discussed in the PA (as summarized in section III.D.1 below). The subsections below briefly summarize the following aspects of the evidence: The nature of O
The welfare effects evidence base available in the current review includes more than fifty years of extensive research on the phytotoxic effects of O
The evidence newly available in this review supports, sharpens and expands somewhat on the conclusions reached in the last review (ISA, Appendices 8 and 9). Consistent with the evidence in the last review, the currently available evidence describes an array of O
The current evidence base, including a wealth of longstanding evidence, supports the conclusion of causal relationships between O
As in the last review, the strongest evidence and the associated findings of causal or likely causal relationships with O
The current evidence, consistent with the decades of previously available evidence, documents and characterizes visible foliar injury in many tree, shrub, herbaceous, and crop species as an effect of exposure to O
The currently available evidence, consistent with that in past reviews, indicates that “visible foliar injury usually occurs when sensitive plants are exposed to elevated ozone concentrations in a predisposing environment,” with a major factor for such an environment being the amount of soil moisture available to the plant (ISA, Appendix 8, p. 8-23; 2013 ISA, section 9.4.2). Further, the significance of O
Although visible injury is a valuable indicator of the presence of phytotoxic concentrations of ozone in ambient air, it is not always a reliable indicator of other negative effects on vegetation [
Consistent with conclusions in past reviews, the evidence, extending back several decades, continues to document the detrimental effects of O
Studies involving experimental field sites have also reported effects on measures of plant reproduction, such as effects on seeds (reduced weight, germination, and starch levels) that could lead to a negative impact on species regeneration in subsequent years, and bud size that might relate to a delay in spring leaf development (ISA, Appendix 8, section 8.4; 2013 ISA, section 9.4.3; Darbah et al., 2007, Darbah et al., 2008). A more recent laboratory study reported 6-hour daily O
With regard to agricultural crops, the current evidence base, as in the last review, is sufficient to infer a causal relationship between O
The evidence base for trees includes a number of studies conducted at the Aspen free-air carbon-dioxide and ozone enrichment (FACE) experiment site in Wisconsin (that operated from 1998 through 2011) and also available in the last review (ISA, IS.5.1 and Appendix 8, section 8.1.2.1; 2013 ISA, section 9.2.4). These studies, which occurred in a field setting (more similar to natural forest stands than open-top-chamber studies), reported reduced tree growth when grown in single or three species stands within 30-m diameter rings and exposed over one or more years to elevated O
With regard to tree mortality, the 2013 ISA did not include a determination of causality (ISA, Appendix 8, section 8.4). While the then-available evidence included studies identifying ozone as a contributor to tree mortality, which contributed to the 2013 conclusion regarding O
Ozone-induced effects at the scale of the whole plant have the potential to translate to effects at the ecosystem scale, such as reduced terrestrial productivity and carbon storage, and altered terrestrial community composition, as well as impacts on ecosystem functions, such as belowground biogeochemical cycles and ecosystem water cycling. For example, under the relevant exposure conditions, O
The effects of O
Additional vegetation-related effects with implications beyond individual plants include the effects of O
Ozone welfare effects also extend beyond effects on vegetation and associated biota due to it being a major greenhouse gas and radiative forcing agent.
Lastly, the evidence regarding tropospheric O
The secondary standard is to “specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator . . . is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air” (CAA, section 109(b)(2)). As recognized in prior reviews, the secondary standard is not meant to protect against all known or anticipated O
The categories of effects identified in the CAA to be included among welfare effects are quite diverse,
More specifically, judgments regarding public welfare significance in the last two O
The 2008 and 2015 decisions recognized that the degree to which effects on vegetation in specially protected areas, such as those identified above, may be judged adverse involves considerations from the species level to the ecosystem level, such that judgments can depend on the intended use for, or service (and value) of, the affected vegetation, ecological receptors, ecosystems and resources and the significance of that use to the public welfare (73 FR 16496, March 27, 2008; 80 FR 65377, October 26, 2015). Uses or services provided by areas that have been afforded special protection can flow in part or entirely from the vegetation that grows there. For example, ecosystem services are the “benefits that people derive from functioning ecosystems” (Costanza et al., 2017; ISA, section IS.5.1).
The different types of effects on vegetation discussed in section III.B.1 above differ with regard to aspects important to judging their public welfare significance. In the case of crop yield loss, such judgments depend on considerations related to the heavy management of agriculture in the U.S. Judgments for other categories of effects may generally relate to considerations regarding forested areas, including specifically those forested areas that are not managed for harvest. For example, effects on tree growth and reproduction, and also visible foliar injury, have the potential to be significant to the public welfare through impacts in Class I and other areas given special protection in their natural/existing state, although they differ in how they might be significant. Additionally, as described in section III.B.1 above, O
Depending on the type and location of the affected ecosystem, however, a broader array of services benefitting the public can be affected in a broader array of areas as well. For example, other services valued by people that can be affected by reduced tree growth, productivity and associated forest effects include aesthetic value, food, fiber, timber, other forest products, habitat, recreational opportunities, climate and water regulation, erosion control, air pollution removal, and desired fire regimes (PA, Figure 4-2; ISA, section IS.5.1; 2013 ISA, sections 9.4.1.1 and 9.4.1.2). In considering such services in past reviews, the Agency has given particular attention to effects in natural ecosystems, indicating that a protective standard, based on consideration of effects in natural ecosystems in areas afforded special protection, would also “provide a level of protection for other vegetation that is used by the public and potentially affected by O
Depending on its severity and spatial extent, visible foliar injury, which affects the physical appearance of the plant, also has the potential to be significant to the public welfare through impacts in Class I and other similarly protected areas. In cases of widespread and severe injury during the growing season (particularly when sustained across multiple years, and accompanied by obvious impacts on the plant canopy), O
The geographic extent of protected areas that may be vulnerable to public welfare effects of O
Public welfare implications associated with visible foliar injury might further be considered to relate largely to effects on scenic and aesthetic values. The available information does not yet address or describe the relationships expected to exist between some level of injury severity (
While, as noted above, public welfare benefits of forested lands can be particular to the type of area in which the forest occurs, some of the potential public welfare benefits associated with forest ecosystems are not location dependent. A potentially extremely valuable ecosystem service provided by forested lands is carbon sequestration or storage (ISA, section IS.5.1.4 and Appendix 8, section 8.8.3; 2013 ISA, section 2.6.2.1 and p. 9-37).
