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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Office of the Comptroller of the Currency, Treasury (OCC); Board of Governors of the Federal Reserve System (Board); Federal Deposit Insurance Corporation (FDIC); Securities and Exchange Commission (SEC); and Commodity Futures Trading Commission (CFTC).
Notification of correction.
The OCC, Board, FDIC, SEC, and CFTC (together, the agencies) are issuing this correction to make technical corrections to the
Effective October 1, 2020.
The agencies are issuing this correction to make technical corrections to the final rule adopting amendments to the regulations implementing section 13 of the Bank Holding Company Act published on July 31, 2020 (the 2020 amendments).
In the
Board of Governors of the Federal Reserve System.
Dated at Washington, DC, on or about September 18, 2020.
By the Securities and Exchange Commission.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for Bell Helicopter Textron Canada Limited (BHTC) Model 429 helicopters. This AD requires repetitive inspections of certain cyclic and collective assembly bearings. This AD was prompted by reports that precipitation can lead to reduced effectiveness of the grease in the bearings. The actions of this AD are intended to address an unsafe condition on these products.
This AD is effective October 30, 2020.
For service information identified in this final rule, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone 450-437-2862 or 800-363-8023; fax 450-433-0272; or at
You may examine the AD docket on the internet at
David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to BHTC Model 429 helicopters with a bellcrank assembly part number (P/N) 429-001-523-101, 429-001-523-103, 429-001-532-101 or 429-001-532-103 installed. The NPRM published in the
Transport Canada, which is the aviation authority for Canada, has issued Canadian AD CF-2016-11R2, dated October 18, 2017, to correct an unsafe condition for BHTC Model 429 helicopters equipped with a bellcrank assembly P/N 429-001-523-101, 429-001-523-103, 429-001-532-101 or 429-001-532-103. Transport Canada advises that in-service reports show that bearings in the roof-mounted flight control bellcranks are adversely affected by precipitation. Pooling can occur at the forward portion of the roof, providing a source of contamination for bearings in the roof-mounted flight controls. Precipitation may reduce the effectiveness of the grease in the bearings, allowing corrosion to occur. This can result in intermittent restrictions, such as binding and roughness in the flight controls. Transport Canada also advises that an undetected corroded bearing could lead to restrictions in the collective, directional, or pitch control systems, resulting in difficulty controlling the helicopter.
Transport Canada consequently requires within 12 months after the helicopter was manufactured and thereafter at intervals not to exceed 6 months, inspecting the flight controls and replacing any discrepant bearings. If the helicopter's age exceeds 12 months, Transport Canada requires the 12-month inspection within 30 days. Transport Canada also requires, within 30 days, performing a functional check and replacement, if applicable, of the bearings if the most recent functional check of the helicopter was performed with the alternate procedure of using a hydraulic test stand or if the inspection method is unknown.
After the NPRM was published, the FAA received comments from two commenters. However, the comments addressed neither the proposed actions nor the determination of the cost to the public. Therefore, the FAA has made no changes based on those comments.
These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United
The FAA considers this AD to be an interim action. If final action is later identified, the FAA might consider further rulemaking then.
Transport Canada provides requirements if the most recent functional procedure was performed using a hydraulic test stand as an alternate procedure. This AD provides no such alternate procedure.
The FAA reviewed Bell Helicopter Alert Service Bulletin 429-15-21, Revision B, dated May 11, 2017 (ASB), which specifies moving the cyclic stick fore, aft, and laterally, and the collective stick up and down from stop to stop to detect deteriorated pivot bearings. The ASB also specifies inspecting to determine whether the bearings in the collective, lateral, and longitudinal arm assemblies rotate freely. If discrepant arm bearings are found, the ASB specifies contacting BHTC Product Support Engineering to report the findings and replacing the discrepant parts with serviceable parts.
The FAA estimates that this AD affects 64 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this AD.
Inspecting the cyclic and the collective for roughness takes about 3 work-hours for an estimated cost of $255 per helicopter, and $16,320 for the U.S. fleet, per inspection cycle.
Replacing six pivot bearings takes about 3 work-hours and parts cost about $624 for an estimated cost of $879 per helicopter.
Replacing three arm end bearings takes about 3 work-hours and parts cost about $135 for an estimated cost of $390 per helicopter.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on helicopters identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Bell Helicopter Textron Canada Limited Model 429 helicopters with a bellcrank assembly part number (P/N) 429-001-523-101, 429-001-523-103, 429-001-532-101, or 429-001-532-103 installed, certificated in any category.
This AD defines the unsafe condition as precipitation in the forward portion of the roof structure that can lead to pooling at the bellcrank assembly and corrosion of the bearings. This condition could result in restrictions in the collective, directional or pitch control systems, and subsequent loss of helicopter control.
This AD becomes effective October 30, 2020.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 12 months after the helicopter was manufactured or 30 days after the effective date of this AD, whichever occurs later, and thereafter at intervals not to exceed 6 months:
(1) Disconnect the forward ends of the collective control tube, longitudinal stability and control augmentation system (SCAS) actuator, and lateral SCAS actuator. Stow the collective control tube and each SCAS actuator to prevent binding.
(2) Slowly move the cyclic stick fore/aft and laterally, and the collective stick up/down from stop to stop to determine if there is any roughness. If there is any roughness in the flight control system, before further flight, replace all six pivot bearings, P/N MS27646-41, in the collective lateral bellcrank assembly and the longitudinal bellcrank assembly.
(3) Inspect the collective arm assembly P/N 429-001-525-101, the lateral arm assembly P/N 429-001-527-101, and the longitudinal arm assembly P/N 429-001-530-101, by rotating each bearing and ensuring each bearing rotates freely. If there is any binding in any arm end bearing or on the longitudinal bellcrank assembly, before further flight, replace each arm end bearing.
Special flight permits are prohibited.
(1) The Manager, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under
(1) Bell Helicopter Alert Service Bulletin 429-15-21, Revision B, dated May 11, 2017, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone 450-437-2862 or 800-363-8023; fax 450-433-0272; or at
(2) The subject of this AD is addressed in Transport Canada Civil Aviation (Transport Canada) AD No. CF-2016-11R2, dated October 18, 2017. You may view the Transport Canada AD on the internet at
Joint Aircraft Service Component (JASC) Code: 2700, Flight Control System.
In rule document 2020-18543 beginning on page 53068 in the issue of Thursday, August 27, 2020, make the following corrections:
1. (a) On page 53074, in the second column, in the second full paragraph, in the ninth line “$100 ×” should read “$100x”.
(b) On the same page, in the same column, in the same paragraph, in the 13th line “$100 ×” should read “$100x”.
(c) On the same page, in the same column, in the same paragraph, in the 21st line “$100 ×” should read “$100x”.
2. On page 53074, in the second column, in the second full paragraph, in the 15th line “$1 ×” should read “$1x”.
3. On page 53074, in the second column, in the second full paragraph, in the 17th line “$99 ×” should read “$99x”.
4. (a) On page 53075, in the third column, in the first full paragraph, in the 11th line “$100 ×” should read “$100x”.
(b) On the same page, in the same column, in the same paragraph, in the 13th line “$100 ×” should read “$100x”.
(c) On the same page, in the same column, in the same paragraph, in the 15th line “$100 ×” should read “$100x”.
(d) On the same page, in the same column, in the same paragraph, in the 20th line “$100 ×” should read “$100x”.
(e) On the same page, in the same column, in the same paragraph, in the 27th line “$100 ×” should read “$100x”.
(f) On the same page, in the same column, in the same paragraph, in the 37th line “$100 ×” should read “$100x”.
5. On page 53086, in § 1.245A-5, in the third column, in the second full paragraph, in the 19th line the heading “(B) Special rules regarding carryover foreign target stock.” should start a new paragraph.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) establishes the approximately 815-acre “Candy Mountain” viticultural area in Benton County, Washington. TTB is also expanding the boundary of the existing 1,093-square mile Yakima Valley viticultural area by approximately 72 acres in order to avoid a partial overlap with the newly established Candy Mountain viticultural area. Both the existing Yakima Valley viticultural area and the newly established Candy Mountain viticultural area are located entirely within the existing Columbia Valley viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase.
This final rule is effective October 26, 2020.
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated the functions and duties in the administration and enforcement of these provisions to the TTB Administrator through Treasury Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003).
Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission to TTB of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having
Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:
• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed AVA;
• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon;
• If the proposed AVA is to be established within, or overlapping, an existing AVA, an explanation that both identifies the attributes of the proposed AVA that are consistent with the existing AVA and explains how the proposed AVA is sufficiently distinct from the existing AVA and therefore appropriate for separate recognition; and
• A detailed narrative description of the proposed AVA boundary based on USGS map markings.
TTB received a petition from Dr. Kevin R. Pogue, a professor of geology at Whitman College, proposing the establishment of the “Candy Mountain” AVA in Benton County, Washington. The proposed Candy Mountain AVA lies entirely within the established Columbia Valley AVA (27 CFR 9.74) and partially within the established Yakima Valley AVA (27 CFR 9.69). To avoid the partial overlap, the petition also proposed expanding the Yakima Valley AVA by approximately 72 acres so that the entire proposed Candy Mountain AVA would be within the established AVA. Dr. Pogue submitted the petition on behalf of the following industry members with wine businesses within the proposed AVA: Ramer Holtan, who is developing a commercial wine grape vineyard on Candy Mountain; Premiere Columbia Partners LLC, owners of Candy Mountain Vineyard; and Paul and Vickie Kitzke, owners of Kitzke Cellars.
Within the 815-acre proposed AVA, there are currently two producing commercial vineyards, Candy Mountain Vineyard and Kitzke Cellars, which cover a total of approximately 54 acres. Additionally, Mr. Holtan has secured long-term leases from the Washington Department of Natural Resources to plant 200 additional acres of vineyards within the proposed AVA. A copy of the lease was included in the petition as evidence of Mr. Holtan's intent to grow wine grapes. Currently, Kitzke Cellars is the only winery within the proposed AVA, although the petition notes that other wineries in Washington produce wines from grapes grown within the proposed AVA. According to the petition, the distinguishing features of the proposed Candy Mountain AVA are its soils and topography.
The soils of the proposed Candy Mountain AVA are developed from wind-deposited silt (loess) and fine sand overlying sediment. The sediment is a mixture of gravel and sand that was derived directly from surging ice-age flood waters and also includes silt and fine sand that settled out of suspension when the flood waters pooled behind downstream topographic restrictions. The loess and sediment, in turn, both overlay basalt bedrock. The thickness of the flood-water sediment within the proposed Candy Mountain AVA gradually decreases as one moves up the mountain, and the sediment is not found within the upper 70 feet of the proposed AVA. By contrast, the regions to the north, south, and west of the mountain and the proposed Candy Mountain AVA are at lower elevations and, therefore, have thicker accumulations of flood sediments in their soils.
According to the petition, the soils of the proposed AVA have an effect on viticulture. The soils are fairly loose, which allows for root expansion. The soils also do not have a large water holding capacity, meaning that vineyard owners must monitor soil moisture carefully to ensure the vines have adequate access to water. Finally, the thin soils allow roots to come into contact with the underlying basalt bedrock, which is comprised of calcium-rich feldspars and other minerals that are rich in iron and magnesium, such as pyroxene and olivine. The petition states that these minerals and nutrients are only present in the bedrock, so vines planted in the surrounding regions where the soil is thicker do not have the same access to these elements as vines planted within the proposed AVA.
Topography also distinguishes the proposed Candy Mountain AVA from the surrounding regions. The proposed Candy Mountain AVA is located on the southwest-facing slope of Candy Mountain. Within the proposed AVA, elevations range from 640 feet to 1,320 feet, and slope angles are gentle to moderate and range from 2 to 20 degrees. Gentle slope angles facilitate mechanized vineyard maintenance and harvest. A south-facing slope aspect increases the amount per unit area of solar radiation that reaches the surface and promotes photosynthesis in the grape vines, as well as grape development and maturation.
By contrast, the valley floor surrounding both the entire Candy Mountain and the proposed Candy Mountain AVA is essentially flat, with slope angles of less than 2 degrees, and is susceptible to cold air pooling and the associated frosts and freezes. Additionally, much of the land immediately surrounding the proposed AVA is a valley floor with elevations below 640 feet. The exception is the northeastern side of Candy Mountain, which has similar elevations to the proposed Candy Mountain AVA but was excluded from the proposed AVA due to northeasterly slope aspect and steep slope angles of up to 60 degrees.
As previously noted, the petition to establish the proposed Candy Mountain AVA also requested an expansion of the established 1,093-square mile Yakima Valley AVA. The proposed Candy Mountain AVA is located in the northeastern portion of the Yakima Valley AVA. Most of the proposed Candy Mountain AVA would, if established, be located within the current boundary of the Yakima Valley AVA. However, unless the boundary of the Yakima Valley AVA is modified, a small portion of the proposed Candy
The petition states that the vineyards within the proposed expansion area are within the proposed Candy Mountain AVA but lie approximately 600 feet outside of the current boundary of the Yakima Valley AVA. The vineyards did not exist at the time the Yakima Valley AVA was established. However, the petition states that the proposed expansion area is associated with both the feature known as the Yakima Valley and the Yakima Valley AVA. For example, the proposed expansion area is part of the larger Yakima River drainage basin, which is a characteristic of the Yakima Valley AVA. Additionally, the petition states that the owners of Kitzke Cellars, who manage the seven acres of vineyards within the proposed expansion area, have aligned themselves with the Yakima Valley AVA through their membership in Wine Yakima Valley, which is the Yakima Valley AVA's marketing organization.
The petition asserts that the proposed expansion area has similar soils, elevation, slope angles, and slope aspect as the remainder of the proposed Candy Mountain AVA, which is within the Yakima Valley AVA. The petition also describes the general similarities that the entire proposed Candy Mountain AVA shares with the established Yakima Valley AVA, such as similar soil series and geology.
TTB published Notice No. 184 in the
In Notice No. 184, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. In addition, given the proposed Candy Mountain AVA's location within the Yakima Valley and Columbia Valley AVAs, TTB solicited comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the two established AVAs. TTB also requested comments on whether the geographic features of the proposed AVA are so distinguishable from the two established AVAs that the proposed AVA should no longer be part of the established AVAs. The comment period closed October 18, 2019.
In response to Notice No. 184, TTB received a total of two comments. One of the comments was from a winery owner who sources grapes from both the proposed Candy Mountain AVA and the adjacent Red Mountain AVA (27 CFR 9.167). The commenter supports the proposed Candy Mountain AVA because “there do appear to be differences due to a sense of place between those two adjacent (proposed) AVAs.” The second comment was from the petitioner, Dr. Kevin Pogue. In his comment, Dr. Pogue pointed out that the proposed rule incorrectly identified the size of the Yakima Valley AVA as 1,093 acres instead of 1,093 square miles. TTB notes that it has corrected the description of the size of the Yakima Valley AVA in this final rule document. Neither of the comments mentioned the proposed expansion of the established Yakima Valley AVA or the inclusion of the proposed Candy Mountain AVA within the established Yakima Valley or Columbia Valley AVAs.