With regard to agriculture-related effects, the EPA has recognized other complexities related to areas and plant species that are heavily managed to obtain a particular output (such as commodity crops or commercial timber production). For example, the EPA has recognized that the degree to which O
Categories of effects newly identified as likely causally related to O
In summary, several considerations are recognized as important to judgments on the public welfare significance of the array of welfare effects of different O
The welfare effects identified in section III.B.1 above vary widely with regard to the extent and level of detail of the available information that describes the O
The long-standing body of vegetation effects evidence includes a wealth of information on aspects of O
In the last several reviews, based on the then-available evidence, as well as advice from the CASAC, the EPA's scientific assessments have focused on the use of a cumulative, seasonal
Across the last several decades, several different exposure metrics have been evaluated, primarily for their ability to summarize ambient air O
Based on extensive review of the published literature on different types of E-R metrics, including comparisons between metrics, the EPA has generally focused on cumulative, concentration-weighted indices of exposure, recognizing them as the most appropriate biologically based metrics to consider in this context (1996 AQCD; 2006 AQCD; 2013 ISA). Quantifying exposure in this way has been found to improve the explanatory power of E-R models for growth and yield over using indices based only on mean and peak exposure values (2013 ISA, section 2.6.6.1, p. 2-44). The most well-analyzed datasets in such evaluations are two detailed datasets established two decades ago, one for seedlings of 11 tree species and one for 10 crops, described further in section III.B.3.a(ii) below (
Among the studies newly available in this review, no new exposure indices for assessing effects on vegetation growth or other physiological process parameters have been identified. The SUM06, AOTx (
The first step in calculating the seasonal W126 index for a specific year, as described and considered in this review, is to sum the weighted hourly O
The W126 index value for a specific year is the maximum sum of the monthly index values for three consecutive months within a calendar year (
Across the array of O
The 11 tree species for which robust and well-established E-R functions for RBL are available are black cherry, Douglas fir, loblolly pine, ponderosa pine, quaking aspen, red alder, red maple, sugar maple, tulip poplar, Virginia pine, and white pine (PA, Appendix 4A; 2013 ISA, section 9.6).
In total, the 11 species-specific composite E-R functions are based on 51 tree seedling studies or experiments (PA, Appendix 4A, section 4A.1.1). For six of the 11 species, this function is based on just one or two studies (
With regard to crops, established E-R functions are available for 10 crops: Barley, field corn, cotton, kidney bean, lettuce, peanut, potato, grain sorghum, soybean and winter wheat (PA, Appendix 4A, section 4A.1; ISA, Appendix 8, section 8.13.2). Studies available since the last review for seven soybean cultivars support conclusions from prior studies that of similarity of current soybean cultivar sensitivity compared to the earlier genotypes from which the soybean E-R functions were (ISA, Appendix 8, section 8.13.2).
Newly available studies that investigated growth effects of O
With regard to visible foliar injury, as with the evidence available in the last review, the current evidence “continues to show a consistent association between visible injury and ozone exposure,” while also recognizing the role of modifying factors such as soil moisture and time of day (ISA, section IS.5.1.1). The current ISA, in concluding that the newly available information is consistent with conclusions of the 2013 ISA, also summarizes several recently available studies that continue to document that O
Several studies of the extensive USFS field-based dataset of visible foliar injury incidence in forests across the U.S.
Although studies of the incidence of visible foliar injury in national forests, wildlife refuges, and similar areas have often used cumulative indices (
Some studies of visible foliar injury incidence data have investigated the role of peak concentrations quantified by an O
The established significant role of higher or peak O
In a more recent study (by Wang et al. [2012]) that is cited in the current ISA, a statistical modeling analysis was performed on a subset of the years of data that were described in Smith (2012). This analysis, which involved 5,940 data records from 1997 through 2007 from the 24 northeast and north central states, tested a number of models for their ability to predict the presence of visible foliar injury (a nonzero biosite score), regardless of severity, and generally found that the type of O
The available information related to O
In an extension of analyses of this dataset developed in the last review, the presentation in the PA
While recognizing limitations in the dataset,
Overall, the dataset described in the PA generally indicates the risk of injury, and particularly injury considered at least light, moderate or severe, to be higher at the highest W126 index values, with appreciable variability in the data for the lower bins (PA, Appendix 4C). This appears to be consistent with the conclusions of the studies of detailed quantitative analyses, summarized above, that the pattern is stronger at higher O
Dose modeling or flux models (referenced in section III.B.3.a(i) above, have also been considered for quantifying O
With regard to radiative forcing and subsequent climate effects associated with the global tropospheric abundance of O
While tropospheric O
With regard to tree mortality (the evidence for which the 2013 ISA did not assess with regard to its support for inference of a causal relationship with O
With regard to the two categories of welfare effects involving insects (for which there are new causal determinations in this review), there are multiple limitations and uncertainties regarding characterization of exposure conditions that might elicit effects and the comprehensive characterization of the effects (ISA, p. IS-91, Appendix 8, section 8.6.3). For example, with regard to alteration of herbivore growth and reproduction, although “[t]here are multiple studies demonstrating ozone effects on fecundity and growth in insects that feed on ozone-exposed vegetation”, “no consistent directionality of response is observed across studies and uncertainties remain in regard to different plant consumption methods across species and the exposure conditions associated with particular severities of effects ” (ISA, pp. ES-18). The ISA also notes the variation in study designs and endpoints used to assess O
The evidence for the second category, alteration of plant-insect signaling, draws on new research that has provided clear evidence of O
With regard to previously recognized categories of vegetation-related effects, other than growth and visible foliar injury, such as reduced plant reproduction, reduced productivity in terrestrial ecosystems, alteration of terrestrial community composition and alteration of below-ground biogeochemical cycles, the newly available evidence includes a variety of studies, as identified in the ISA (ISA, Appendix 8, sections 8.4, 8.8 and 8.10). Across the studies, a variety of metrics (including AOT40, 4- to 12-hour mean concentrations, and others) are used to quantify exposure over varying durations and various countries. The ISA additionally describes publications that summarize previously published studies in several ways. For example, a meta-analysis of reproduction studies categorized the reported O
As at the time of the last review, growth impacts, most specifically as evaluated by RBL for tree seedlings and RYL for crops, remain the type of vegetation-related effects for which we have the best understanding of exposure conditions likely to elicit them. Thus, as was the case in the decision for the last review, the quantitative analyses of exposures occurring under air quality that meets the current standard, summarized below, are focused primarily on the W126 index, given its established relationship with growth effects.
The air quality and exposure analyses developed in this review, like those in the last review, are of two types: (1) W126-based cumulative exposure estimates in Class I areas; and (2) analyses of W126-based exposures and their relationship with the current standard for all U.S. monitoring locations (PA, Appendix 4D). As summarized in the IRP, we identified these analyses to be updated in this review in recognition of the relatively reduced uncertainty associated with the use of these types of analyses (compared to the national or regional-scale modeling analyses performed in the last review) to inform a characterization of cumulative O
As in the last review, the analyses focus on both the most recent 3-year period (2016 to 2018) for which data were available when the analyses were performed, and also across the full historical period back to 2000, which is now expanded from that available in the last review.
These analyses are based primarily on the hourly air monitoring data that were reported to EPA from O
With regard to Class I areas, of the 158 mandated federal Class I areas, 65 (just over 40%) have or have had O
These updated air quality analyses, and what they indicate regarding environmental exposures of interest in this review, are summarized in the following two subsections which differ in their areas of focus. The first subsection (section III.C.1) summarizes information regarding relationships between air quality in terms of the form and averaging time of the current standard and environmental exposures in terms of the W126 index. The second subsection (section III.C.2) summarizes findings of the analyses of the currently available monitoring data with regard to the magnitude of environmental exposures, in terms of the W126 index, in areas across the U.S., and particularly in Class I areas, during periods in which air quality met the current standard.
In revising the standard in 2015 to the now-current standard, the Administrator concluded that, with revision of the standard level, the existing form and averaging time provided the control of cumulative seasonal exposure circumstances needed for the public welfare protection desired (80 FR 65408, October 26, 2015). The focus on cumulative seasonal exposure as the type of exposure metric of interest primarily reflects the
Among the analyses performed is an evaluation of the variability in the annual W126 index values across a 3-year period (PA, Appendix 4D, section 4D.3.1.2). This evaluation was performed for all U.S. monitoring sites with sufficient data available in the most recent 3-year period, 2016 to 2018. This analysis indicates the extent to which the three single-year W126 index values within a 3-year period deviate from the average for the period. Across the full set of sites, regardless of W126 index magnitude (or whether or not the current standard is met), single-year W126 index values differ less than 15 ppm-hrs from the average for the 3-year period (PA, Appendix 4D, Figure 4D-6). Focusing on the approximately 850 sites meeting the current standard (
Another air quality analysis performed for the current review documents the positive nonlinear relationship that is observed between cumulative seasonal exposure, quantified using the W126 index, and design values, based on the form and averaging time of the current standard. This relationship is shown for both the average W126 index across the 3-year design value period and for W126 index values for individual years within the period (PA, Figure 4-7). From this presentation, it is clear that cumulative seasonal exposures, assessed in terms of W126 index (in a year or averaged across years), are lower at monitoring sites with lower design values. This is seen both for design values above the level of the current standard (70 ppb), where the slope is steeper (due to the sigmoidal weighting of higher concentrations by the W126 index function), as well as for lower design values that meet the current standard (PA, Figure 4-7). This presentation also indicates some regional differences in the relationship. For example, for the 2016-2018 period, at sites meeting the current standard in the regions outside of the West and Southwest regions, all 3-year average W126 index values are at or below 12 ppm-hrs and all single-year values are at or below 16 ppm-hrs (PA, Figures 4-6 and 4-7). The W126 index values are generally higher in the West and Southwest regions. However, the positive relationship between the W126 index and the design value is evident in all nine regions (PA, Figure 4-7).
An additional analysis assesses the relationship between long-term changes in design value and long-term changes in the W126 index. This analysis is presented in detail in the PA and focuses on the relationship between changes (at each monitoring site) in the 3-year design value across the 16 design value periods from 2000-2002 to 2016-2018 and changes in the W126 index over the same period (PA, Appendix 4D, section 4D.3.2.3).
The trends analyses indicate that going forward as design values are reduced in areas that are presently not meeting the current standard, the W126 index in those areas would also be expected to decline (PA, Appendix 4D, section 4D.3.2.3 and 4D.5). The overall trend showing reductions in the W126 index concurrent with reductions in the design value metric for the current standard is positive whether the W126 index is expressed in terms of the average across the 3-year design value period or the annual value (PA, Appendix 4D, section 4D.3.2.3). This similarity is consistent with the strong positive relationship that exists between the W126 index and the design value metric for the current standard summarized above.
With regard to the control of the current form and averaging time on vegetation exposures of potential concern, the PA also describes air quality information pertinent to the evidence discussed in section III.B.3 above regarding the potential for days with particularly high O
In summary, monitoring sites with lower O
The following presentation is framed by the question: What are the nature and magnitude of vegetation exposures associated with conditions meeting the current standard at sites across the U.S., particularly in specially protected areas, such as Class I areas, and what do they indicate regarding the potential for O
The analyses summarized here consider both recent air quality (2016-2018) and air quality since 2000 (PA, Appendix 4D). These air quality analyses of cumulative seasonal exposures associated with conditions meeting the current standard nationally provide conclusions generally similar to those based on the data available at the time of the last review when the current standard was set, when the most recent data were available for 2011 to 2013 (Wells, 2015). Such conclusions are with regard to regional differences as well as the rarity of W126 index values at or above 19 ppm-hrs in areas with air quality meeting the current standard.
Cumulative exposures vary across the U.S. with the highest W126 index values for sites that met the current standard being located exclusively in Southwest and West climate regions (PA, Figure 4-6). At sites meeting the current standard in all other NOAA climate regions, W126 index values, averaged over the 3-year design value period are at or below 13 ppm-hrs (PA, Figure 4-6 and Appendix 4D, Figure 4D-2). At Southwest and West region sites that met the current standard, W126 index values, averaged across the 3-year design value period, are at or below 17 ppm-hrs in virtually all cases in the most recent 3-year period and across all of the seventeen 3-year periods in the full dataset evaluated (
In summary, among sites meeting the current standard in the most recent period of 2016 to 2018, there are none with a W126 index, based on the 3-year average, above 19 ppm-hrs, and just one with such a value above 17 ppm-hrs (Table 5). Additionally, the full historical dataset includes no occurrences of a 3-year average W126 index above 19 ppm-hrs for sites meeting the current standard, and just eight occurrences of a W126 index above 17 ppm-hrs, with the highest such occurrence just equaling 19 ppm-hrs (Table 5; PA, Appendix 4D, section 4D.3.2.1).
With regard to Class I areas, the updated air quality analyses include data at sites in or near 65 Class I areas. The findings for these sites, which are distributed across all nine NOAA climate regions in the contiguous U.S., as well as Alaska and Hawaii, mirror the findings for the analysis of all U.S. sites. Among the Class I area sites meeting the current standard (
The W126 exposures at sites with design values above 70 ppb range up to approximately 60 ppm-hrs (Table 5). Among all sites across the U.S. that do not meet the current standard in the 2016 to 2018 period, more than a quarter have average W126 index values above 19 ppm-hrs and a third exceed 17 ppm-hrs (Table 5). A similar situation exists for Class I area sites (Table 5). Thus, as was the case in the last review, the currently available quantitative information continues to indicate appreciable control of seasonal W126 index-based cumulative exposure at all sites with air quality meeting the current standard.
As summarized above, the information available in this review continues to indicate that average cumulative seasonal exposure levels at virtually all sites and 3-year periods with air quality meeting the current standard fall at or below the level of 17 ppm-hrs that was identified when the current standard was established (80 FR 65393; October 26, 2015). Additionally, the full dataset indicates that at sites meeting the current standard, annual W126 index values were less than or equal to 19 ppm-hrs well over 99% of the time (PA, Appendix 4D, section 4D.3.2.1). Additionally, the average W126 index in Class I areas that meet the current standard for the most recent 3-year period is below 17 ppm-hrs at all areas which have a monitor within or near their borders (PA, Appendix 4D, Table 4D-16). Further, with the exception of seven values that occurred prior to 2011, cumulative seasonal exposures, in terms of average 3-year W126, in all Class I areas during periods that met the current standard were no higher than 17 ppm-hrs. This contrasts with the occurrence of much higher W126 index values at sites when the current standard was not met. For example, out of the 11 Class I area sites with design values above 70 ppb during the most recent period, eight sites had a 3-year average W126 index above 19 ppm-hrs (ranging up to 47 ppm-hrs) and for nine, it was above 17 ppm-hrs (Table 5; PA, Appendix 4D, Table 4D-17).