After careful review of the petition and the comments received in response to Notice No. 184, TTB finds that the evidence provided by the petitioner supports the establishment of the Candy Mountain AVA and the modification of the Yakima Valley AVA boundary. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “Candy Mountain” AVA in Benton County, Washington, and modifies the boundary of the Yakima Valley AVA effective 30 days from the publication date of this document.
TTB has also determined that the Candy Mountain AVA will remain part of both the established Columbia Valley AVA and the Yakima Valley AVA. As discussed in Notice No. 184, the Candy Mountain AVA shares some broad characteristics with both established AVAs. For example, the proposed AVA is located within the Yakima River drainage basin, which is a characteristic of the Yakima Valley AVA. The Warden-Shano Association and the Scootenay-Starbuck Association soils are found within both the proposed AVA and the Yakima Valley AVA. Elevations within the proposed AVA are under 2,000 feet, which is a general characteristic of the Columbia Valley AVA. However, the Candy Mountain AVA is located on an isolated mountain, whereas the majority of the Yakima Valley and Columbia Valley AVAs are described as broad, flat valleys. Additionally, the proposed AVA has steeper slope angles than much of the land within the Columbia Valley and Yakima Valley AVAs.
See the narrative description of the boundary of the Candy Mountain AVA and the Yakima Valley AVA boundary modification in the regulatory text published at the end of this final rule.
The petitioners provided the required maps, and they are listed below in the regulatory text. The Candy Mountain AVA boundary and the modified Yakima Valley AVA boundary may also be viewed on the AVA Map Explorer on the TTB website, at
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in § 4.25(e)(3) of the TTB regulations (27 CFR 4.25(e)(3)). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See § 4.39(i)(2) of the TTB regulations (27 CFR 4.39(i)(2)) for details.
With the establishment of the Candy Mountain AVA, its name, “Candy Mountain,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulations clarifies this point. Consequently, wine bottlers using the name “Candy Mountain” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin.
The establishment of the Candy Mountain AVA will not affect the existing Columbia Valley or Yakima Valley AVAs, and any bottlers using “Columbia Valley” or “Yakima Valley” as an appellation of origin or in a brand name for wines made from grapes grown within the Columbia Valley or Yakima Valley AVAs will not be affected by the establishment of this new AVA. The establishment of the Candy Mountain AVA will allow vintners to use “Candy Mountain,” “Yakima Valley,” and “Columbia Valley” as appellations of origin for wines made primarily from grapes grown within the Candy Mountain AVA if the wines meet the eligibility requirements for these appellations.
The modification of the Yakima Valley AVA boundary will allow vintners to use “Yakima Valley,” “Columbia Valley,” and “Candy Mountain” as appellations of origin for wines made primarily from grapes grown within the expansion area if the wines meet the eligibility requirements for these appellations.
TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.
Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.
Wine.
For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
(b)
(1) Walla Walla, Washington (1:250,000 scale), 1953; limited revision 1963;
(2) Yakima, Washington (1:250,000 scale), 1958; revised 1971;
(3) Benton City, WA (1:24,000 scale), 2013;
(4) Badger Mountain, Washington (1:24,000 scale), 2013; and
(5) Richland, Washington (1:24,000 scale), 2014.
(c) * * *
(4) Then southeast, crossing onto the Benton City map, to the top of Red Mountain;
(5) Then southeast to a point on East Kennedy Road approximately 2,500 feet east of an intermittent stream flowing north into Lost Lake;
(6) Then southeast across the top of Candy Mountain, crossing onto the Badger Mountain map, and continuing to the intersection with the southernmost point of an unnamed road known locally as Arena Road; then
(7) Proceed north for 0.45 mile along Arena Road, crossing onto the Richland map, to the intersection with the 670-foot elevation contour; then
(8) Proceed generally east for 0.4 mile along the elevation contour to the intersection with Dallas Road; then
(9) Proceed south in a straight line for 0.5 mile, crossing onto the Badger Mountain map, to the intersection with Interstate 182; then
(10) Proceed southeast in a straight line, crossing onto the Walla Walla map, to the top of Badger Mountain;
(a)
(b)
(1) Badger Mountain, Washington, 2013;
(2) Benton City, Washington, 2013; and
(3) Richland, Washington, 2014.
(c)
(1) The beginning point is on the Badger Mountain map at the southernmost point of an unnamed road known locally as Arena Road. From the beginning point, proceed northwest in a straight line for approximately 1.85 miles, crossing onto the Benton City map, to the intersection with East Kennedy Road NE; then
(2) Proceed westerly along East Kennedy Road NE for approximately 2,500 feet to the intersection with an intermittent creek approximately 0.8 mile south of Lost Lake; then
(3) Proceed southeasterly along the easternmost fork of the intermittent creek to the intersection with Interstate 82; then
(4) Proceed southeast along Interstate 82 for 2.25 miles, crossing over the Richland map and onto the Badger Mountain map, and continuing along the ramp onto Interstate 182 to a point due south of the intersection of Dallas Road and an unnamed road known locally as East 260 Private Road NE; then
(5) Proceed north in a straight line for 0.5 mile, crossing onto the Richland map, to the intersection of Dallas Road and the 670-foot elevation contour; then
(6) Proceed west along the 670-foot elevation contour for 0.4 mile to the intersection with Arena Road; then
(7) Proceed southerly along Arena Road for approximately 0.45 miles, returning to the beginning point.
Coast Guard, DHS.
Notification of expired temporary rules issued.
This document provides notification of substantive rules issued by the Coast Guard that were made temporarily effective but expired before they could be published in the
This document lists temporary Coast Guard rules that became effective, primarily between July 2019 and March 2020, unless otherwise indicated, and were terminated before they could be published in the
Temporary rules listed in this document may be viewed online, under their respective docket numbers, using the Federal eRulemaking Portal at
For questions on this document contact Yeoman First Class Glenn Grayer, Office of Regulations and Administrative Law, telephone (202) 372-3862.
Coast Guard District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety and security needs within their jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations.
Timely publication of these rules in the
The following unpublished rules were placed in effect temporarily during the period between July 2019 and March 2020 unless otherwise indicated. To view copies of these rules, visit
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of saflufenacil in or on the caneberry subgroup 13-07A, fig, chia seed and chia straw. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective September 25, 2020. Objections and requests for hearings must be received on or before November 24, 2020, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2019-0388, is available at
Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
Marietta Echeverria, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0388 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before November 24, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0388, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA is establishing tolerances that vary from what was requested. The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.”
Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for saflufenacil including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with saflufenacil follows.
On November 25, 2015, EPA published in the
The assessment used the same assumptions concerning percent crop treated and tolerance-level residues and the same estimated drinking water concentrations as the November 25, 2015 final rule.
Acute dietary risks are below the Agency's level of concern of 100% of the acute population adjusted dose (aPAD): They are less than 1% of the aPAD for all infants less than 1 year old, the population subgroup with the highest exposure estimate. Chronic dietary risks are below the Agency's level of concern of 100% of the chronic population adjusted dose (cPAD): They are 20% of the cPAD for all infants less than 1 year old, the population subgroup with the highest exposure estimate. There is no short- or intermediate-term exposure expected since there are no residential uses. Therefore, the acute and chronic aggregate risks consist only of the dietary risks from food and water and, as stated above, are below the Agency's level of concern.
Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to saflufenacil residues. More detailed information about the Agency's analysis can be found at
Adequate enforcement methodology (liquid chromatography/mass spectroscopy/mass spectroscopy (LC/MS/MS) Method D0603/02 is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. No Codex MRLs have been established for saflufenacil on fig, chia and caneberry.
The tolerance levels being established by EPA for the caneberry subgroup 13-07A and fig differ from those proposed by the petitioner due to differences in calculating the combined limits of quantitation (LOQs) for residues of saflufenacil and its metabolites. The combined LOQs of 0.035 ppm were rounded to 0.04 ppm by EPA versus 0.03 ppm by the petitioner. For chia, EPA is translating from the currently established tolerances for residues on wheat commodities rather than barley commodities, resulting in tolerance levels of 0.6 ppm for Chia, seed and 6 ppm for Chia, straw. Quantifiable residues were found in dried figs; however, when residues are adjusted for the degree of exaggeration, the residue value is below the recommended fresh fig tolerance level (0.04 ppm). A separate tolerance for residues on dried fig is therefore not required.
Therefore, tolerances are established for residues of saflufenacil in or on the caneberry subgroup 13-07A at 0.04 ppm; chia, seed at 0.6 ppm; chia, straw at 6 ppm; and fig at 0.04 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances and modifications in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
(1) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of
This regulation is effective September 25, 2020. Objections and requests for hearings must be received on or before November 24, 2020, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2019-0324, is available at
Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
Anne Overstreet, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0324 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 24, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0324, by one of the following methods:
•
•
•
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a
EPA evaluated the available toxicity and exposure data on
The available data demonstrated that, with regard to humans,
Based upon its evaluation, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of
An analytical method for enforcement purposes is not required because EPA has determined that reasonably foreseeable exposure to residues of
This action establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this action, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require EPA's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:
21 U.S.C. 321(q), 346a and 371.
An exemption from the requirement of a tolerance is established for residues of
Environmental Protection Agency (EPA).
Final rule.
This regulation amends the existing tolerance exemptions for residues of
This regulation is effective September 25, 2020. Objections and requests for hearings must be received on or before November 24, 2020 and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2019-0692, is available at
Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
Anne Overstreet, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0692 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before November 24, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0692, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Since the time the original notice of filing was published, the petitioner provided a revised petition requesting a revision to the existing tolerance exemption to include all food and feed commodities of almond; corn, field; corn, pop; corn, sweet; peanut; and pistachio. In order to give the public an opportunity to comment on this new information, EPA published its receipt of this revised petition in the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement of a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”
EPA evaluated the available toxicological and exposure data on
An analytical method is not required for
Therefore, the existing tolerance exemption for
This action modifies and establishes tolerance exemptions under FFDCA section 408(d) in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act, 44 U.S.C. 3501
Since tolerances and exemptions that are modified on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this action, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA determined that this action will not have a substantial direct effect on States or Tribal governments, on the relationship between the National Government and the States or Tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, EPA determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require EPA's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:
21 U.S.C. 321(q), 346a and 371.
Residues of
Environmental Protection Agency (EPA).
Final rule.
With the publication of this Final Rule, the Environmental Protection Agency (EPA) is designating one ocean dredged material disposal site (ODMDS), the Isles of Shoals North Disposal Site (IOSN), located in the Gulf of Maine off the coast of southern Maine and New Hampshire, pursuant to the Marine Protection, Research, and Sanctuaries Act (MPRSA). This action is necessary to serve the long-term need for an ODMDS for the possible future disposal of suitable dredged material from harbors and navigation channels in southern Maine, New Hampshire, and northern Massachusetts. The basis for this action is described herein and in the Final Environmental Assessment (FEA). The FEA identifies designation of the IOSN as the preferred alternative from the range of options considered. The Site Management and Monitoring Plan (SMMP) is provided as Appendix G of the FEA.
The Final rule is effective on October 26, 2020.
EPA has established a docket for this action under Docket Identification No. EPA-R01-OW-2019-0521, through the Federal eRulemaking Portal:
The supporting document for this site designation is the
Ms. Regina Lyons, U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Mail Code: 06-1, Boston, MA 02109-3912, telephone: (617) 918-1557; fax: (617) 918-0557; email address:
Organization of this document. The following outline is provided to aid in locating information in this preamble.
EPA is publishing this Final Rule to designate the IOSN for the purpose of providing an ocean disposal option for possible use in managing dredged material from harbors and navigation channels in the southern Maine, New Hampshire, and northern Massachusetts coastal region. The site designation is effective for an indefinite period of time. Without designation of this ODMDS, there will not be an ocean disposal site available to serve this region after December 31, 2021, when the current Congressionally-authorized term of use for the Cape Arundel Disposal Site (CADS) expires. Use of the IOSN is subject to any restrictions and procedures included in the site designation and the approved SMMP. These restrictions are based on a thorough evaluation of the site pursuant to the Ocean Dumping Regulations, potential disposal activity expected at the site, and consideration of public review and comment. Additional restrictions may be placed on any permit or authorization to use the site.
The site designation process has been conducted pursuant to the requirements of the MPRSA, Coastal Zone Management Act (CZMA), and other applicable federal and state statutes and regulations. Compliance with these requirements is described in detail in Section VII (“Compliance with Statutory and Regulatory Requirements”). The basis for this federal action is further
On September 18, 2019, EPA published in the
The MPRSA directs EPA to designate “sites . . . for [permitted] dumping that will mitigate adverse impact on the environment to the greatest extent practicable.” 33 U.S.C. 1412(c). On October 1, 1986, the Administrator delegated the authority to designate ODMDS to the Regional Administrator of the Region in which the sites are located. The preferred alternative site, IOSN, is located within the area assigned to EPA Region 1. 40 CFR 1.7(b)(1). Therefore, this designation is occurring pursuant to the EPA Region 1 Administrator's delegated authority.
EPA designates ODMDS by regulation. 40 CFR 228.4(e)(1), 228.15. There are currently no EPA-designated dredged material disposal sites off the coast of southern Maine, New Hampshire, or northern Massachusetts.
Designation of an ODMDS by EPA does not by itself authorize the disposal at that site of dredged material from any dredging project. Designation of the IOSN would only make that ocean site available for disposal of dredged material from specific projects after they have been permitted or authorized by the USACE pursuant to the MPRSA. Such permit or authorization will only be provided if the applicable MPRSA regulations are satisfied, which means that no other environmentally preferable, practicable alternative for managing that dredged material exists, and that evaluation of the dredged material indicates that it is suitable for ocean disposal under the MPRSA.
The Congressionally-defined purpose of the MPRSA is to “regulate the dumping of all types of materials into ocean waters and to prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities.” 33 U.S.C. 1301. Therefore, “no person shall transport from the United States . . . any material for the purpose of dumping it into ocean waters,” except as authorized by permit and subject to EPA regulations. 33 U.S.C. 1411. EPA sets forth regulations implementing the MPRSA at 40 CFR parts 220-229 (Ocean Dumping Regulations). The relevant regulations are discussed in greater detail below, in the Compliance with Statutory and Regulatory Authorities section.
Under the Ocean Dumping Regulations, EPA is responsible for the management of all ocean disposal sites designated under the MPRSA.
Periodic dredging of harbors and channels and, therefore, dredged material management, are essential for ensuring safe navigation and facilitating marine commerce. This is because the natural processes of erosion and siltation result in sediment accumulation in federal navigation channels, harbors, port facilities, marinas, and other important areas of our water bodies. Unsafe navigational conditions not only threaten public safety, but also pose an environmental threat from an increased risk of spills from vessels involved in accidents.
Economic considerations also contribute to the need for dredging (and the environmentally sound management of dredged material). There are many important navigation-dependent businesses and industries in the southern Maine, New Hampshire, and northern Massachusetts coastal region, including shipping (especially the transportation of petroleum fuels and bulk materials), recreational boating-related businesses, marine transportation, commercial and recreational fishing, interstate ferry operations, and U.S. Navy and U.S. Coast Guard facilities. These businesses and industries contribute substantially to the region's economic output, the gross state product of the bordering states, and tax revenue. Continued access to harbors, berths, and mooring areas is vital to ensuring the continued economic health of these industries, and to preserving the ability of the region to import fuels, bulk supplies, and other commodities at competitive prices and to preserve ocean access for the commercial fishing fleet. In addition, preserving navigation channels, marinas, harbors, berthing areas, and other marine resources, improves the quality of life for residents and visitors to the southern Maine, New Hampshire, and northern Massachusetts region by facilitating recreational boating and associated activities, such as fishing and sightseeing.