In reaching proposed conclusions on the current secondary O
This approach to reviewing the secondary standard is consistent with requirements of the provisions of the CAA related to the review of the NAAQS and with how the EPA and the courts have historically interpreted the CAA. As discussed in section I.A above, these provisions require the Administrator to establish secondary standards that, in the Administrator's judgment, are requisite (
The proposed decision on the adequacy of the current secondary standard described below is a public welfare policy judgment by the Administrator that draws upon the scientific evidence for welfare effects, quantitative analyses of air quality, exposure and risks, as available, and judgments about how to consider the uncertainties and limitations that are inherent in the scientific evidence and quantitative analyses. This proposed decision has additionally considered the August 2019 remand of the secondary standard. The four basic elements of the NAAQS (
Based on its evaluation of the evidence and quantitative analyses of
The subsections below summarize key considerations and conclusions from the PA. The main focus of the policy-relevant considerations in the PA is the question: Does the currently available scientific evidence- and exposure/risk-based information support or call into question the adequacy of the protection afforded by the current secondary O
With regard to the support in the current evidence for O
Across the full array of welfare effects, summarized in section III.B.1 above, the evidence newly available in this review strengthens previous conclusions, provides further mechanistic insights and augments current understanding of varying effects of O
As in the last review, the strongest evidence and the associated findings of causal or likely causal relationships with O
The evidence bases for the three newly identified categories provide examples of such gaps in relevant information. For example, the evidence for increased tree mortality includes previously available studies with field observations from locations and periods of O
With regard to tropospheric O
The category of O
The evidence newly available in this review does not include studies that assessed reductions in tree growth or crop yield responses across multiple O
In considering the E-R functions and their use in informing judgments regarding such effects in areas with air quality of interest, the PA additionally recognized a number of limitations, and associated uncertainties, that remain in the current evidence base, and that affect characterization of the magnitude of cumulative exposure conditions eliciting growth reductions in U.S. forests (PA, section 4.3.4). For example, there are uncertainties in the extent to which the 11 tree species for which there are established E-R functions encompass the range of O
The PA additionally considered the quantitative information for other long-recognized effects of O
With regard to visible foliar injury, the PA finds that, as in the last review, there remains a lack of established E-R functions that would quantitatively describe relationships between the occurrence and severity of visible foliar injury and O
As discussed in section III.B.3 above, a number of analyses of the USFS biosite data (as well as several experimental studies), while often using cumulative exposure metrics to quantify O
In looking across the full array of O
With regard to exposure metric the currently available evidence continues to support a cumulative, seasonal exposure index as a biologically relevant and appropriate metric for assessment of the evidence of exposure/risk information for vegetation, most particularly for growth-related effects. The most commonly used such metrics are the SUM06, AOT40 (or AOT60) and W126 indices (ISA, section IS.3.2).
This section summarizes PA consideration of the current evidence and air quality information with regard to key aspects of the general approach and risk management framework for making judgments and reaching conclusions regarding the adequacy of public welfare protection provided by the secondary standard that was applied in 2015 (summarized in section III.A.1 above). Key aspects of the approach include the use of RBL as a proxy for the broad array of O
In the last review, the Administrator used RBL as a proxy or surrogate for an array of adverse welfare effects based on consideration of ecosystem services and potential for impacts to the public, as well as conceptual relationships between vegetation growth effects and ecosystem-scale effects. Such a use was supported by the CASAC at that time (80 FR 65406, October 26, 2015; Frey, 2014b, pp. iii, 9-10).
For example, CASAC concurs that trees are important from a public welfare perspective because they provide valued services to humans, including aesthetic value, food, fiber, timber, other forest products, habitat, recreational opportunities, climate regulation, erosion control, air pollution removal, and hydrologic and fire regime stabilization. Damage effects to trees that are adverse to public welfare occur in such locations as national parks, national refuges, and other protected areas, as well as to timber for commercial use. The CASAC concurs that biomass loss in trees is a relevant surrogate for damage to tree growth that affects ecosystem services such as habitat provision for wildlife, carbon storage, provision of food and fiber, and pollution removal. Biomass loss may also have indirect process-related effects such as on nutrient and hydrologic cycles. Therefore, biomass loss is a scientifically valid surrogate of a variety of adverse effects to public welfare.
The currently available evidence related to conceptual relationships between plant growth impacts and the broader array of vegetation effects (
Beyond tree seedling growth, on which RBL is specifically based, two other vegetation effect categories with extensive evidence bases, crop yield and visible foliar injury, were also given attention in considering the public welfare protection provided by the standard in 2015. Based on the available information for these endpoints, along with associated limitations and uncertainties, the Administrator at that time concluded there was not support for giving a primary focus, in selecting a revised secondary standard, to these two types of effects. With regard to crop yield, the Administrator recognized the significant role of agricultural management practices in agricultural productivity, as well as market variability, concluding that, in describing her public welfare protection objectives, additional attention to this endpoint was not necessary. The rough similarities in estimated W126 levels of median crops and tree species are also noteworthy. With regard to foliar injury, the lack of clear quantitative relationships that would support predictive E-R functions was recognized. In light of such considerations, the Administrator focused on RBL estimates in identifying the requisite standard, and judged that a standard set based on public welfare protection objectives described in terms of cumulative exposures and relationships with tree seedling RBL was an appropriate means to, and would, provide appropriate protection for the array of vegetation-related effects. With regard to the information available in the current review, the PA concludes it does not call into question the basis for such judgments and continues to be supportive of the use of tree seedling RBL as a proxy for the broad array of vegetation-related effects (PA, section 4.5.1.2).
In considering the magnitude of estimated RBL on which to focus in its role as a surrogate or proxy for the full array of vegetation effects in the last review, the Administrator endeavored to identify a secondary standard that would limit 3-year average O
The PA concludes that the information newly available in this review does not differ from that available in the last review with regard to a magnitude of RBL in the median species appropriately considered a reference for judgments concerning
Quantitative representations of such relationships have been used to study potential impacts of tree growth effects on such larger-scale effects as community composition and productivity with the results indicating the array of complexities involved (
In setting the current standard, as described in section III.A.1 above, the Administrator focused on control of seasonal cumulative exposures in terms of a 3-year average W126 index. The evaluations in the PA for that review recognized there to be limited information to discern differences in the level of protection afforded for cumulative growth-related effects by a standard focused on a single-year W126 index as compared to a 3-year W126 index (80 FR 65390, October 26, 2015). Accordingly, 3-year average was identified for considering the seasonal W126 index based on the recognition that there was year-to-year variability not just in O
A general area of uncertainty that remains in the current evidence continues to affect interpretation of the potential for harm to public welfare over multi-year periods of air quality that meet the current standard (PA, section 4.3.4). As recognized in the last review, there is variability in ambient air O
As summarized in section III.B.3 above, the longstanding evidence on O
The experiments from which the functions were derived vary in duration
The PA additionally recognizes that the experiment-specific E-R functions for both aspen and ponderosa pine illustrate appreciable variability in response across experiments (PA, Appendix 4A, Figure 4A-10). The PA suggested that reasons for this variability may relate to a number of factors, including variability in seasonal response related to variability in non-O
The PA recognizes that the evidence that allows for specific evaluation of the predictability of growth impacts from single-year versus multiple-year average exposure estimates is quite limited. Such evidence would include multi-year studies reporting results for each year of the study, which are the most informative to the question of plant annual and cumulative responses to individual years (high and low) over multiple-year periods. The evidence is quite limited with regard to studies of O
One such study, which tracked exposures across six years, is available for aspen (King et al., 2005; 2013 ISA, section 9.6.3.2; ISA, Appendix 8, section 8.13.2).
Thus, the PA finds that, while the E-R functions are based on strong evidence of seasonal and cumulative seasonal O
In considering a public welfare protection approach related to visible foliar injury, the PA first notes that some level of visible foliar injury can impact public welfare and thus might reasonably be judged adverse to public welfare.
In establishing the current secondary standard and describing its underlying public welfare protection objectives (as summarized in section III.A.1, above), the Administrator at that time focused primarily on RBL in tree seedlings as a proxy or surrogate for the full array of vegetation related effects of O
The PA finds that these challenges are not addressed by the information available in the current review. Beyond the lack of established descriptive quantitative relationships for O
Notwithstanding these limitations with regard to a detailed approach or framework for judging public welfare protection related to impacts of visible foliar injury, the current evidence and analyses are informative to such considerations. For example, the published studies and EPA analyses of the USFS biosite data indicate that incidence and severity of injury are increased at the highest exposures. With regard to the dataset analyzed in the PA, while clear trends in incidence and severity related to increasing W126 index are not evident across the W126 bins below 25 ppm-hrs, the incidence of sites with the more severe classification of injury (
Given the evidence regarding the role of peak O
In considering the currently available information for the effects of the global tropospheric abundance of O
In considering the potential for effects and related public welfare implications of air quality conditions and associated exposures indicated to occur under the current standard, the PA first looked to the air quality analyses particular to cumulative O
The air quality analyses of monitoring data at sites across the U.S. that meet the current standard in the most recent 3-year period find that the seasonal W126 index, as assessed by the 3-year average, is at or below 17 ppm-hrs, with just one exception, among 849 locations, where it equaled 18 ppm-hrs. No 3-year average W126 index values exceeded 17 ppm-hrs in or near Class I areas. Further, such W126 exposures are generally well below 17 ppm-hrs across most of the U.S. These findings for sites meeting the current standard, differ dramatically from sites with higher design values. For example, a third of all U.S. sites with design values above 70 ppb in the recent period, and more than 80% of Class I area sites with design values above 70 ppb, have average W126 index values above 17 ppm-hrs. Looking back across the 19 years covered by the full historical dataset, the cumulative exposure estimates, averaged over the design value periods, were virtually all at or below 17 ppm-hrs, with most of the W126 index values below 13 ppm-hrs (PA, Appendix 4D, Table 4D-9).
The PA also considered the general occurrence and distribution of relatively higher single-year W126 index values, finding a generally similar pattern to that for averages over the design value period. For example, fewer than two dozen of the 849 sites meeting the current standard in the recent period had a single-year index above 17 ppm-hrs; about a dozen of these sites fall above 19 ppm- hrs, the highest of which just reaches 25 ppm-hrs in downtown Denver, CO.
In reflecting on the air quality analysis findings summarized here, the PA additionally recognized limitations and uncertainties of the underlying database, noting there to be inherent limitations in any air monitoring network. The monitors for O
Another inherent uncertainty is with regard to the extent to which the results will prove to reflect conditions far out into the future as air quality and patterns of O
In the last review, the Administrator focused on cumulative exposure estimates derived as the average W126 index over the 3-year design value period, concluding variations of single-year W126 index from the average to be of little significance in assessing public welfare protection. This focus generally reflected the judgment that estimates based on the average adequately, and appropriately reflected the precision of current understanding of O
Combining the findings of W126 index values (averaged over design value period) likely under the current standard with the established E-R functions for reduced growth in 11 tree seedling species yields a median species RBL for tree seedlings at or below 5.3% for the recent period, with very few exceptions, with the highest estimates occurring in areas not near or within Class I areas. This general pattern is confirmed over the longer time period (2000-2018) for the vast majority of the data, with virtually all RBL estimates below 6%.
With regard to visible foliar injury, the PA observes that the available evidence does not include an approach for characterizing natural areas experiencing some severity or extent injury (
Assessment of any public welfare implications of air quality occurring under the current standard with regard to visible foliar injury is further hampered by the lack of an established quantitative description of the relationship between O
The analyses of recent and historical air quality at monitoring sites where the current standard is met do not indicate a tendency for such occurrence of cumulative exposures or peak concentrations (PA, sections 2.4.5 and 4.4, Appendices 2A and 4D). In these analyses, all 3-year average W126 index values are below 25 ppm-hrs, and values above 17 ppm-hrs are rare. In addition, all single-year, W126 index values at Class I area locations meeting the current standard (and virtually all sites across the U.S.) are at or below 25 ppm-hr; even, and values above 19 ppm-hrs are rare, and mores so in more recent years (PA, section 4.4.2, Appendix 4D). Accordingly, while the current evidence is limited for the purposes of identifying public welfare protection objectives related to visible foliar injury in terms of specific air quality metrics, the PA notes that the current information indicates that the occurrence of injury categorized as more severe than “little” by the USFS categorization (
In light of the evidence regarding a role for peak concentrations, the PA additionally took note of the control of peak concentrations exerted by the form and averaging time of the current standard. For example, daily maximum 1-hour, as well as 8-hour average O
Thus, although the current information does not establish a metric or combination of metrics that well describes the relationship between occurrence and severity of visible foliar injury across a broad range of O
With regard to other vegetation-related effects, including those at the ecosystem scale, such as alteration in community composition or reduced productivity in terrestrial ecosystems, as recognized in section III.D.1.a above, the available evidence is not clear with regard to the risk of such impacts (and their magnitude or severity) associated with the environmental O
The CASAC provided its advice regarding the current secondary standard in the context of its review of the draft PA (Cox, 2020a).