The purpose of this action is to designate an ocean disposal site that will provide a long-term dredged material disposal option for dredged material from harbors and navigation channels in southern Maine, New Hampshire, and northern Massachusetts. This is necessary to ensure the viability of dredging projects needed to maintain international commerce and navigation through authorized federal navigation projects and to ensure safe vessel passage for public and private entities.
Other factors that EPA considered in determining the need for an ODMDS to serve this region include: (1) Projected dredging needs for the area were calculated to be approximately 1.5 million cubic yards (mcy) of material over the next 20 years, which significantly exceeds the capacity of available practicable alternatives to ocean disposal; (2) the states of Maine and New Hampshire have expressed concern that available, practicable dredged material disposal capacity is insufficient to meet projected long-term dredging needs and asked EPA to designate a new site; (3) the historically used (from 1964-1970, according to USACE records) former Isles of Shoals Disposal Site (IOSH) was examined for potential designation, however, this former site is located in an area that contains a diversity of habitats that are not compatible with the ocean disposal of dredged material; (4) the existing CADS is a USACE short-term selected site under MPRSA section 103(b) that is scheduled to close on December 31, 2021; EPA considered designating an expanded CADS, but studies revealed that suitable areas with the capacity for an ODMDS are limited in and around CADS; and (6) the closest EPA-designated ODMDSs to the southern Maine, New Hampshire, and northern Massachusetts region are the Portland Dredged Material Disposal Site (PDS) and the Massachusetts Bay Disposal Site (MBDS), which are about 85.5 nautical miles (nmi) apart and would result in 30-40 nmi haul distances for several dredging centers in the region, rendering some dredging projects infeasible.
As one of the first steps in the site designation process, EPA, in coordination with other federal and state agencies, delineated a Zone of Siting Feasibility (ZSF). The ZSF is the geographic area from which reasonable and practicable ODMDS alternatives should be selected for evaluation. EPA's 1986 site designation guidance manual describes the factors that should be considered in delineating the ZSF and recommends locating open-water disposal sites within an economically and operationally feasible radius from areas where dredging occurs. EPA, Office of Marine and Estuarine Protection, Ocean Dumping Site Designation Delegation Handbook for Dredged Material (1986). This manual also directs EPA to consider navigational restrictions, political or other jurisdictional boundaries, the distance to the edge of the continental shelf, the feasibility of surveillance and monitoring, and operation and transportation costs. The ZSF described in Section 4 of the FEA includes the coastal waters of the southern Maine, New Hampshire, and northern Massachusetts region between Cape Porpoise, Maine, and Cape Ann, Massachusetts. These boundaries were chosen because the center point between them is roughly equidistant to the PDS to the north off Cape Elizabeth, Maine, and the MBDS to the south off Boston Harbor, Massachusetts. Factors involved in defining the ZSF include dredge cycle time, weather, and distance from harbors and navigation channels that require dredging. Adding a site roughly central to this area of the coast would result in a maximum haul distance of about 21 miles from any harbor to either the PDS, MBDS, or the new centrally located site.
EPA does not consider the PDS and MBDS to be viable options for the southern Maine, New Hampshire, and northern Massachusetts region given their distance from the ZSF, which would significantly increase the transport distance for, and duration of, ocean disposal for dredging projects from that region. This, in turn, would greatly increase the cost of such projects and would likely render many dredging projects too expensive to conduct, thus threatening safe navigation and interfering with marine commerce and recreation. Furthermore, the greater transport distance would also be environmentally detrimental because it would entail greater energy use, increased air emissions, dredging projects of increased duration (with their own, separate, impacts), and increased risk of spills or disposal outside of the designated site (“short dumps”) (FEA, Section 7.0).
Because the CADS is nearing capacity and its authorized use is expiring on December 31, 2021, EPA's ocean disposal site designation studies were designed to determine whether this site or any other sites should be designated for long-term use.
The IOSN is located in the Gulf of Maine, approximately 10.8 nmi east of Portsmouth, New Hampshire, 9.55 nmi southeast of Kittery, Maine, and 6.04 nmi northeast of Eastern Island, the closest of the Isles of Shoals. As described in Section 4 of the SMMP, the site is delineated as an 8,530 ft diameter circle on the seafloor with its center located at 70° 26.995′ W and 43° 1.142′ N. Water depths at the IOSN range from 295 ft on the western edge of the site to 328 ft on the eastern edge as the seafloor gradually slopes from west to east. The surficial sediments at the site are predominately soft, fine-grained silts and clays. The seafloor within the site is generally a smooth, soft-textured surface with topographic highs present outside the western, northern, and southeastern, boundaries of the site.
Three reference areas (REF-A, REF-B, and REF-C), to be used for site monitoring purposes, are defined as 820 ft radius circles located at 70° 25.165′ W, 42° 59.282′ N; 70° 28.039′ W, 43° 0.257′ N; and 70° 27.895′ W, 43° 2.280′ N, respectively. The reference areas were selected based on a review of existing data and confirmed through a baseline survey to represent areas of the seafloor with similar bathymetric characteristics as the IOSN (see SMMP, p. 12).
Because the IOSN is offshore and in deep water, as described in the previous section, it is not expected to affect near-shore entities. Persons potentially affected by this action include those who seek or might seek permits or approval to dispose of dredged material into ocean waters pursuant to the MPRSA, 33 U.S.C. 1401 to 1445. This Final Rule is expected to be primarily of relevance to: (a) Persons, including organizations and government bodies, seeking MPRSA permits from the USACE to authorize the transport of dredged material for disposal into the ocean waters off the coast of southern Maine, New Hampshire, and northern Massachusetts; and (b) to the USACE itself for its own dredged material projects involving ocean disposal.
Potentially affected entities and categories of entities that may seek to use the IOSN and would be subject to the Final Rule include:
This table is not intended to be comprehensive, but rather provides a guide for readers regarding the types of entities that could potentially be affected by the Final Rule. EPA notes that nothing in this Final Rule alters the jurisdiction or authority of EPA, the USACE, or the types of person regulated under the MPRSA.
On September 18, 2019, EPA published a Proposed Rule in the
EPA received fifteen comments on the Proposed Rule and DEA from the Department of Interior (DOI); the states of Maine and Massachusetts; the University of New Hampshire Shoals Marine Laboratory (SML); representatives of the fishing industry, including fin fish and lobster; environmental groups; and private citizens. EPA received comments both in support of, and in disagreement or raising concerns with, its proposed action, with some offering suggested improvements. There was some overlap among the comments received. The most significant comments received by EPA are summarized below:
EPA has prepared a Response to Comments document with individual responses to each group of similar comments which, along with copies of each of the public comments, have been included as Appendix J and Appendix I, respectively, of the FEA, which is available on the website identified in the
In addition to preparing a Response to Comments document, EPA has addressed some of the public comments by (1) adding some new information about, and enhancing some of the descriptions of, marine resources in the vicinity of the IOSN; (2) enhancing the description of the location of the IOSN; and (3) adding a new site management protocol.
As described above, several commenters, including DOI and the SML, noted that the roseate tern, a federally-listed endangered species, was not included in the description of endangered species that may use the area in which the IOSN is located in the DEA, and that therefore its potential presence was not considered in assessing the impact of designating the IOSN. EPA has since consulted with the USFWS on the roseate tern, in addition to other endangered and threatened species potentially using the area and has added information about the roseate tern and its potential use of this area to the FEA. As discussed in the ESA subsection of the Compliance with Statutory and Regulatory Authorities section of this Final Rule, the USFWS concurred with EPA's determination that the designation of the IOSN would not likely adversely impact any of the endangered and threatened species that may use the area of the IOSN.
A couple of commenters, including the SML, stated that the presence of whales, and particularly North Atlantic right whales, in the vicinity of the IOSN was not adequately characterized in the DEA, and that therefore the impact of designating the IOSN on these species was not adequately considered in the DEA or Proposed Rule. EPA has since consulted with NMFS on right whales and other endangered and threatened species potentially using the area and has included additional information and analysis about the right whale and its potential use of this area in the FEA. As discussed in the ESA subsection of the Compliance with Statutory and Regulatory Authorities section of this Final Rule, NMFS concurred with EPA's determination that the designation of the IOSN would not likely adversely impact any of the endangered and threatened species that may use the area of the IOSN.
One commenter noted that the description of the location of the proposed IOSN in the Proposed Rule and DEA did not reflect its proximity to the Isles of Shoals communities, mentioning only its distance from Portsmouth, NH. They also noted that the concerns of these communities should be considered in the decision-making process. EPA has now revised
A number of commenters, including two state fisheries agencies and the Massachusetts Lobstermen's Association, requested notification to the fishing industry of scheduled dredging and dredged material haul routes to avoid conflicts. EPA has included a new Special Management Practice (SMP) in the SMMP that includes timeframes for notifications, submissions of brief descriptions of operations and maps of haul routes, and procedures for the notice of any changes to the haul route.
In designating the IOSN for the ocean disposal of suitable dredged material from harbors and navigation channels in southern Maine, New Hampshire, and northern Massachusetts, EPA has complied with the requirements of the MPRSA, CZMA, the Endangered Species Act (ESA), the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), the National Historic Preservation Act (NHPA), and all other applicable legal requirements, as further described below. While it has been determined that EPA disposal site designation evaluations conducted under the MPRSA are “functionally equivalent” to NEPA reviews and are not subject to NEPA analysis requirements as a matter of law, EPA voluntarily uses NEPA procedures when evaluating the potential designation of ocean dumping sites. Those procedures also are described below. 63 FR 58045, 58046 (Oct. 29, 1988).
The MPRSA authorizes EPA to designate sites for permitted ocean disposal of dredged material “that will mitigate adverse impact on the environment to the greatest extent practicable.” 33 U.S.C. 1412(c). EPA regulations prescribe procedures for the designation of these sites. 40 CFR 228.4(e). EPA regulations also prescribe substantive guidelines for EPA's selection and management of disposal sites.
EPA promulgates final disposal site designations at 40 CFR 228.15. To finalize a site designation, EPA must develop a site management plan which includes specific details laid out by statute. 33 U.S.C. 1412 (c)(4). Post-designation, EPA must, with USACE, manage and monitor disposal sites.
EPA's compliance with each of these statutory and regulatory requirements in designating IOSN is described in greater detail below.
Site designations for dredged material are to “be made based on environmental studies of each site, regions adjacent to the site, and on historical knowledge of the impact of dredged material disposal on areas similar to such sites in physical, chemical, and biological characteristics.” 40 CFR 228.4. Additionally, “the results of a disposal site evaluation and/or designation study . . . will be presented in support of the site designation promulgation as an environmental assessment of the impact of the use of the site for disposal, and will be used in preparation of environmental impact statement [“EIS”] for each site where such a statement is required by EPA policy.” 40 CFR 228.6. EPA policy does not, however, require the preparation of an EIS for all MPRSA site designations. As described above, EPA's site designation decisions are exempt from the requirements of NEPA, but pursuant to EPA's Voluntary NEPA Policy, the Agency nevertheless prepares NEPA analyses to support site designation decisions.
EPA has complied with all procedural requirements related to the publication of this Final Rule and associated FEA. EPA, with appropriate consultation with neighboring states and other agencies, completed an environmental assessment of the impact of designating the IOSN. Furthermore, the DEA, including the draft SMMP, and Proposed Rule were made available for public comment on September 18, 2019, through publication in the
EPA regulations under the MPRSA identify four general criteria and 11 specific criteria for evaluating locations for the potential designation of dredged material disposal sites. 40 CFR 228.5, 228.6. The evaluation of the IOSN with respect to the four general and 11 specific criteria is discussed in detail in the Section 4 of the FEA and supporting documents and is summarized below.
As described in greater detail in the FEA, and summarized below, EPA has determined that the IOSN satisfies the four general criteria specified in 40 CFR 228.5.
EPA's evaluation determined that use of the IOSN would cause minimal interference with the activities identified in the criterion. EPA and the USACE used information from a variety of sources to determine what activities might be interfered with by the disposal of dredged material at the IOSN. EPA considered recreational activities, commercial fishing areas, cultural or historically significant areas, commercial and recreational navigation, and existing scientific research activities. EPA and the USACE used Geographic Information System data to overlay the locations of various uses and natural resources of the marine environment on the disposal site location and surrounding areas (including their bathymetry). Analysis of these data indicated that use of the site would have minimal potential for interfering with other ongoing uses of the marine environment in and around
EPA's analysis concludes that the IOSN satisfies this criterion. First, the site will be used only for the disposal of dredged material determined to be suitable for ocean disposal by application of the MPRSA's ocean dumping criteria.
EPA has determined, based on the information presented in the FEA, that the IOSN alternative is sufficiently limited in size to allow for the identification and control of any immediate adverse impacts, and to permit the implementation of effective monitoring and surveillance to prevent adverse long-range impacts. The IOSN covers approximately 2.4 nmi
The IOSN is identified by specific coordinates spelled out in the Disposal Site Description section of this Final Rule and the FEA, and the use of precision navigation equipment in both dredged material disposal operations and monitoring efforts will enable accurate disposal operations and contribute to effective management and monitoring of the sites. Detailed plans for the management and monitoring of the IOSN are described in the SMMP (Appendix G of the FEA). Finally, as discussed herein and in the FEA, EPA has tailored the size of the IOSN based on site characteristics, such as bottom sediment type and bottom features, so that the area and boundaries of the sites are optimized for environmentally sound dredged material disposal operations.
EPA has determined that designation of the IOSN is consistent with this criterion. EPA evaluated sites beyond the edge of the continental shelf and historical disposal sites in the Gulf of Maine as part of the alternative analysis conducted for the FEA. Potential disposal areas located off the continental shelf would be infeasible due to their very substantial distance offshore, which would render them impracticable for dredging projects from the area under evaluation (
USACE dredging and disposal records do not show evidence of dredged material ever having been placed at the area that encompasses the IOSN. The only sites within the ZSF that have been used historically are the former IOSH which, according to USACE records, was used from 1964 to 1970, and the CADS, a USACE-selected MPRSA section 103 site located off Cape Arundel, Maine. However, neither the IOSH nor the CADS would meet the projected disposal needs because both are limited in their capacity to accept new material and both have seafloor areas that are incompatible with dredged material disposal due to the diversity of habitat and sediment types.
As described in greater detail in Section 4 of the FEA, and summarized below, EPA has determined that the IOSN satisfies the eleven specific criteria set out in 40 CFR 228.6.