With regard to O
With regard to the court's remand of the 2015 secondary standard to the EPA for further justification or reconsideration (“particularly in relation to its decision to focus on a 3-year average for consideration of the cumulative exposure, in terms of W126, identified as providing requisite public welfare protection, and its decision to not identify a specific level of air quality related to visible foliar injury”), while the CASAC stated that it was not clear whether the draft PA had fully addressed this concern (Cox, 2020a, p. 21), it described there to be a solid
Based on the large body of evidence concerning the welfare effects, and potential for public welfare impacts, of exposure to O
In the discussion below, the Administrator considers first the evidence base on welfare effects associated with exposure to photochemical oxidants, including O
As an initial matter, the Administrator recognizes the continued support in the current evidence for O
In considering the currently available welfare effects evidence for O
In considering the evidence with regard to support for quantitative description of relationships between air quality conditions and response to inform his judgments on the current standard, the Administrator recognizes the supporting evidence for plant growth and yield. The evidence base continues to indicate growth-related effects as sensitive welfare effects, with the potential for ecosystem-scale ramifications. For this category of effects, there are established E-R functions that relate cumulative seasonal exposure of varying magnitudes to various incremental reductions in expected tree seedling growth (in terms of RBL) and in expected crop yield (in terms of RYL). Many decades of research also recognize visible foliar injury as an effect of O
Before focusing further on the key vegetation-related effects identified above, the Administrator first considers the strong evidence documenting tropospheric O
The Administrator turns next to consideration of visible foliar injury. In so doing, he considers both the conclusions of the ISA and the examination and analysis in the PA of the currently available information as to what it indicates and supports with regard to adequacy of protection provided by the current standard, as summarized in section III.D.1 above. As an initial matter, he takes note of the long-standing documentation of visible foliar injury as an effect of O
In considering the PA evaluations, the Administrator takes note of the PA observation that important uncertainties remain in the understanding of the O
Notwithstanding, and while being mindful of, such uncertainties with regard to predictive O
The Administrator also notes the PA observation that publications related to the evidence base for the USFS biosite monitoring program document reductions in the incidence of the higher BI scores over the 16-year period of the program (1994 through 2010), especially after 2002, leading to researcher conclusions of a “declining risk of probable impact” on the monitored forests over this period (
The Administrator additionally takes note of the PA recognition of a paucity of established approaches for
With regard to the PA presentations of the USFS data combined with W126 estimates and soil moisture categories, summarized in section III.B.3 above, the Administrator takes note of the PA finding that the incidence of nonzero BI scores, and, particularly of relatively higher scores (such as scores above 15 which are indicative of “moderate to severe” injury in the USFS scheme) appears to markedly increase only with W126 index values above 25 ppm-hrs, as summarized in section III.B.3.b above (PA, section 4.3.3 and Appendix 4C). In so doing, he notes that such a magnitude of W126 index (either as a 3-year average or in a single year) is not seen to occur at monitoring locations (including in or near Class I areas) where the current standard is met, and that values above 17 or 19 ppm-hrs are rare, as summarized in section III.D.1.c above (PA, Appendix 4C, section 4C.3; Appendix 4D, section 4D.3.2.3). Further, the Administrator takes note of the PA consideration of the USFS publications that identify an influence of peak concentrations on BI scores (beyond an influence of cumulative exposure) and the PA observation of the appreciable control of peak concentrations exerted by the form and averaging time of the current standard, as evidenced by the air quality analyses which document reductions in 1-hour daily maximum concentrations with declining design values. For example, the PA finds the average number of 1-hour daily maximum concentrations across monitored sites to be some 40 times lower for sites meeting the current standards compared to sites that do not, as summarized in section III.D.1 above. Based on these considerations, the Administrator agrees with the PA finding that the current standard provides control of air quality conditions that contribute to increased BI scores and to scores of a magnitude indicative of “moderate to severe” foliar injury.
The Administrator further takes note of the PA finding that the current information, particularly in locations meeting the current standard or with W126 index estimates likely to occur under the current standard, does not indicate a significant extent and degree of injury (
In turning to consideration of the remaining array of vegetation-related effects, the Administrator first takes note of uncertainties in the details and quantitative aspects of relationships between plant-level effects such as growth and reproduction, and ecosystem impacts, the occurrence of which are influenced by many other ecosystem characteristics and processes. These examples illustrate the role of public welfare policy judgments, both with regard to the extent of protection that is requisite and concerning the weighing of uncertainties and limitations of the underlying evidence base and associated quantitative analyses. The Administrator notes that such judgments will inform his decision in the current review, as is common in NAAQS reviews. Public welfare policy judgments play an important role in each review of a secondary standard, just as public health policy judgments have important roles in primary standard reviews. One type of public welfare policy judgment focuses on how to consider the nature and magnitude of the array of uncertainties that are inherent in the scientific evidence and analyses. These judgments are traditionally made with a recognition that current understanding of the relationships between the presence of a pollutant in ambient air and associated welfare effects is based on a broad body of information encompassing not only more established aspects of the evidence but also aspects in which there may be substantial uncertainty. This may be true even of the most robust aspect of the evidence base. In the case of the secondary O
The Administrator now turns to the welfare effects of reduced plant growth or yield. In so doing, he takes note of the well-established E-R functions for seedlings of 11 tree species that relate cumulative seasonal O
With regard to the use of RBL and the median RBL estimate based on the established E-R functions for 11 species of tree seedlings, the Administrator takes note of considerations in the PA. For example, while the E-R functions for the 11 species have been derived in terms of a seasonal W126 index, the experiments from which they were derived vary in duration from less than three months to many more, such that, the adjustment to a 3-month season duration, with its underlying simplifying assumptions of uniform W126 distribution over the exposure period and relationship between duration and response, contributes some imprecision or inexactitude to the resulting functions and estimates derived using it, as discussed in section III.D.1.b above. Additionally, there is greater uncertainty with regard to estimated RBL at lower cumulative exposure levels, as the exposure levels represented in the data underlying the E-R functions are somewhat limited with regard to the relatively lower cumulative exposure levels, such as those most commonly associated with the current standard (
In light of the above considerations, the Administrator agrees with the PA finding that such factors as those identified here (also summarized in section III.D.1.b(ii) above), and discussed in the PA (PA, sections 4.5.1.2 and 4.5.3), including the currently available evidence and its recognized limitations, variability and uncertainties, contribute uncertainty and resulting imprecision or inexactitude to RBL estimates of single-year seasonal W126 index values, thus supporting a conclusion that it is reasonable to use a seasonal RBL averaged over multiple years, such as a 3-year average. The Administrator additionally takes note of the CASAC advice reaffirming the EPA's focus on a 3-year average W126, concluding such a focus to be reasonable and scientifically sound, as summarized in section III.D.2 above. In light of these considerations, the Administrator finds there to be support for use of an average seasonal W126 index derived from multiple years (with their representation of variability in environmental factors), concluding the use of such averaging to provide an appropriate representation of the evidence and attention to considerations summarized above. In so doing, he finds that a reliance on single year W126 estimates for reaching judgments with regard to magnitude of O
Thus, the Administrator recognizes a number of public welfare policy judgments important to his review of the current standard. Those judgments include adoption of the median tree seedling RBL estimate for the studied species as a surrogate for the broad array of vegetation related effects that extend to the ecosystem scale, and identification of cumulative seasonal exposures (in terms of the average W126 index across the 3-year design period for the standard) for assessing O
In his consideration of the adequacy of protection provided by the current standard, the Administrator also notes judgments of the prior Administrator in considering the public welfare significance of small magnitude estimates of RBL and associated unquantified potential for larger-scale related effects. As with visible foliar injury, the Administrator does not consider every possible instance of an effect on vegetation growth from O
With this approach and protection target in mind, the Administrator further considers the analyses available in this review of recent air quality at sites across the U.S., particularly including those sites in or near Class I areas, and also the analyses of historical air quality. In so doing, the Administrator recognizes that these analyses are distributed across all nine NOAA climate regions and 50 states, although some geographic areas within specific regions and states may be more densely covered and represented by monitors than others, as summarized in section III.C above. The Administrator notes that the findings from both the analysis of the air quality data from the most recent period and from the larger analysis of historical air quality data extending back to 2000, as presented in the PA and summarized in section III.C above, are consistent with the air quality analyses available in the last review. That is, in virtually all design value periods and all locations at which the current standard was met across the 19 years and 17 design value periods (in more than 99.9% of such observations), the 3-year average W126 metric was at or below 17 ppm-hrs. Further, in all such design value periods and locations the 3-year average W126 index was at or below 19 ppm-hrs. The Administrator additionally considers the protection provided by the current standard from the occurrence of O
In reaching his proposed conclusion on the current secondary O
The Administrator additionally considers O
In reaching his proposed conclusion on the current standard, the Administrator also considers the extent to which the current information may provide support for an alternative standard. In so doing, he notes the longstanding evidence documenting the array of welfare effects associated with O
Further, the Administrator recognizes that public comments thus far in this review have suggested that an alternative standard, such as one based solely on the W126 metric, is required to provide adequate protection of the public welfare. Such a point was raised in the litigation challenging the 2015 secondary standard, although the court did not resolve this issue in its decision. In considering this issue, the Administrator recognizes that, as summarized in section III.B.3.a above, concentration-weighted, cumulative exposure metrics, including the W126 index, have been identified as quantifying exposure in a way that relates to reduced plant growth (ISA, Appendix 8, section 8.13.1). The W126 index is the metric used with the 11
In summary, the Administrator recognizes that his proposed decision on the public welfare protection afforded by the secondary O
Having reached the proposed decision described here based on interpretation of the welfare effects evidence, as assessed in the ISA, and the quantitative analyses presented in the PA; the evaluation of policy-relevant aspects of the evidence and quantitative analyses in the PA; the advice and recommendations from the CASAC; public comments received to date in this review; and the public welfare policy judgments described above, the Administrator recognizes that other interpretations, assessments and judgments might be possible. Therefore, the Administrator solicits comment on the array of issues associated with review of this standard, including public welfare and science policy judgments inherent in the proposed decision, as described above, and the rationales upon which such views are based.
Additional information about these statutes and Executive Orders can be found at
The Office of Management and Budget (OMB) has determined that this action is a significant regulatory action and it was submitted to OMB for review. Any changes made in response to OMB recommendations have been documented in the docket. Because this action does not propose to change the existing NAAQS for O
This action is not expected to be an Executive Order 13771 regulatory action. There are no quantified cost estimates for this proposed action because EPA is proposing to retain the current standards.
This action does not impose an information collection burden under the PRA. There are no information collection requirements directly associated with a decision to retain a NAAQS without any revision under section 109 of the CAA, and this action proposes to retain the current O
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. Rather, this action proposes to retain, without revision, existing national standards for allowable concentrations of O
This action does not contain any unfunded mandate as described in the UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes. This action does not change existing regulations; it proposes to retain the current O
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866. The health effects evidence and risk assessment information for this action, which focuses on children and people (of all ages) with asthma as key at-risk populations, is summarized in sections II.B and II.C above and described in the ISA and PA, copies of which are in the public docket for this action.
This action is not subject to Executive Order 13211, because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The purpose of this document is to propose to retain the current O
This action does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The action proposed in this document is to retain without revision the existing O
Section 307(d)(1)(V) of the CAA provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.” Pursuant to section 307(d)(1)(V), the Administrator determines that this action is subject to the provisions of section 307(d).
Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
(1) Clause 2 of Proclamation 9704, as amended, is further amended in the second sentence by deleting “and” before “(d)” and inserting before the period at the end: “, (e) on or after 12:01 a.m. eastern daylight time on August 16, 2020, from all countries except Argentina, Australia, and Mexico; and (f) on or after 12:01 a.m. eastern daylight time on August
(2) The Secretary, in consultation with U.S. Customs and Border Protection and other relevant executive departments and agencies, shall revise the HTSUS so that it conforms to the amendments and effective dates directed in this proclamation. The Secretary shall publish any such modification to the HTSUS in the
(3) The modifications made by clause 1 of this proclamation shall be effective with respect to goods entered for consumption, or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern daylight time on August 16, 2020, and shall continue in effect, unless such actions are expressly reduced, modified, or terminated.
(4) Any exclusion of aluminum articles from Canada granted by the Secretary of Commerce pursuant to clause 3 of Proclamation 9704, as amended, that has not expired shall be valid under the modifications to the HTSUS made by this proclamation. Previously granted exclusions that have expired may be renewed.
(5) Any imports of non-alloyed unwrought aluminum articles from Canada provided for in subheading 7601.10 that were admitted into a United States foreign trade zone under “privileged foreign status” as defined in 19 CFR 146.41 prior to 12:01 a.m. eastern daylight time on August 16, 2020, shall be subject upon entry for consumption on or after such time and date to the 10 percent ad valorem rate of duty imposed by Proclamation 9704, as amended. Any imports of non-alloyed unwrought aluminum articles from Canada provided for in subheading 7601.10, except any articles that are eligible for admission under “domestic status” as defined in 19 CFR 146.43, that are admitted into a United States foreign trade zone on or after 12:01 a.m. eastern daylight time on August 16, 2020, shall be admitted only as “privileged foreign status” as defined in 19 CFR 146.41, and shall be subject upon entry for consumption on or after such time and date to the 10 percent ad valorem rate of duty imposed by Proclamation 9704, as amended.
(6) Non-alloyed unwrought aluminum articles provided for in subheading 7601.10 shall not be subject upon entry for consumption to the duty established in clause 2 of Proclamation 9704, as amended, merely by reason of manufacture in a U.S. foreign trade zone. However, non-alloyed unwrought aluminum articles provided for in subheading 7601.10 admitted to a U.S. foreign trade zone in “privileged foreign status” pursuant to clause 5 of this proclamation, shall retain that status consistent with 19 CFR 146.41(e).
(7) No drawback shall be available with respect to the duties imposed pursuant to this proclamation.
(8) Any provision of previous proclamations and Executive Orders that is inconsistent with the actions taken in this proclamation is superseded to the extent of such inconsistency.
(a) accelerate the development of cost-effective and efficient domestic production of Essential Medicines and Medical Countermeasures and have adequate redundancy built into the domestic supply chain for Essential Medicines, Medical Countermeasures, and Critical Inputs;
(b) ensure long-term demand for Essential Medicines, Medical Countermeasures, and Critical Inputs that are produced in the United States;
(c) create, maintain, and maximize domestic production capabilities for Critical Inputs, Finished Drug Products, and Finished Devices that are essential to protect public safety and human health and to provide for the national defense; and
(d) combat the trafficking of counterfeit Essential Medicines, Medical Countermeasures, and Critical Inputs over e-commerce platforms and from third-party online sellers involved in the government procurement process.
(b) Within 90 days of the date of this order, the Director of the Office of Management and Budget (OMB), in consultation with appropriate agency heads, shall:
(A) adopted, and certified their compliance with, the applicable best practices published by the Department of Homeland Security in its Report to the President on “Combating Trafficking in Counterfeit and Pirated Goods,” dated January 24, 2020; and
(B) agreed to permit the Department of Homeland Security's National Intellectual Property Rights Coordination Center to evaluate and confirm their compliance with such best practices; and
(c) Within 90 days of the date of this order, the head of each agency shall, in consultation with the FDA Commissioner, develop and implement procurement strategies, including long-term contracts, consistent with law, to strengthen and mobilize the Public Health Industrial Base in order to increase the manufacture of Essential Medicines, Medical Countermeasures, and Critical Inputs in the United States.
(d) No later than 30 days after the FDA Commissioner has identified, pursuant to section 3(c) of this order, the initial list of Essential Medicines, Medical Countermeasures, and Critical Inputs, the United States Trade Representative shall, to the extent permitted by law, take all appropriate action to modify United States Federal procurement product coverage under all relevant Free Trade Agreements and the World Trade Organization Agreement on Government Procurement to exclude coverage of Essential Medicines, Medical Countermeasures, and Critical Inputs. The United States Trade Representative shall further modify United States Federal procurement product coverage, as appropriate, to reflect updates by the FDA Commissioner. After the modifications to United States Federal procurement coverage take effect, the United States Trade Representative shall make any necessary, corresponding modifications of existing waivers under section 301 of the Trade Agreements Act of 1979. The United States Trade Representative shall notify the President, through the Director of OMB, once it has taken the actions described in this subsection.