Based on analyses in the FEA, EPA has concluded that the geographic position (
The IOSN is a depositional area (
EPA considered the IOSN in relation to breeding, spawning, nursery, feeding, and passage areas for adult and juvenile phases (
Generally, there are three primary ways that the transportation and disposal of dredged material could potentially adversely affect marine resources. First, disposal can cause physical impacts by injuring or burying less-mobile fish, shellfish, and benthic organisms, as well as the eggs and larvae of these less-mobile species. Second, tug and barge traffic transporting the dredged material to a disposal site could possibly collide or otherwise interfere with marine mammals and reptiles. Third, contaminants in the dredged material could potentially bioaccumulate through the food chain. However, EPA, the USACE, and other federal and state agencies that regulate dredging and dredged material disposal administer regulatory requirements designed to prevent these types of impacts from occurring.
Dredged material disposal will have some localized impacts to fish, shellfish, and benthic organisms, such as clams and worms, that are present at an ocean disposal site (or in the water column directly above the site) during a disposal event. The sediment plume may entrain and smother some fish in the water column, and may bury some fish, shellfish, and other marine organisms on the seafloor. It also may result in a short-term loss of forage habitat in the immediate disposal area, but recolonization of disposal mounds in the IOSN by benthic infauna is expected within one to three years after disposal, based on extensive monitoring at other disposal sites in New England. As discussed in the FEA (Section 7.5.2), over time, disposal mounds recover and develop abundant and diverse biological communities that are healthy and able to support species typically found in the ambient surroundings. Some organisms may burrow deeply into sediments, often up to 20 inches, and are more likely to survive a burial event.
Regarding the potential for tug and barge impacts to endangered species, EPA complied with the ESA by consulting with the National Oceanic and Atmospheric Administration's (NOAA) National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) on EPA's determinations that designation of the IOSN would not likely adversely affect federally-listed species under their respective jurisdictions or any habitat designated as critical for such species. EPA also coordinated with NMFS under the MSFCMA on potential impacts to essential fish habitat (EFH). Further details on these consultations are provided in the FEA and the sections below describing compliance with the ESA and MSFCMA.
To further reduce potential environmental impacts associated with dredged material disposal, the dredged material from each proposed dredging project will be subjected to the MPRSA sediment testing requirements set forth at 40 CFR part 227 to determine its suitability for ocean disposal. Suitability for ocean disposal is determined by testing the proposed dredged material for toxicity and bioaccumulation to assess the potential risk to the marine environment and human health. If it is determined that the sediment is unsuitable for ocean disposal—that is, that it may unreasonably degrade the marine environment or endanger human health via the food chain—it cannot be disposed at disposal sites designated or selected under the MPRSA.
EPA recognizes that dredged material disposal causes some short-term, localized adverse effects to marine organisms in the immediate vicinity of each disposal event. But because many organisms are likely to recover after any potential burial events, because dredged material disposal would be limited to suitable material, and because tugs and barges transporting dredged material take significant measures to avoid collisions with marine mammals, EPA concludes that designating the IOSN will not cause unacceptable or unreasonable adverse impacts to breeding, spawning, nursery, feeding, or passage areas of living resources in adult or juvenile phases.
EPA's analysis concludes that the IOSN satisfies this criterion. The IOSN is located approximately 10.8 nmi east of Portsmouth, New Hampshire, 9.55 nmi southeast of Kittery, Maine and 6.04 nmi northeast of Eastern Island, the closest of the Isles of Shoals. The shoreward edge of the site is approximately 9 nmi from the nearest beaches in Rye, New Hampshire, and is located in waters ranging in depth from 295 to 328 feet. The IOSN is far enough away from beaches, parks, wildlife refuges, and other areas of special concern to prevent adverse impacts to these amenities. Based on information presented in Section 6.3 of the FEA, and past monitoring of disposal at other ODMDS in New England, this distance is beyond any expected movement of dredged material due to tidal motion or currents. As noted above, any temporary perturbations in water quality or other environmental conditions at the site during initial mixing from disposal operations will be limited to the immediate area of the site and will not reach any beaches, parks, wildlife refuges, or other areas of special concern.
Thus, EPA does not anticipate that the use of the IOSN would cause any adverse impacts to beaches or other amenity areas.
Only suitable dredged material that meets the Ocean Dumping Criteria in 40 CFR 220-228 and receives a permit or
Dredged material dumped at the site is anticipated to be transported to the IOSN by either government or private contractor hopper dredges or scows with capacities ranging from 800 to 6,000 cubic yards (cy).
The volume of sediment to be dredged from federal navigation projects and non-federal marinas and boatyards in the southern Maine, New Hampshire, and northern Massachusetts region varies greatly from year to year depending upon need and funding. However, as previously discussed, and based on the dredging history of this region, maintaining and improving these navigational features is projected to generate approximately 1.5 million cy of dredged material over the next 20 years. Some of the sediments will be beneficially used, like sand that can be used for beach nourishment, and some will be unsuitable for ocean disposal and need to be disposed of through alternative means, but the remainder of the material that is suitable for ocean disposal can be disposed of in the IOSN. Most of the dredged material that would be disposed of in the IOSN would originate from the dredging of navigation channels and harbors in the region and would consist primarily of fine-grained marine sediments that have been transported into these areas by tidal currents, riverine deposition, and upland erosion. The fine-grained material undergoes rigorous testing to confirm that it is suitable for unconfined ocean placement. The IOSN has been sized to accommodate the quantity of material expected to be placed there over the 20-year planning horizon. For all these reasons, no significant adverse impacts are expected to be associated with the types and quantities of dredged material that may be disposed at the IOSN.
Monitoring for baseline conditions has already been conducted at the IOSN and adjacent areas by the USACE Disposal Area Monitoring System (DAMOS), and it is anticipated that monitoring and other surveillance activities will continue to be feasible at the IOSN in the future. Monitoring of EPA-designated ocean disposal sites is conducted according to the approved SMMP. The current approved SMMP for the IOSN is included as Appendix G of the FEA. EPA must schedule the SMMP for review and revision at least every ten years. 33 U.S.C. 1412. As a depositional site that will retain the dredged material placed there, the IOSN is conducive to the type of monitoring most commonly conducted at dredged material disposal sites, including side-scan sonar, sediment profile imaging, and sediment grab sampling.
The IOSN site meets this criterion. The IOSN is located in open ocean with water depths ranging from approximately 295 to 328 feet. Water circulation in the vicinity of the IOSN is strongly influenced by the counterclockwise flow, or gyre, normally occurring in the Gulf of Maine. The circulation of the Gulf consists of two circular gyres, one counterclockwise within the interior of the Gulf, and the second, clockwise over Georges Bank. Maine coastal waters are included as the western portion of the counterclockwise gyre within the Gulf. Current patterns in the vicinity of the IOSN are typified by coastal-parallel, non-tidal southerly drift currents generated by the overall circulation of the Gulf of Maine.
The fine-grained sediments that dominate the area of the IOSN indicate that the site is in a depositional area. Consequently, any material dispose of at the IOSN would likely remain within the site and not be significantly affected or transported away from the site by currents.
USACE dredging and disposal records and site monitoring do not show any evidence of dredged material having been disposed of within the current site boundaries of the IOSN. Dredged material from the southern Maine, New Hampshire, and northern Massachusetts coastal region was historically disposed of at either the CADS or the former, historically used IOSH, which was used from 1964 to 1970.
In general, results from decades of monitoring of current and historically used ODMDS in the New England region indicate that the disposal of dredged material found suitable for ocean disposal does not significantly alter the long-term functions and values of seafloor bottom as potential habitat for biological communities or contribute to long-term changes in water quality or water circulation at the disposal sites. EPA expects this to also be the case for the IOSN.
In evaluating whether disposal activity at the site could interfere with shipping, fishing, recreation, mineral extraction, desalination, fish or shellfish culture, areas of scientific importance, and other legitimate uses of the ocean, EPA considered both the effects of disposing dredged material within the IOSN, and any effects from vessel traffic associated with transporting the dredged material to the disposal site. From this evaluation, EPA concluded there would be no unacceptable or unreasonable adverse effects on the considerations noted in this criterion. Some of the factors listed in this criterion have already been discussed above due to the overlap of this criterion with aspects of certain other criteria. Nevertheless, EPA will address each point below.
EPA does not anticipate conflicts with commercial navigation at the IOSN. The Portsmouth Pilots and the USACE discussed the IOSN disposal site location and its anticipated use with respect to navigation transit impacts (as discussed in more detail in Section 4.4.1 of the FEA). Vessels transiting to and from Portsmouth Harbor from the south and southeast follow a route inshore of the Isles of Shoals, which will avoid the area of the IOSN. Vessels approaching or departing to and from the east and northeast (toward Maine and Canada) do cross the general area of the IOSN disposal site. The pilots stated that conflicts between dredged material disposal operations and shipping for large and small projects can be avoided, however, by adequate notice to mariners of disposal activities and frequent marine communication between the disposal tugs and the Portsmouth Pilots. Given the open-water conditions around the IOSN and the relative infrequency of dredged material disposal operations, EPA concludes that any conflicts with vessels traveling in the vicinity of the IOSN should be easily managed in a safe, efficient manner.
EPA also carefully evaluated the potential effects of designating the IOSN on commercial and recreational fishing for both finfish and shellfish (including lobster) and concluded that there would be no unreasonable or unacceptable adverse effects. As discussed above in relation to other site evaluation criteria, disposal of dredged material will only have short-term, incidental, and insignificant effects on organisms in the IOSN and no appreciable effects beyond the site. Because dredged material disposal at other ODMDS in New England has not been found to have
The four main reasons that EPA concluded that no unacceptable adverse effects would occur from disposal of dredged material at the proposed site are discussed below. First, EPA has concluded that any contaminants in material permitted for ocean disposal—having satisfied the dredged material criteria in the regulations that restrict any toxicity and bioaccumulation—will not cause any significant adverse effects to fish, shellfish, or other aquatic organisms. Because the IOSN is a depositional site, dredged material disposed within the site is expected to remain there.
Second, the IOSN does not encompass any especially important, sensitive, or limited habitat for the Gulf of Maine's fish and shellfish. While the site is within the greater Gulf of Maine cod and herring spawning habitat, as previously stated, the IOSN only covers approximately 2.4 nmi
Third, while EPA found that a small number of demersal fish (
Fourth, EPA has determined that vessel traffic associated with dredged material disposal will not have any unreasonable or unacceptable adverse effects on fishing. The USACE has agreed to notify state fisheries management agencies within a prescribed timeframe before the commencement of dredging and disposal activities at the IOSN. An SMP in this regard has been incorporated into the SMMP. The SMP includes timeframes for notifications, submissions of brief descriptions of operations and maps of haul routes, and procedures for the notice of any changes to the haul route. The USACE will include these conditions in individual permits or authorizations on a project-by-project basis.
There currently are no mineral extraction activities or desalinization facilities in the Gulf of Maine region with which disposal activity could potentially interfere. No finfish aquaculture currently takes place in the southeastern Gulf of Maine. Finally, the IOSN is not in an area of special scientific importance. Accordingly, disposing of dredged material at the IOSN will not interfere with any of the activities described in this criterion or other legitimate uses of this part of the Gulf of Maine.
In addition, the designation of the IOSN site has been determined by the EPA to be consistent with the Maine, New Hampshire, and Massachusetts coastal zone management programs, as discussed in the CZMA section below (
EPA's analysis of existing water quality and ecological conditions at the site, which was based on available data, trend assessments, and baseline surveys, indicates that use of the IOSN will cause no unacceptable or unreasonable adverse environmental effects. Considerations related to water quality and various ecological factors (
Monitoring at disposal sites elsewhere in the Gulf of Maine over the past 35 years has shown no recruitment of nuisance (invasive, non-native) species and no such adverse effects are expected to occur at the IOSN in the future. EPA and the USACE will continue to monitor EPA-designated sites in the Gulf of Maine under their respective SMMPs, which include a “management focus” on “changes in composition and numbers of pelagic, demersal, or benthic biota at or near the disposal sites” (SMMP, Appendix G of the FEA).
In addition, source materials from projects in southern Maine, New Hampshire, and northern Massachusetts to be dredged and transported to the disposal site historically have been classified as marine silts and clays, which are similar to the sediments found at the IOSN site. As previously discussed, any material proposed for ocean disposal at the IOSN site would be subject to an evaluation of sediment quality. Therefore, it is highly unlikely that any nuisance species could be established at the proposed disposal site since habitat (
There are no natural features of historical importance within the boundaries of the IOSN, and the cultural resources that would have the greatest potential for being impacted in this area would be shipwrecks. As discussed in Section 6.7 of the FEA, side-scan sonar of the IOSN was conducted and no potential shipwrecks or other cultural feature were noted within its boundaries. The cultural resource literature search conducted for the proposed IOSN area did not identify any shipwrecks in the vicinity. While undiscovered shipwrecks could occur in the area, it is unlikely based on the results of the side-scan survey of the area. As discussed in the NHPA section below, EPA consulted with the state historic preservation offices (SHPO) for Maine and New Hampshire and they confirmed these findings. Based on this information, it is unlikely that any significant cultural resources will be affected from the designation and use of the disposal site.
In addition, Jeffery's Ledge, located to the east of the IOSN, is an important feeding ground for humpback whales and North Atlantic right whales in the summer and fall months and serves as a prime recreational whale watching area. No impacts to this area are expected based on disposal of suitable dredged material at the IOSN. However, procedures outlined in the SMMP will be followed to ensure whales are protected.
In accordance with Section 102(c)(3) of the MPRSA, EPA, in conjunction with the USACE, has developed a site management and monitoring plan for the IOSN (the “SMMP”) which includes a baseline assessment of conditions at the site, a monitoring program for the site, special management conditions necessary to protect the environment, consideration of the quantity and quality of material to be disposed at the site, consideration of the long-term plan for the site (including closure), and a schedule for review and revision of the plan. 33 U.S.C. 1412(c). EPA Region 1 is responsible for managing the IOSN pursuant to this plan and works with the USACE New England Division to do so.
The monitoring program “may include baseline or trend assessment surveys by EPA” or other entities. 40 CFR 228.9. It may also incorporate “data collected from the use of automatic sampling buoys, satellites or in situ platforms, and from experimental programs.”
In accordance with these statutory and regulatory requirements, EPA and the USACE have developed an SMMP for the IOSN that includes provisions that will be included in USACE permit and authorizations to ensure site management practices are protective of the marine environment and public health. The SMMP, available at Appendix G to the FEA, describes disposal site management practices that are generally applicable to all EPA-designated ODMDS, as well as site-specific Special Management Practices. It describes the tiered monitoring approach that is used for all ODMDS in New England that assesses whether disposal activities are occurring in compliance with permit and site restrictions; supports evaluation of short- and long-term fate of material based on MPRSA site impact evaluation criteria; and supports assessment of potential significant adverse environmental impacts from dredged material disposal at the site.
NEPA requires the public analysis of the potential environmental effects of proposed federal agency actions and reasonable alternative courses of action to ensure that these effects, and the differences in effects among the different alternatives, are understood.
EPA disposal site designation evaluations conducted under the MPRSA have been determined to be “functionally equivalent” to NEPA reviews, so that they are not subject to NEPA analysis requirements as a matter of law. Nevertheless, as a matter of policy, EPA voluntarily uses NEPA procedures when evaluating the potential designation of ocean dumping sites. 63 FR 58045, 58046 (October 29, 1998) (“EPA voluntarily will follow NEPA procedures in ocean disposal site designations under MPRSA and these procedures provide for consultation with the states” and EPA “believes that decisions on preparing EISs for proposed ocean disposal sites should be made on a case-by-case basis.”) Furthermore, EPA has clarified that “[t]he voluntary preparation of [NEPA] documents in no way legally subjects the Agency to NEPA's requirements.” Id.
Consistent with its voluntary NEPA policy, EPA has undertaken a NEPA analysis to support its decision-making process for the designation of the IOSN. In this case, EPA decided to prepare an Environmental Assessment, which is done for proposed actions when the significance of the environmental impact is not clearly established. Upon completion of the FEA, EPA also made a Finding of No Significant Impact, described below.
The FEA evaluates whether an ODMDS should be designated to serve the southern Maine, New Hampshire, and southern Maine coastal region. The FEA describes the purpose and need for any such designation, and evaluates several alternatives to this action, including the option of “no action” (
As stated in the Purpose and Need section, the purpose of this designation is to provide a long-term, ODMDS as a potential option for the future disposal of suitable dredged material. The action is necessary because periodic dredging and dredged material disposal is unavoidably necessary to maintain safe navigation and marine commerce in ports and harbors in the southern Maine, New Hampshire, and northern Massachusetts coastal region. As previously noted, dredging in southern Maine, New Hampshire, and northern Massachusetts is projected to generate approximately 1.5 mcy of dredged material over the next 20 years.
EPA evaluated potential alternatives to ocean disposal in the southern Maine, New Hampshire, and northern Massachusetts coastal region but determined that none were sufficient to meet the projected regional dredging needs. In accordance with EPA regulations, use of alternatives to ocean disposal will be required for dredged material management when they provide a practicable, environmentally preferable option for the dredged material from any particular disposal project. 40 CFR 227.16. When no such practicable alternatives exist, however, EPA's designation of the IOSN will provide an ocean disposal site as a potential management option for dredged material regulated under the MPRSA that has been tested and determined to be environmentally suitable for ocean disposal. Sediments found to be unsuitable for ocean disposal will not be authorized for placement at a disposal site designated by EPA under the MPRSA and will have to be managed in other ways.
EPA analyzed alternatives for the management of dredged material from navigation channels and harbors in the southern Maine, New Hampshire, and northern Massachusetts coastal region. This analysis evaluated several different potential alternatives, including ocean disposal sites in the ZSF (described in the Purpose and Need section), upland disposal, beneficial uses, and the no-action alternative. From this analysis, EPA determined that at least one ocean disposal site, the IOSN, was necessary to provide sufficient capacity to meet the long-term dredged material disposal needs of the region in the event that, as expected, practicable alternatives to ocean disposal are not available for all the material.
EPA's initial screening of alternatives, which involved input from other federal and state agencies, led to the determination that the ocean disposal sites were the most environmentally sound, cost-effective, and operationally feasible options for the full quantity of dredged material expected to be found suitable for ocean disposal over the 20-year planning horizon. Regardless of this conclusion, in practice, each individual dredging project will be analyzed on a case-specific basis and ocean disposal of dredged material at a designated site would only be permitted or authorized when there is a need for such disposal (
EPA released the DEA, titled “Draft Environmental Assessment and Evaluation Study for Designation of an Ocean Dredged Material Disposal Site to serve the Southern Maine, New Hampshire, and Northern Massachusetts Region,” on September 18, 2019, for a 30-day public comment period. 84 FR 49075 (Sep. 18, 2019). EPA held one public meeting during the public comment period on October 9, at 6 p.m. in Kittery, Maine, at which EPA and the USACE made a presentation on the Proposed Rule and DEA and received public comments. EPA also received subsequent written comments both in support of and expressing concerns about EPA's proposed action as described in the DEA and Proposed Rule. Many commenters also asked questions or offered suggestions. EPA made clarifying statements during the public meeting but did not substantively respond to public comments at that time.
EPA and the USACE also held a public meeting after the public comment period on December 5, 2019, in Portsmouth, New Hampshire, to present general information about dredging and dredged material disposal and answer clarifying questions, but again did not substantively respond to specific comments about the IOSN. EPA did not receive any new comments on the Proposed Rule and DEA at this meeting. Appendix I of the FEA includes the public comments EPA received on the DEA and Proposed Rule. Appendix J of the FEA provides a summary of those comments and EPA's responses to those comments. EPA also has summarized the more significant comments in Section VI of the preamble to this Final Rule.
EPA coordinated with a wide range of federal and state agencies throughout the development of the Final Rule and FEA. EPA worked closely with the USACE because of its knowledge concerning the region's dredging needs, its technical expertise in monitoring dredged material disposal sites and assessing the environmental effects of dredging and dredged material disposal, and its history in the permitting of dredging and dredged material disposal in the Gulf of Maine and elsewhere. To take advantage of additional expertise held by other entities, and to promote strong inter-agency communications, EPA also consulted and/or coordinated with the USFWS; the NOAA NMFS; the New Hampshire Department of Environmental Services (NH DES); the New Hampshire Department of Fish and Game; the Maine Department of Environmental Protection; the Maine Department of Marine Resources (ME DMR); the Maine Geological Service; the Massachusetts Division of Marine Fisheries; and the Massachusetts Office of Coastal Zone Management (MCZM).
EPA communicated with the cooperating federal and state agencies throughout the site designation process to keep them apprised of progress on the project and to solicit input. EPA conducted two IOSN interagency meetings, in May 2016 and December 2018, to solicit data sources and concerns, to review progress, and to receive feedback on the proposed action. The proposed action also was discussed with federal and state agencies at New England Regional Dredging Team meetings in February 2019, June 2019, September 2019, February 2020, and June 2020, and at Federal Mid-Level Managers meetings (EPA, USACE, NOAA, and USFWS) in June 2018, December 2018, November 2019, and May 2020. Lastly, it has consistently been an agenda item at the Maine, New Hampshire and Massachusetts state dredging team meetings since 2016. EPA provided the Proposed Rule and DEA for formal comment by cooperating agencies and EPA has since been in regular contact with representatives of these agencies throughout the development of the Final Rule and FEA.
On July 5, 2019, EPA sent letters to all federally-recognized tribes in Maine offering to consult with them on the proposed designation of the IOSN. The Houlton Band of Maliseet Indians responded with a request for government-to-government consultation, which occurred via teleconference on August 13, 2019. EPA also presented the project on an EPA Regional Tribal Operations Committee teleconference, which includes New England Tribal environmental directors, on August 14, 2019. Comments provided during the consultation and RTOC teleconference were incorporated in the Proposed Rule and DEA prior to their release for public comment on September 18, 2020.
The CZMA, 16 U.S.C. 1451,
Based on the evaluations presented in the FEA and supporting documents, and a review of the federally approved New Hampshire, Maine, and Massachusetts coastal zone programs and policies, EPA determined that designation of the IOSN for ocean dredged material disposal under the MPRSA is fully consistent or consistent to the maximum extent practicable with the enforceable policies of the coastal zone management
In EPA's view, there are several broad reasons why designation of the IOSN is consistent with the applicable, enforceable policies of the states' coastal zone programs. First, the designation is not expected to cause any significant adverse impacts to the marine environment, coastal resources, or uses of the coastal zone. Indeed, EPA expects the designation to benefit uses involving navigation and berthing of vessels by facilitating needed dredging, and to benefit the environment by concentrating any ocean disposal of dredged material at a single, environmentally appropriate site designated by EPA and subject to the previously described SMMP. Second, designation of the site does not actually authorize the disposal of any dredged material at the site, because any proposal to dispose dredged material from a particular project at a designated site will be subject to a case-specific evaluation, including CZMA review, and be allowed only if: (a) The material satisfies the requirements of the MPRSA, Ocean Dumping Regulations, and other legal requirements, such as those under the CZMA; and (b) no practicable alternative method of management with less adverse environmental impact can be identified. Third, the designated disposal site will be managed and monitored pursuant to an SMMP and if adverse impacts are identified, use of the site will be modified to reduce or eliminate those impacts. Such modification could further restrict, or even terminate, use of the site, if appropriate.
Under section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), federal agencies are required to ensure that their actions are “not likely to jeopardize the continued existence of any endangered species or result in the destruction or adverse modification of habitat of such species, which is determined to be critical.” Depending on the species involved, a federal agency is required to consult with NMFS and/or USFWS if the agency's action “may affect” an endangered or threatened species or its critical habitat. 50 CFR 402.14(a). Thus, the ESA requires consultation with NMFS and/or USFWS to address potential impacts to threatened and endangered species that may occur at the dredged material disposal site from dredged material disposal there.
To comply with the ESA, EPA coordinated and consulted with NMFS and USFWS (Appendix H of the FEA). EPA determined that the designation of the IOSN is not likely to result in adverse impacts to threatened or endangered species, species of concern, or designated critical habitat. In addition, the USACE will, as appropriate, consult with the NMFS and USFWS for individual permitted projects and federal navigation projects to further ensure that they will satisfy the ESA.
Based on its knowledge, expertise and EPA's effects analysis, NMFS concurred with EPA's determination that the site designation is not likely to adversely affect any NMFS ESA-listed species or designated critical habitat and therefore no further consultation pursuant to Section 7 of the ESA is required. USFWS also concurred with EPA's determination that the designation of IOSN is not likely to adversely affect USFWS ESA-listed species, specifically the roseate tern. Its concurrence was based on that fact that: (1) Disposal effects from turbidity, sedimentation and changes in water quality will be of short duration and limited to a negligible portion of the roseate tern's foraging habitat in the vicinity of Seavey Island; (2) disposal events would happen infrequently and the likelihood of disposal operations coinciding with roseate tern presence is discountable; and (3) EPA's designation of IOSN does not authorize any specific disposal events and such specific disposal events, and their associated effects, would be addressed through permitting by the USACE (Appendix H of FEA).
The MSFCMA, 16 U.S.C. 1801
EPA has consulted with NMFS to ensure compliance with the EFH provisions of the MSFCMA and has prepared an essential fish habitat assessment in compliance with the Act. NMFS concurred with EPA's assessment, determined that adverse effects to federally-managed species and EFH will be minimal and therefore had no conservation recommendations to provide (Appendix H of the FEA).
The NHPA, 54 U.S.C. 300101 et seq (formerly 16 U.S.C. 470 to 470a-2), requires federal agencies to take into account the effect of their actions on districts, sites, buildings, structures, or objects, included in, or eligible for inclusion in, the National Register of Historical Places. EPA submitted a consultation letter to the New Hampshire and Maine State Historic Preservation Offices (SHPO) on July 27, 2020. Both the Maine and New Hampshire SHPOs provided a letter of concurrence with EPA's determination
This action is not a significant regulatory action, as defined in the Executive Order, and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA because it would not require persons to obtain, maintain, retain, report, or publicly disclose information to or for a federal agency.
This action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (RFA). Rather, this action would provide a cost-effective, environmentally acceptable alternative for the disposal of dredged material for many small marina and boat yard operators in the region.
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 federal 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 because it will not have substantial direct effects on Indian tribes, on the relationship between the federal government and Indian Tribes, or the distribution of power and responsibilities between the federal government and Indian Tribes. As described in the Tribal Consultation subsection of the Compliance with Statutory and Regulatory Authorities section, EPA consulted with the potentially affected Indian tribes in making this determination.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the environmental health or safety risks addressed by this action do not present a disproportionate risk to children.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have a disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations.
Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to “expeditiously propose new science-based regulations, as necessary, to ensure appropriate levels of protection for the marine environment.” EPA may take action to enhance or expand protection of existing marine protected areas and to establish or recommend, as appropriate, new marine protected areas. The purpose of the Executive Order is to protect the significant natural and cultural resources within the marine environment, which means, “those areas of coastal and ocean waters, the Great Lakes and their connecting waters, and submerged lands thereunder, over which the United States exercises jurisdiction, consistent with international law.”
The EPA expects that this action will have no significant adverse impacts on the ocean and coastal waters off southern Maine, New Hampshire, and northern Massachusetts or the organisms that inhabit them.
The policies in section 2 of Executive Order 13840 (83 FR 29341, June 19, 2019) include, among others, the following: “It shall be the policy of the United States to: (a) Coordinate the activities of executive departments and agencies (agencies) regarding ocean-related matters to ensure effective management of ocean, coastal, and Great Lakes waters and to provide economic, security, and environmental benefits for present and future generations; [. . . and] (d) facilitate the economic growth of coastal communities and promote ocean industries, which employ millions of Americans, advance ocean science and technology, feed the American people, transport American goods, expand recreational opportunities, and enhance America's energy security. . . .” EPA, in developing this Final Rule, coordinated extensively with other federal and state
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 3, 1993) and is, therefore, not subject to review under Executive Order 13771. See OMB, “Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs” (M-17-21) (April 5, 2017), p. 3 (“An `E.O. 13771 Regulatory Action' is: (i) A significant regulatory action as defined in section 3(f) of E.O. 12866 that has been finalized and that imposes total costs greater than zero. . . .”).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Water pollution control.
For the reasons stated in the preamble, title 40, Chapter I, of the Code of Federal Regulations is amended as set forth below.
33 U.S.C. 1412 and 1418.
(b) * * *
(7) Isles of Shoals North Dredged Material Disposal Site (IOSN).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
Office of Government-wide Policy (OGP), General Services Administration (GSA).
Final rule.
GSA is issuing a final rule amending the Federal Management Regulation (FMR) to update the Art in Architecture program provisions. This final rule provides clarification to the policies that support the efforts to collect, manage, fund, and commission fine art in Federal buildings, and fulfills the requirements in the Executive Order issued July 3, 2020, titled “Building and Rebuilding Monuments to American Heroes.”
For clarification of content, contact Mr. Chris Coneeney, Director, Real Property Policy Division, Office of Government-wide Policy, at 202-208-2956 or
GSA is issuing a final rule to amend part 102-77 pursuant to Executive Order (E.O.) 13934: “Building and Rebuilding Monuments to American Heroes” (available at
Subsection 4(c) of the order also directed GSA, to the extent appropriate and consistent with applicable law, to prioritize projects that will result in the installation of a publicly accessible statue of historically significant Americans in communities where a statue depicting a historically significant American was removed or destroyed in 2020.
Furthermore, subsection 4(e) of the order requires that, “When a statue or work of art commissioned pursuant to this section is meant to depict a historically significant American, the statue or work of art shall be a lifelike or realistic representation of that person, not an abstract or modernist representation.”
This final rule corrects the title of part 102-77 to “Art in Architecture”. GSA has not used the hyphens for more than 15 years, including in publications,
Section 102-77.21 is added to meet the requirement in subsection 4(d) of E.O. 13934 that GSA revise its Art in Architecture program regulations “to prioritize the commission of works of art that portray historically significant Americans or events of American historical significance or illustrate the ideals upon which our Nation was founded. Priority should be given to public-facing monuments to former Presidents of the United States and to individuals and events relating to the discovery of America, the founding of the United States, and the abolition of slavery. Such works of art should be designed to be appreciated by the general public and by those who use and interact with Federal buildings.”