(e) No later than 60 days after the FDA Commissioner has identified, pursuant to section 3(c) of this order, the initial list of Essential Medicines, Medical Countermeasures, and Critical Inputs, and notwithstanding the public interest exception in subsection (f)(i)(1) of this section, the Secretary of Defense shall, to the maximum extent permitted by applicable law, use his authority under section 225.872-1(c) of the Defense Federal Acquisition Regulation Supplement to restrict the procurement of Essential Medicines, Medical Countermeasures, and Critical Inputs to domestic sources and to reject otherwise acceptable offers of such products from sources in Qualifying Countries in instances where considered necessary for national defense reasons.
(f) Subsections (a), (d), and (e) of this section shall not apply:
(g) To the maximum extent permitted by law, any public interest determination made pursuant to section 2(f)(i)(1) of this order shall be construed to maximize the procurement and use of Essential Medicines and Medical Countermeasures produced in the United States.
(h) The head of an agency who makes any determination pursuant to section 2(f)(i) of this order shall submit an annual report to the President, through the Director of OMB and the Assistant to the President for Trade and Manufacturing Policy, describing the justification for each such determination.
(A) the sources of Finished Drug Products, Finished Devices, and Critical Inputs;
(B) the use of any scarce Critical Inputs; and
(C) the date of the last FDA inspection of the manufacturer's regulated facilities and the results of such inspection;
(b) The Secretary of Health and Human Services, through the FDA Commissioner, shall take all appropriate action, consistent with applicable law, to:
(c) Within 90 days of the date of this order, and periodically updated as appropriate, the FDA Commissioner, in consultation with the Director of OMB, the Assistant Secretary for Preparedness and Response in the Department of Health and Human Services, the Assistant to the President for Economic Policy, and the Director of the Office of Trade and Manufacturing Policy, shall identify the list of Essential Medicines, Medical Countermeasures, and their Critical Inputs that are medically necessary to have available at all times in an amount adequate to serve patient needs and in the appropriate dosage forms.
(d) Within 180 days of the date of this order, the Secretary of Defense, in consultation with the Director of OMB, shall take all necessary and appropriate action, consistent with law, to identify vulnerabilities in the supply chain for Essential Medicines, Medical Countermeasures, and Critical Inputs necessary to meet the unique needs of the United States Armed Forces and to mitigate the vulnerabilities identified in subsection (a) of this section. The Secretary of Defense shall provide to the Secretary of Health and Human Services, the FDA Commissioner, the Director of OMB, and the Director of the Office of Trade and Manufacturing Policy a list of defense-specific Essential Medicines, Medical Countermeasures, and Critical Inputs that are medically necessary to have available for defense use in adequate amounts and in appropriate dosage forms. The Secretary of Defense shall, as appropriate, periodically update this list.
(b) Within 180 days of the date of this order, the Secretary of Commerce shall submit a report to the Director of OMB, the Assistant to the President for National Security Affairs, the Director of the National Economic Council, and the Director of the Office of Trade and Manufacturing Policy, describing any change in the status of the Public Health Industrial Base and recommending initiatives to strengthen the Public Health Industrial Base.
(c) To the maximum extent permitted by law, and with the redaction of any information protected by law from disclosure, each agency's report shall be published in the
(a) “Active Pharmaceutical Ingredient” has the meaning set forth in section 207.1 of title 21, Code of Federal Regulations.
(b) “Advanced Manufacturing” means any new medical product manufacturing technology that can improve drug quality, address shortages of medicines, and speed time to market, including continuous manufacturing and 3D printing.
(c) “API Starting Material” means a raw or intermediate material that is used in the manufacturing of an API, that is incorporated as a significant structural fragment into the structure of the API, and that is determined by the FDA Commissioner to be relevant in assessing the safety and effectiveness of Essential Medicines and Medical Countermeasures.
(d) “Critical Inputs” means API, API Starting Material, and other ingredients of drugs and components of medical devices that the FDA Commissioner determines to be critical in assessing the safety and effectiveness of Essential Medicines and Medical Countermeasures.
(e) “Essential Medicines” are those Essential Medicines deemed necessary for the United States pursuant to section 3(c) of this order.
(f) “Finished Device” has the meaning set forth in section 820.3(l) of title 21, Code of Federal Regulations.
(g) “Finished Drug Product” has the meaning set forth in section 207.1 of title 21, Code of Federal Regulations.
(h) “Healthcare and Public Health Sector” means the critical infrastructure sector identified in Presidential Policy Directive 21 of February 12, 2013 (Critical Infrastructure Security and Resilience), and the National Infrastructure Protection Plan of 2013.
(i) An Essential Medicine or Medical Countermeasure is “produced in the United States” if the Critical Inputs used to produce the Essential Medicine or Medical Countermeasures are produced in the United States and if the Finished Drug Product or Finished Device, are manufactured, prepared, propagated, compounded, or processed, as those terms are defined in section 360(a)(1) of title 21, United States Code, in the United States.
(j) “Medical Countermeasures” means items that meet the definition of “qualified countermeasure” in section 247d-6a(a)(2)(A) of title 42, United States Code; “qualified pandemic or epidemic product” in section 247d-6d(i)(7) of title 42, United States Code; “security countermeasure” in section 247d-6b(c)(1)(B) of title 42, United States Code; or personal protective equipment described in part 1910 of title 29, Code of Federal Regulations.
(k) “Public Health Industrial Base” means the facilities and associated workforces within the United States, including research and development facilities, that help produce Essential Medicines, Medical Countermeasures, and Critical Inputs for the Healthcare and Public Health Sector.
(l) “Qualifying Countries” has the meaning set forth in section 225.003, Defense Federal Acquisition Regulation Supplement.
(a) the ability of State, local, tribal, or territorial governments to timely procure necessary resources to respond to any public health emergency declared under section 319 of the Public Health Service Act (42 U.S.C. 247d), any major disaster or emergency declared under the Stafford Act (42 U.S.C. 5121
(b) the ability or authority of any agency to respond to the spread of COVID-19; or
(c) the authority of the Secretary of Veterans Affairs to take all necessary steps, including those necessary to implement the policy set forth in section 1 of this order, to ensure that service members, veterans, and their families continue to have full access to Essential Medicines at reasonable and affordable prices.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(b) The Secretary of the Treasury and the Secretary of Housing and Urban Development shall identify any and all available Federal funds to provide temporary financial assistance to renters and homeowners who, as a result of the financial hardships caused by COVID-19, are struggling to meet their monthly rental or mortgage obligations.
(c) The Secretary of Housing and Urban Development shall take action, as appropriate and consistent with applicable law, to promote the ability of renters and homeowners to avoid eviction or foreclosure resulting from financial hardships caused by COVID-19. Such action may include encouraging and providing assistance to public housing authorities, affordable housing owners, landlords, and recipients of Federal grant funds in minimizing evictions and foreclosures.
(d) In consultation with the Secretary of the Treasury, the Director of FHFA shall review all existing authorities and resources that may be used to prevent evictions and foreclosures for renters and homeowners resulting from hardships caused by COVID-19.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.