Section 102-77.21 also meets the requirement in subsection 4(b) of E.O. 13934 that GSA, to the extent appropriate and consistent with applicable law, shall give priority to the commissioning of statues or monuments involving the commissioning of publicly accessible statues of the Founding Fathers, former Presidents of the United States, leading abolitionists, and individuals involved in the discovery of America.
Section 102-77.21 also incorporates the requirement of subsection 4(c) of E.O. 13934 that GSA “to the extent appropriate and consistent with applicable law, prioritize projects that will result in the installation of a statue” of a historically significant American “in a community where a statue depicting a historically significant American was removed or destroyed” in 2020.
Section 102-77.22 is added to meet the requirement in subsection 4(e) of E.O. 13934 that, “When a statue or work of art commissioned pursuant to this section is meant to depict a historically significant American, the statue or work of art shall be a lifelike or realistic representation of that person, not an abstract or modernist representation.”
Section 102-77.23 is added to incorporate the E.O. 13934 definition of a historically significant American.
E.O.s 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under subsection 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
This final rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this rule is not a significant regulatory action under E.O. 12866.
This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601
This final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Federal buildings and facilities; Government property management; Rates and fares.
For the reasons set forth in the Preamble, GSA revises 41 CFR part 102-77 to read as follows:
40 U.S.C. 121 and 3306; E.O. 13934.
The real property policies contained in this part apply to Federal agencies, including GSA's Public Buildings Service, operating under, or subject to, the authorities of the Administrator of General Services.
Federal agencies must incorporate fine arts as an integral part of the total building concept when designing new Federal buildings and when making substantial repairs and alterations to existing Federal buildings, as appropriate. The selected fine arts, including painting, sculpture and artistic work in other media, must reflect the national cultural heritage and emphasize the work of living American artists.
To the extent not prohibited by law, Federal agencies must fund the Art in Architecture efforts by allocating a portion of the estimated cost of constructing or purchasing new Federal buildings or of completing major repairs and alterations of existing buildings. Funding for qualifying projects, including new construction, building purchases, other building acquisitions, or prospectus-level repair and alteration projects, must be in a range determined by the Administrator of General Services.
To the maximum extent practicable, Federal agencies should seek the support and involvement of local citizens in selecting appropriate artwork. Subject to sections 102-77.21 through 102-77.23 of this part, Federal agencies should collaborate with the artist and community to produce works of art that reflect the cultural, intellectual and historic interests and values of a community. In addition, and subject to sections 102-77.21 through 102-77.23, Federal agencies should work collaboratively with the architect of the building and art professionals
(a) When commissioning works of art, priority must be given to those works that portray historically significant Americans or events of American historical significance, or illustrate the ideals upon which our Nation was founded. Particular priority should be given to public-facing statues of or monuments to former Presidents of the United States and to individuals and events relating to the discovery of America, the founding of the United States and the abolition of slavery or others who contributed positively to America's history.
(b) To the extent appropriate and consistent with applicable law, GSA shall prioritize projects that will result in the installation of a statue in a community where a statue depicting a historically significant American was removed or destroyed in 2020. All works of art commissioned under the Art in Architecture program should be designed to be appreciated by the general public and by those who use and interact with Federal buildings.
Yes. When a commissioned statue or work of art is meant to depict a historically significant American, the statue or work of art must be a lifelike or realistic representation of that person, not an abstract or modernist representation.
As used in this part, the term “historically significant American” means an individual who was, or became, an American citizen and was a public figure who made substantive contributions to America's public life or otherwise had a substantive effect on America's history. The phrase also includes public figures such as Christopher Columbus, Junipero Serra, and the Marquis de La Fayette, who lived prior to or during the American Revolution and were not American citizens, but who made substantive historical contributions to the discovery, development, or independence of the future United States.
Yes. Federal agencies should provide Art in Architecture that receives appropriate national and local visibility to facilitate participation by a large and diverse group of artists representing a wide variety of types of artwork.
Office of Government-wide Policy (OGP), General Services Administration (GSA).
Availability of GSA Bulletin FMR B-52, Clarifying the Process For Meeting Federal Space Needs.
This Federal Management Regulation (FMR) bulletin clarifies certain terms and concepts, Location of Space, to reflect current laws, executive orders and Office of Management and Budget bulletins and management procedure memoranda, thereby bringing federal location policy into compliance with those governing authorities, until such time as a new regulation is issued.
For clarification of content, contact Mr. Chris Coneeney, Director, Real Property Policy Division, GSA, at 202-208-2956, or email
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule, accountability measure.
Through this temporary rule, NMFS implements accountability measures (AMs) for the red snapper recreational sector private angling component in the Gulf of Mexico (Gulf) off Louisiana for the 2020 fishing year. Based on information provided by the Louisiana Department of Wildlife and Fisheries (LDWF), NMFS has determined that the 2019 Louisiana regional management area private angling component annual catch limit (ACL) for Gulf red snapper was exceeded. Therefore, NMFS reduces the 2020 private angling component ACL of Gulf red snapper for the Louisiana regional management area. This reduction will remain in effect through the remainder of the current fishing year on December 31, 2020, and is necessary to protect the Gulf red snapper resource.
This temporary rule is effective from 12:01 a.m., local time, on September 25, 2020, until 12:01 a.m., local time, on January 1, 2021.
Kelli O'Donnell, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The Gulf reef fish fishery, which includes red snapper, is managed under the Fishery Management Plan for the Reef Fish
In 2015, Amendment 40 to the FMP established two components within the recreational sector fishing for red snapper: The private angling component, and the Federal charter vessel and headboat (for-hire) component (80 FR 22422, April 22, 2015). In 2020, NMFS implemented Amendments 50 A-F to the FMP, which delegated authority to the Gulf states (Louisiana, Mississippi, Alabama, Florida, and Texas) to establish specific management measures for the harvest of red snapper in Federal waters of the Gulf by the private angling component of the recreational sector (85 FR 6819, February 6, 2020). These amendments allocate a portion of the private angling ACL to each state, and each state is required to constrain landings to its allocation as part of state management.
As described at 50 CFR 622.39(a)(2)(i), the Gulf red snapper recreational sector quota (ACL) is 7.399 million lb (3.356 million kg) and the recreational private angling component quota (ACL) is 4.269 million lb (1.936 million kg). Also, as described at 50 CFR 622.23(a)(1)(ii)(C), the Louisiana regional management area private angling component ACL is 816,233 lb (370,237 kg). Regulations at 50 CFR 622.23(b) require that if a state's red snapper private angling component landings exceed the applicable state's component ACL, then in the following fishing year, that state's private angling ACL will be reduced by the amount of that ACL overage in the prior fishing year.
For the 2019 fishing year, the Louisiana recreational red snapper private component (private vessel and state charter vessels) was managed under an exempted fishing permit with a state ACL of 816,439 lb (370,331 kg). Amendment 50F provided that any overage of the 2019 Louisiana ACL would be applied to Louisiana's portion of the 2020 private angling ACL. NMFS has determined that landings of red snapper off Louisiana for the private angling component, which includes landings for state charter vessels, in 2019 were 848,340 lb (384,801 kg); which is 31,901 lb (14,470 kg) greater than 2019 Louisiana allocation of the private angling component ACL. Accordingly, for the 2020 fishing year, this temporary rule reduces the Louisiana regional management area private angling component ACL for Gulf red snapper by the ACL overage amount of 31,901 lb (14,470 kg) and resulting in a revised private angling ACL for Louisiana of 784,332 lb (355,767 kg).
On August 24, 2020, NMFS published a notice in the
The LDWF is responsible for ensuring that 2020 private angling component landings in the Louisiana regional management area do not exceed the adjusted 2020 Louisiana ACL. NMFS understands that after the LDWF identified that an ACL overage had occurred in 2019, it adjusted the 2020 Louisiana red snapper private angling season to account for the reduction in the Louisiana ACL as required by the regulations at 50 CFR 622.23(b) and implemented through this temporary rule.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required under 50 CFR 622.23(b) which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action is based on the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to implement this action to reduce the private angling component ACL for the Louisiana regional management area constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the post-season ACL adjustment authority has already been subject to notice and comment, and all that remains is to notify the public of the ACL overage adjustment. Such procedures are contrary to the public interest because a failure to implement the ACL overage adjustment immediately may result in continued confusion among the public and Gulf state officials about what ACL is in effect for Louisiana for the 2020 fishing year.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of the action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; determination of catastrophic conditions.
In accordance with the regulations implementing the individual fishing quota (IFQ) and Federal dealer reporting programs specific to the
The RA is authorizing Federal dealers and IFQ dealers in the affected area to use revised reporting methods from September 23, 2020, through October 31, 2020.
Britni LaVine (727) 551-5766.
The reef fish fishery of the Gulf is managed under the Fishery Management Plan (FMP) for Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP), prepared by the Gulf of Mexico Fishery Management Council (Gulf Council). The CMP fishery is managed under the FMP for CMP Resources in the Gulf of Mexico and Atlantic Region, prepared by the Gulf Council and South Atlantic Fishery Management Council. Both FMPs are implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The Generic Dealer Amendment established Federal dealer reporting requirements for federally permitted dealers in the Gulf and South Atlantic (79 FR 19490; April 9, 2014). Amendment 26 to the Reef Fish FMP established an IFQ program for the commercial red snapper component of the Gulf reef fish fishery (71 FR 67447; November 22, 2006). Amendment 29 to the Reef Fish FMP established an IFQ program for the commercial grouper and tilefish components of the Gulf reef fish fishery (74 FR 44732; August 31, 2009). Regulations implementing these IFQ programs (50 CFR 622.21 and 622.22) and the dealer reporting requirements (50 CFR 622.5(c)) require that Federal dealers and IFQ participants have access to a computer and internet and that they conduct administrative functions associated with dealer reporting and the IFQ program,
Hurricane Sally made landfall in the U.S. near Gulf Shores, Alabama, in the Gulf as a Category 2 hurricane on September 16, 2020. Strong winds and flooding from this hurricane impacted communities throughout coastal Alabama and parts of the Florida Panhandle, resulting in power outages and damage to homes, businesses, and infrastructure. As a result, the RA has determined that catastrophic conditions exist in the Gulf for the Alabama counties of Mobile and Baldwin; and the Florida counties of Escambia, Santa Rosa, Okaloosa, Walton, Bay, Gulf, Franklin, Wakulla, Leon, Jefferson, and Taylor.
Through this temporary rule, the RA is authorizing Federal dealers in these affected areas to delay reporting of trip tickets to NOAA Fisheries and IFQ dealers in this affected area to use paper-based forms, from September 23, 2020, through October 31, 2020. NMFS will provide additional notification to affected dealers via NOAA Weather Radio, Fishery Bulletins, and other appropriate means. NOAA Fisheries will continue to monitor and re-evaluate the areas and duration of the catastrophic conditions, as necessary.
Dealers may delay electronic reporting of trip tickets to NMFS during catastrophic conditions. Dealers are to report all landings to NMFS as soon as possible. Assistance for Federal dealers in the affected area is available from the Fisheries Monitoring Branch at 1-305-361-4581. NMFS previously provided IFQ dealers with the necessary paper forms and instructions for submission in the event of catastrophic conditions. Paper forms are also available from the RA upon request. The electronic systems for submitting information to NMFS will continue to be available to all dealers, and dealers in the affected area are encouraged to continue using these systems, if accessible.
The administrative program functions available to IFQ dealers in the area affected by catastrophic conditions will be limited under the paper-based system. There will be no mechanism for transfers of IFQ shares or allocation under the paper-based system in effect during catastrophic conditions. Assistance in complying with the requirements of the paper-based system will be available via the Catch Share Support line, 1-866-425-7627 Monday through Friday, between 8 a.m. and 4:30 p.m., Eastern Time.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is consistent with the regulations in 50 CFR 622.5(c)(iii), 622.21(a)(3)(iii), and 622.22(a)(3)(iii) which were issued pursuant to section 304(b) of the Magnuson-Stevens Act, and are exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because this temporary rule is issued without opportunity for prior notice and comment.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule. Such procedures are unnecessary because the final rules implementing the Gulf IFQ programs and the Gulf and Atlantic Federal dealer reporting have already been subject to notice and public comment. These rules authorize the RA to determine when catastrophic conditions exist, and which participants or geographic areas are deemed affected by catastrophic conditions. The final rules also authorize the RA to provide timely notice to affected participants via publication of notification in the
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
Federal Deposit Insurance Corporation (FDIC).
Proposed rule.
In this notice of proposed rulemaking, the Federal Deposit Insurance Corporation (FDIC) proposes to rescind and remove from the Code of Federal Regulations rules entitled “Nondiscrimination Requirements” (part 390, subpart G), and to amend FDIC regulation part 338 to make it applicable to State savings associations. Part 390, subpart G was included in the regulations that were transferred to the FDIC from the Office of Thrift Supervision (OTS) on July 21, 2011, in connection with the implementation of applicable provisions of Title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). The FDIC's part 338 is entitled “Fair Housing” and applies to insured State nonmember banks. Several provisions for State savings associations in part 390, subpart G have substantively similar provisions in part 338. The remaining provisions in part 390, subpart G without a direct counterpart are largely duplicative of federal laws (Equal Credit Opportunity Act (ECOA), Fair Housing Act (FHA), Equal Employment Opportunity Act (EEOA) and other laws concerning nondiscrimination in lending, employment, and services) and implementing regulations. After careful review of part 390, subpart G, the FDIC proposes to rescind and remove in its entirety part 390, subpart G to streamline the FDIC's rules and eliminate unnecessary, inconsistent, and duplicative regulations and to modify the scope of part 338 to include State savings associations to reflect the scope of the FDIC's current supervisory responsibilities as the appropriate Federal banking agency for those institutions. The FDIC also proposes to define “FDIC-supervised institution” and “State savings association.” If the proposal is adopted in final form, insured State nonmember banks and State savings associations will be subject to the same anti-discrimination requirements. Upon removal of part 390, subpart G, nondiscrimination regulations related to lending applicable for all insured depository institutions for which the FDIC has been designated the appropriate Federal banking agency will be found at part 338 and related nondiscrimination federal regulations listed above, as applicable.
Comments must be received on or before October 26, 2020.
You may submit comments, identified by RIN 3064-AF35, by any of the following methods:
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Navid Choudhury, Counsel, Legal Division, (202) 898-6526,
Title III of the Dodd-Frank Act
Section 316(c) of the Dodd-Frank Act
Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act
As noted, on June 14, 2011, operating pursuant to this authority, the FDIC's Board of Directors reissued and redesignated certain transferred OTS regulations. These transferred OTS regulations were published as new FDIC regulations in the
One of the OTS rules transferred to the FDIC requires State savings associations to not discriminate with respect to lending, employment, and other services provided. The OTS rule, formerly found at 12 CFR part 528 (part 528), was transferred to the FDIC with only technical changes and is now found in the FDIC's rules at part 390, subpart G, entitled “Nondiscrimination Requirements.” Although few provisions of part 390, subpart G have a direct counterpart within the FDIC's regulations, the provisions are largely duplicative of regulations implementing federal laws (ECOA, FHA, EEOA, and other laws concerning nondiscrimination in lending, employment, and services) implemented by other agencies. After careful review of part 390, subpart G, the FDIC proposes to rescind and remove part 390, subpart G, because, as discussed below, it is duplicative, unnecessary, and burdensome to require State savings associations to comply with additional requirements to which insured State nonmember banks are not subject. The FDIC also proposes to makes technical conforming edits to part 338 to encompass State savings associations and update the regulation.
The Fair Housing Act of 1968 prohibits discrimination concerning the sale, rental and financing of housing based on race, religion, national origin or sex. Section 808 of the FHA directed all executive departments and agencies to administer their programs relating to housing and urban development (including any Federal agency having regulatory or supervisory authority over financial institutions,
Following this initial issuance of part 528 in 1972, in 1978 the FHLBB finalized major amendments to the regulation to update and strengthen its nondiscrimination in lending regulations to reflect provisions of the FHA, ECOA, and the Community Reinvestment Act (CRA) and to “strengthen the Bank Board's ability to enforce member institutions' compliance with these and other Federal laws which prohibit discriminatory lending practices.”
In 1993, following the President's order for federal agencies to review all Federal regulations and policies to eliminate over-burdensome regulations that discourage economic growth,
Part 528 was among the regulations that were transferred to the FDIC from the OTS on July 21, 2011, pursuant to
Specifically, the FDIC's fair housing recordkeeping provisions (see §§ 338.7 and 338.8) are a counterpart to the former OTS requirement to file a HMDA LAR (§ 390.147). The FDIC rules require supervised institutions to request and retain any monitoring information required by HMDA and its implementing Regulation C when receiving an application for credit for the purchase or refinancing of a dwelling to be occupied as a principal residence. Prior to the passage of the final HMDA rule in 2015 by the Bureau of Consumer Financial Protection (CFPB),
In addition, FDIC requirements related to nondiscrimination in advertising and displaying a fair housing poster (§§ 338.3 and 338.4) are counterparts to substantially similar former OTS requirements (§§ 390.145 and 390.146). However, the FDIC's part 338 and the former OTS' part 390, subpart G differ with respect to where they require fair housing posters to be displayed and the presence of nonbinding recommendations about displaying Spanish-language posters in certain offices. With respect to poster location, FDIC's § 338.4 requires posting either the FDIC's Equal Housing Lender poster or the U.S. Department of Housing and Urban Development's Equal Housing Opportunity poster at “a central location within the bank where deposits are received or where such loans are made in a manner clearly visible to the general public entering the area,” whereas § 390.146 requires posting at each of a State savings association's offices. The FDIC has not identified a reason for State savings associations to post an Equal Housing Opportunity notice at locations where insured State nonmember banks are not required to post. Therefore, the FDIC proposes to rescind and remove § 390.146. As discussed below, the FDIC also proposes to amend § 338.4 to apply to State savings associations, in addition to insured State nonmember banks and to update the address provided for the FDIC's Consumer Response Center (CRC).
With respect to the presence of non-binding guidance, § 390.146 recommends, but does not require, that State savings associations “post a Spanish language version of the [Equal Housing Lender] poster in offices serving areas with a substantial Spanish-speaking population.” The FDIC's part 338 does not contain guidance about posting supplemental foreign-language posters. The FDIC does not propose to add this nonbinding recommendation to the existing Equal Housing Lending poster requirements in § 338.4.
Although several former OTS nondiscrimination rules codified in part 390, subpart G do not have direct FDIC counterparts, they are substantially duplicative of nondiscrimination provisions found in other federal laws (
In addition, to the extent that any such provision of part 390, subpart G can be interpreted as applying in a case where ECOA, FHA, EEOA and other laws and regulations concerning nondiscrimination in lending, employment or services would not apply, the FDIC's authority to amend these former OTS provisions is not certain.
The FDIC has determined that several provisions of part 390 subpart G have no counterparts in either the FDIC's regulations or other nondiscrimination federal regulations. For these provisions, the FDIC has not identified a reasonable basis for retaining these requirements for State savings associations, given that they do not apply to insured State nonmember banks, and therefore proposes to rescind the following provisions, which—
1. Require each State savings association to have clearly written, nondiscriminatory loan underwriting standards, available to the public upon request, at each of its offices. Require each association to review its standards, and business practices that implement them, at least annually to ensure equal opportunity in lending.
2. Require each State savings association notify each “inquirer” of a right to obtain a copy of its loan underwriting standards.
3. Provide supplementary guidelines to aid savings associations in developing and implementing nondiscriminatory lending policies and provide that each State savings association “should reexamine its underwriting standards at least annually in order to ensure equal opportunity.”
4. Treat the age or location of a dwelling as a per se prohibited basis for discrimination.
5. Provide certain guidelines relating to nondiscrimination in marketing practices.
In summary, after careful review of part 390, subpart G (formerly part 528), and the former OTS's stated rationale for the rule, the FDIC, as the appropriate Federal banking agency for State savings associations, proposes to rescind and remove part 390, subpart G in its entirety. Rescinding part 390, subpart G also will serve to streamline the FDIC's rules and eliminate unnecessary, inconsistent, and duplicative regulations. If the proposal is adopted in final form, all insured State nonmember banks and State savings associations will be subject to the same anti-discrimination requirements.
Regarding the functions of the former OTS that were transferred to the FDIC, section 316(b)(3) of the Dodd-Frank Act
Section 390.140 defines the terms “application,” “dwelling,” and “State savings association.” In light of the proposal to rescind subpart G of part 390 in its entirety, these definitions need not be retained. Therefore, the FDIC proposes to rescind § 390.140.
Section 390.141 cross-references a policy statement transferred from OTS regulations to § 390.151, HUD's fair housing regulations at 24 CFR part 100
Section 390.142 prohibits discrimination on a prohibited basis by State savings associations in lending and other services. The prohibited bases specified are location and age of a dwelling and race, color, religion, sex, handicap, familial status, marital status, or age of an applicant or a joint applicant, among other parties.
There is significant overlap between the requirements of § 390.142 and of the requirements of ECOA and Regulation B and the FHA and HUD's FHA regulations (the general federal fair lending laws). For example, under ECOA, it is “unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction” on a prohibited basis.
However, there are differences between § 390.142 and the general federal fair lending laws. For example, under § 390.142(a), prohibited bases for discrimination explicitly include the location and age of a dwelling, whereas prohibited bases for discrimination under ECOA, FHA, and their implementing regulations do not include such factors.
As discussed earlier, to the extent that a provision of § 390.142 can be interpreted as applying in a case where ECOA, FHA, EEOA and other laws and regulations concerning nondiscrimination in lending, employment or services would not apply, the FDIC's authority to amend these former OTS provisions is not certain. Because the general federal fair lending laws address substantially the same acts and practices as are addressed by § 390.142(a) and it is uncertain whether the FDIC could amend § 390.142(a) in connection with acts or practices not explicitly prohibited by the general federal fair lending laws, FDIC proposes to rescind § 390.142(a).
Similarly, § 390.142(b) addresses acts and practices addressed by the general federal fair lending laws but differs in ways that make FDIC's authority to amend § 390.142(b) uncertain. As mentioned, § 390.142(b) provides that “[a] State savings association shall consider without prejudice the combined income of joint applicants for a loan or other service.” By contrast, Regulation B's provisions establishing standards for consideration of an applicant's income in § 1002.6(b)(5) does not require creditors to consider the combined income of joint applicants, and Comment 6(b)(5)-3.ii states that creditors need not consider income at all. In contrast with § 390.142(b), 12 CFR 1002.6(b)(5) in Regulation B prohibits treating joint applicants differently based on the existence, absence or likelihood of a marital relationship. The FDIC believes that the prohibition in § 1002.6(b)(5) addresses substantially the same issue that § 390.142(b) addresses and the latter is duplicative and arguably less clear. Therefore, the FDIC proposes to rescind § 390.142(b).
As mentioned, § 390.142(c) prohibits a State savings association from discriminating against an applicant for a loan or other service on any prohibited basis, as defined in Regulation B or HUD's FHA regulation in 24 CFR part 100. The FDIC believes that § 390.142(c) is duplicative of the general federal fair lending laws and therefore proposes to rescind the provision.
Section 390.143(a) prohibits using or relying upon a dwelling appraisal that a State savings association knows or reasonably should know is “discriminatory on the basis of the age or location of the dwelling” or is “discriminatory per se or in effect” under the FHA or ECOA. The general federal fair lending laws prohibit appraisal-related discrimination on a prohibited basis.
As stated, § 390.143(a) also prohibits using or relying upon a dwelling appraisal that is discriminatory per se or in effect under the FHA or ECOA. The FDIC believes that prohibition is duplicative of prohibitions under the general fair lending laws and therefore is unnecessary. For these reasons, the FDIC proposes to rescind § 390.143(a).
Section 390.143(b) requires each State savings association to have clearly written, nondiscriminatory loan underwriting standards available to the public upon request at each of its offices. In addition, § 390.143(b) requires each association to review its standards, and business practices that implement them, at least annually to ensure equal opportunity in lending. No such requirements apply to insured State nonmember banks. The provision is not required by ECOA or the FHA, and the authority of the FDIC to amend former OTS requirements that were adopted pursuant to HOLA authority is unclear. For these reasons, the FDIC proposes to rescind § 390.143(b).
Section 390.144(a) prohibits discouraging or refusing to allow, receive, or consider any applicant, request or inquiry about a loan or other service on a prohibited basis. Section 390.144(b) requires a State savings association to “inform each inquirer of his or her right to file a written loan application, and to receive a copy of the association's underwriting standards.”
Section 390.144(a) is substantially similar to, and duplicative of, prohibitions under the general federal fair lending laws.
As discussed earlier, the FDIC proposes to rescind the requirement in § 390.143(b) for a State savings association to provide a copy of its underwriting standards upon request. Further, the FDIC believes that the requirement to post an Equal Housing Lender poster, discussed below in connection with 12 CFR 338.4, serves a substantially similar purpose as the requirement to “inform each inquirer of his or her right to file a written loan application” in 12 CFR 390.144(b). For the foregoing reasons, the FDIC proposes to rescind § 390.144(b).
Section 390.145 prohibits directly or indirectly engaging in any form of advertising that implies or suggests a policy of discrimination or exclusion in violation of ECOA, the FHA, or subpart G of part 390. The provision also provides that advertisements for any loan for purchasing, constructing, improving, repairing, or maintaining a dwelling or any loan secured by a dwelling must include the Equal Housing Lender symbol.
The requirement in § 390.145 to include the Equal Housing Lender
Section 390.146(a) requires each State savings association to post and maintain at least one Equal Housing Lender poster prominently in the lobby of each of its offices, requires the use of specified text, establishes a minimum poster size, and requires that the text be legible. Also, § 390.146(a) states that “[i]t is recommended that savings associations post a Spanish language version of the poster in offices serving areas with a substantial Spanish-speaking population.” Section 390.146(b) sets forth the required poster text and the Equal Housing Lender logotype.
The requirements of § 390.146 are substantially similar to the requirements applicable to insured State nonmember banks under § 338.4. As discussed later, although the FDIC's Equal Housing Lender poster provisions do not include the Spanish-language recommendation included in § 390.146, the FDIC makes a Spanish-language poster available to the institutions it supervises. For these reasons, the FDIC proposes to rescind § 390.146 and, as discussed below, amend § 338.4 to also apply to State savings associations.
Section 390.147 requires that State savings associations and other lenders required to file HMDA LARs with the FDIC to enter the reason for denial with respect to all loan denials. As discussed earlier in Section I,
Section 390.148 prohibits discrimination on a prohibited basis by State savings associations in employment. The specified prohibited bases are race, color, religion, sex, and national origin. Section 390.148(a) prohibits discrimination in the hiring, firing, promoting, compensating, or training of an individual or similar discriminatory treatment during employment or with regard to training. Section 390.148(b) prohibits segregation or classification of employees in a way that would adversely affect their status as an employee on a prohibited basis. Section 390.148(c) prohibits State savings associations from retaliating against an employee for opposing an unlawful employment practice. Section 390.148(d) prohibits discrimination by State savings associations in advertisements for employment. Section 390.148(e) states the regulation does not apply in any case in which certain exemptions and exceptions under the EEOA apply. Section 390.148(f) states that any violation of specified laws or regulations, such as the EEOA and the Age Discrimination in Employment Act, shall be deemed a violation of this regulation.
There is significant overlap between the requirements of § 390.148(a) through (d) and the EEOA. Under the EEOA, it is unlawful for an employer to discriminate in hiring, firing, compensating or providing training because of the same prohibited bases as under § 390.148(a).
Section 390.148(e) cross-references the EEOA. The cross-reference to the statute would be obsolete if § 390.148 is rescinded as proposed. Section 390.148(f) cross-references multiple employment laws, including the EEOA. The FDIC believes such cross-references are unnecessary and therefore proposes to rescind §§ 390.148(e) and (f).
Section 390.149 provides that complaints about discrimination in lending by a State savings association “shall be referred” to the Secretary of HUD for processing under the FHA and the Director of the Division of Depositor and Consumer Protection at the FDIC for processing under FDIC regulations. In addition, § 390.149 provides that complaints about discrimination in employment by a State savings association “shall be referred” to the EEOC (with a copy to the FDIC) if they relate to employment. Similar, although more detailed, discrimination complaint processing provisions can be found in other federal laws, and their implementing regulations.
However, there appears to be no equivalent requirement to the provisions in § 390.149 regarding referring complaints to EEOC regarding employment discrimination by FDIC-supervised institutions. The FDIC believes it would be burdensome and unnecessary to require State savings associations to comply with this additional requirement to which insured State nonmember banks are not subject. For the foregoing reasons, the FDIC proposes to rescind § 390.149 in its entirety.
Section 390.150 “provides supplementary guidelines to aid savings associations in developing and implementing nondiscriminatory lending policies.” In general, § 390.150 states actions that State savings associations “should” take or actions that “can” or “may” constitute illegal discrimination.
The FDIC's part 338, Fair Housing, applies to insured State nonmember banks and addresses discrimination in advertising and recordkeeping requirements under ECOA and HMDA. The FDIC proposes to make technical amendments to part 338 to reflect the applicability of its provisions to State savings associations, as discussed below.
Section 338.1 states that its purposes are to prohibit insured State nonmember banks from engaging in discriminatory advertising with regard to residential real estate-related transactions and require them to publicly display either the Equal Housing Lender poster set forth in § 338.4(b) of the FDIC's regulations or the Equal Housing Opportunity poster prescribed in 24 CFR part 110 in HUD's regulations. To reflect that § 338.1 applies to all institutions for which the FDIC is the appropriate Federal banking agency, the FDIC proposes to amend § 338.1 to change references to “insured State nonmember banks” to refer to “FDIC-supervised institutions.”
Section 338.2 defines terms used in subpart A of part 338, including the term “bank” defined in § 338.2(a) to mean “an insured state nonmember bank as defined in section 3 of the Federal Deposit Insurance Act.” The FDIC proposes to add to § 338.2(c) a new defined term “FDIC-supervised institution” meaning a bank or a State savings association and to add § 338.2(f), a new defined term “State savings association” having “the same meaning as in section (3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3)”. Also, the FDIC proposes to make conforming technical edits to other subsections in § 338.2 to reflect the re-ordering of definitions.
Section 338.3 provides certain requirements with respect to dwelling-related advertisements to reflect the bank's nondiscrimination lending practice and prohibits such advertisements from including “words, symbols, models, or other forms of communication which express, imply, or suggest a discriminatory preference or policy of exclusion in violation of the provisions of the FHA or ECOA. To reflect that § 338.3 applies to all institutions for which the FDIC is the appropriate Federal banking agency, the FDIC proposes to amend § 338.3 to change references to “bank” to refer to “FDIC-supervised institution.”
Section 338.4(a) requires insured State nonmember banks engaged in extending dwelling-related loans to conspicuously display either an Equal Housing Lender poster or an Equal Housing Opportunity poster “in a central location within the bank where deposits are received or where such loans are made in a manner clearly visible to the general public entering the area, where the poster is displayed.” This requirement is substantially similar to the requirement in § 390.146 for State savings associations to display an Equal Housing Lender poster, which the FDIC herein proposes to rescind and remove. To reflect that § 338.4(a) applies to all institutions for which the FDIC is the appropriate Federal banking agency, the FDIC proposes to amend § 338.4(a) to change references to “insured State nonmember banks” to refer to “FDIC-supervised institutions.”
Section 338.4(b) sets forth the required text of the FDIC's Equal Housing Lender poster, including the former mailing address of the FDIC's CRC, formatted as a Portable Document Format (PDF) image. Since the CRC mailing address changed in 2011, the FDIC has made available to FDIC-supervised institutions an Equal Housing Lender poster with the correct address of the CRC, both in English and in Spanish.
To assist FDIC-supervised institutions, the FDIC expects to continue to provide them with access to a poster stating the required text, including the accurate CRC mailing address. If this rule is finalized as proposed, no change to posters would be required of FDIC-supervised institutions that use an Equal Housing Lender poster obtained from the FDIC since the CRC mailing address was updated in 2011. The FDIC believes that few insured State nonmember banks make their own Equal Housing Lender poster based on the text of § 338.4(b). Nonetheless, to facilitate the transition to the updated poster, the FDIC proposes to provide a transition period of one year for FDIC-supervised institutions to change their posters to reflect the current CRC mailing address, if needed. That is, the effective date of § 338.4(b), as amended, would be the date that is one year after a final rule amending the provision is published in the
Section 338.5 states that its purpose is to notify insured State nonmember banks of their duty both to collect and retain certain information about a home loan applicant's personal characteristics in accordance with Regulation B and to maintain, update and report a register of home loan applications in accordance with Regulation C. To reflect that § 338.5 applies to all institutions for which the FDIC is the appropriate Federal banking agency, the FDIC proposes to amend § 338.5 to change references to “insured State nonmember banks” to refer to “FDIC-supervised institutions.” The FDIC also proposes to make technical amendments to § 338.5 to reflect that Regulation B and Regulation C have been re-designated as 12 CFR part 1002 and 12 CFR part 1003, respectively, and are implemented by the CFPB.
Section 338.6 defines terms used in subpart B of part 338, including the term “bank” defined in § 338.6(a) to mean “an insured State nonmember bank as defined in section 3 of the Federal Deposit Insurance Act.” The FDIC proposes to add as § 338.2(c) a new defined term “FDIC-supervised institution” meaning a bank or a State savings association and to add as § 338.6(d) a new defined term “State savings association” having “the same meaning as in section (3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).”
Section 338.7 requires banks that receive an application for credit primarily for the purchase or refinancing of a dwelling occupied or to be occupied by the applicant as a principal residence where the extension of credit will be secured by the dwelling to request and retain the monitoring information required by Regulation B.
Section 338.8 requires banks and other lenders required to file a HMDA LAR with the FDIC to maintain, update and report such LAR in accordance with Regulation C. To reflect that § 338.8 applies to all institutions for which the FDIC is the appropriate Federal banking agency, the FDIC proposes to amend § 338.8 to change references to “bank” to refer to “FDIC-supervised institution.” Additionally, to reflect amendments made to Regulation C regarding the responsibilities of a financial institution with respect to HMDA LAR data, the FDIC proposes to amend § 338.8 require banks and other lenders required to file a HMDA LAR with the FDIC to collect, record, and report such LAR in accordance with Regulation C. The FDIC also proposes to make technical amendments to § 338.8 to reflect that Regulation C has been re-designated as 12 CFR part 1003 and is implemented by the CFPB.
Section 338.9 establishes requirements that apply if a bank refers applicants to a “controlled entity,” as defined in § 338.6, and purchases any home purchase loans or home improvement loans (as defined in Regulation C) that are originated by the controlled entity, as a condition to transacting any business with the controlled entity.
Because this notice of proposed rulemaking is intended to rescind and remove former OTS regulations that are duplicative of regulations under ECOA, FHA, or EEOA, the FDIC does not propose in this rulemaking to impose substantive requirements regarding the business transactions between a State savings association and any entity it controls. That is, the FDIC does not propose to replace the term “bank” with the term “FDIC-supervised institution” in § 338.9. However, the FDIC proposes to make technical amendments to § 338.9 to reflect that Regulation C has been re-designated as 12 CFR part 1003 and is implemented by the CFPB.
As of March 31, 2020, the FDIC-supervised 3,309 depository institutions,
If the proposed rule were adopted by the FDIC, §§ 390.140 and 390.141 would be rescinded. As discussed previously, these sections include definitions and cross-references to other parts of section 390, so their rescission has no independent significance for institutions or applicants, but rather is
As previously discussed, if the proposed rule were adopted by the FDIC, § 390.142 would be rescinded. This section has substantial overlap with the requirements of ECOA and Regulation B and the FHA and HUD's FHA regulations. Additionally, although some aspects of § 390.142 have no counterpart in existing regulations for insured State nonmember banks, as indicated earlier, the FDIC's authority to amend those elements is uncertain. Therefore, the FDIC believes that these aspects of the proposed rule are unlikely to significantly affect FDIC-supervised institutions or applicants.
If the proposed rule were adopted, the FDIC would rescind § 390.143. As discussed previously, aspects of § 390.143 are either duplicative of prohibitions under the general fair lending laws or the authority of the FDIC to amend them is uncertain. With regard to § 390.143(b), the proposed rule would reduce compliance requirements associated with maintaining and distributing relevant paperwork. The FDIC believes that this is likely to pose a relatively small benefit to the 35 institutions to which it applies. Further, the FDIC believes that it is unlikely that the rescission of the requirement to establish, maintain, and distribute upon request nondiscriminatory loan underwriting standards for these 35 State savings associations would lead to an increase in discriminatory lending behavior because these institutions are still subject to the general fair lending laws. Therefore, the FDIC does not believe that this aspect of the proposed rule, if adopted, is likely to have substantive effects on FDIC-supervised institutions or applicants.
As discussed previously, if the proposed rule were adopted by the FDIC, § 390.144 would be rescinded. Section 390.144(a) is substantially similar to, and duplicative of, prohibitions under the general federal fair lending laws.
As discussed previously, if the proposed rule were adopted by the FDIC, § 390.145 would be rescinded. Section 390.145 is substantially similar to § 338.4 and the proposed rule would amend § 338.4 to cover State savings associations in addition to insured State nonmember banks. Therefore, the FDIC believes that this aspect of the proposed rule is unlikely to have any substantive effect on FDIC-supervised institutions or applicants.
As discussed previously, if the proposed rule were adopted by the FDIC, § 390.146 would be rescinded. The requirements of § 390.146 are substantially similar to the requirements applicable to insured State nonmember banks under § 338.4. Section 338.4, however, unlike § 390.146, does not include a “recommendation” that a Spanish-language version of the Equal Housing Lender poster be posted in offices serving areas with a substantial Spanish-speaking population. The FDIC does, however, make a Spanish-language poster available to the institutions it supervises. Given the substantive similarity of much of § 390.146 to § 338.4, the FDIC believes that rescinding it is unlikely to have substantial effects on covered institutions or applicants.
If the proposed rule were adopted, the FDIC would rescind § 390.147. As previously discussed, the FDIC believes that § 390.147 is duplicative now that reporting reason for denial is required rather than optional under Regulation C. Further, since Regulation C provides a partial exemption from reporting reason for denial and certain other data points for financial institutions that meet specified conditions, but no such exemption exists for State savings associations, the proposed rule would establish parity with respect to the reporting requirements for HMDA LARs for State savings associations and other FDIC-supervised institutions. The FDIC believes that this aspect of the proposed rule is unlikely to significantly affect FDIC-supervised institutions or applicants.
As previously discussed, the proposed rule would rescind § 390.148 if it were adopted. The FDIC believes that there is significant overlap between the requirements of § 390.148(a) through (d) and various aspects of the EEOA. Further, § 390.148(e) and (f) references multiple employment laws, including the EEOA, which if the rest of § 390.148 were rescinded as proposed, would be unnecessary. Therefore, the FDIC believes that this aspect of the proposed rule is unlikely to substantively affect FDIC-supervised institutions or applicants.
As previously discussed, the proposed rule would rescind § 390.149 if it were adopted. The FDIC has procedures for referring complaints to HUD regarding lending discrimination by financial institutions and these procedures apply to complaints involving lending by State savings associations. However, there appears to be no equivalent requirement to the provisions in § 390.149 regarding referring complaints to EEOC regarding employment discrimination by FDIC-supervised institutions. This aspect of the proposed rule would thus create parity between insured State nonmember banks and State savings associations with respect to complaints about discriminatory lending. Given that FDIC-supervised institutions are still subject to applicable elements of the EEOA and FDIC regulations and procedures, the FDIC does not believe that this aspect of the proposed rule is likely to have a substantive effect on covered institutions or their employees.
As previously discussed, the proposed rule would rescind § 390.150 if adopted. This section contains guidelines intended to serve as a resource for State savings associations when developing and implementing nondiscriminatory lending policies. State savings associations, like other FDIC-supervised banks, remain subject to federal fair lending laws and regulations and the FDIC does not believe removal of these guidelines will have any meaningful effect on these institutions or their applicants.
Finally, the proposed rule, if adopted, would make some technical changes to FDIC's part 338 in order to make it applicable to State savings associations and provide for Equal Housing Lender posters to state the accurate CRC mailing address. As previously discussed, these proposed changes are unlikely to have significant effects on State savings associations because they are already subject to substantively similar regulations.
Rescinding part 390, subpart G also will serve to streamline the FDIC's rules and eliminate unnecessary, inconsistent, and duplicative regulations. If the proposal is adopted in its final form, insured State nonmember banks and State savings associations will be subject to the same anti-discrimination requirements.
Several alternatives to the proposed rulemaking were available to the FDIC. The FDIC could have retained the current regulations in part 390, subpart
In the instances where the regulations in part 390, subpart G were more stringent than similar requirements for insured State nonmember banks, the FDIC could have applied those requirements to insured State nonmember banks. However, the FDIC chose not to adopt this alternative because it believes the fair lending laws and regulations that already apply to insured State nonmember banks provide an appropriate and sufficient framework to prohibit discrimination.
The FDIC believes that this proposed rule, which would remove and rescind part 390, subpart G, and make the FDIC's existing nondiscrimination regulations applicable to State savings associations, is less burdensome to State savings associations and the public than the alternatives discussed above since it would promote consistency among the regulatory requirements for all FDIC-supervised institutions and improve the public's understanding and ease of reference. Additionally, the FDIC believes that the proposed rule does not materially change the nondiscrimination requirements to which insured State nonmember banks and State savings associations are required to adhere, relative to the alternatives discussed.
The FDIC invites comments on all aspects of this proposed rulemaking, and specifically requests comments on the following:
What impacts, positive or negative, can you foresee in the FDIC's proposal to rescind and remove part 390, subpart G?
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA),
The Proposed Rule would rescind and remove from FDIC regulations part 390, subpart G because it is duplicative and unnecessary. This rule was transferred with only nominal changes to the FDIC from the OTS when the OTS was abolished by title III of the Dodd-Frank Act. Although few provisions of part 390, subpart G have a direct counterpart within the FDIC's existing nondiscrimination requirements for insured State nonmember banks in part 338, it is largely duplicative of federal laws (ECOA, FHA, EEOA, and other laws concerning nondiscrimination in lending, employment, and services) and implementing regulations of the CFPB or the Department of Labor. Where provisions of part 390, subpart G had no such counterparts, the FDIC concluded no reasonable basis exists for applying these requirements to State savings associations but not to insured State nonmember banks or that the requirements are inconsistent with current agency policy.
In addition, the proposed rule would: (1) Amend part 338 to include State savings associations and their subsidiaries within its scope; (2) define the new terms “FDIC-supervised institution” and “State savings association;” and (3) make conforming technical edits throughout to update the regulation. These revisions would clarify that State savings associations, as well as insured State nonmember banks, are subject to part 338 with the exception of § 338.9.
Therefore, the Proposed Rule does not revise any existing, or create any new information collection pursuant to the PRA. Consequently, no submission will be made to the OMB for review.
The Regulatory Flexibility Act (RFA) generally requires that, in connection with a proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis describing the impact of the proposed rule on small entities.
As of March 31, 2020, the FDIC-supervised 3,309 depository institutions,
As previously discussed, if the proposed rule were adopted by the FDIC § 390.142 would be rescinded. This section has substantial overlap with the requirements of ECOA and Regulation B and the FHA and HUD's FHA regulations. Additionally, although some aspects of § 390.142 have no counterpart in existing regulations for State nonmember banks, as indicated earlier the FDIC is uncertain if it has the authority to amend those elements. Therefore, the FDIC believes that these aspects of the proposed rule are unlikely to significantly affect small FDIC-supervised institutions or borrowers.
If the proposed rule were adopted, the FDIC would rescind § 390.143. As discussed previously, aspects of 390.143 are either duplicative of prohibitions
As discussed previously, if the proposed rule were adopted by the FDIC § 390.144 would be rescinded. Section 390.144(a) is substantially similar to, and duplicative of, prohibitions under the general federal fair lending laws.
As discussed previously, if the proposed rule were adopted by the FDIC § 390.145 would be rescinded. Section 390.145 is substantially similar to § 338.4 and the proposed rule would amend § 338.4 to cover State savings associations in addition to insured State nonmember banks. Therefore, the FDIC believes that this aspect of the proposed rule is unlikely to have any substantive effect on small FDIC-supervised institutions or borrowers.
As discussed previously, if the proposed rule were adopted by the FDIC, § 390.146 would be rescinded. The requirements of § 390.146 are substantially similar to the requirements applicable to insured State nonmember banks under § 338.4. However, § 338.4, unlike § 390.146, does not include a “recommendation” that a Spanish-language version of the Equal Housing Lender poster be posted in offices serving areas with a substantial Spanish-speaking population. As indicated earlier, the FDIC is taking the approach of not including non-binding recommendations in the proposed rule. The FDIC does, however, make a Spanish-language poster available to the institutions it supervises. Given the substantive similarity of much of §§ 390.146 to 338.4, the FDIC believes that rescinding it is unlikely to have substantial effects on small covered institutions or borrowers.
If the proposed rule were adopted, the FDIC would rescind § 390.147. As previously discussed, the FDIC believes that § 390.147 is duplicative now that reporting reason for denial is required rather than optional under Regulation C. Further, since Regulation C provides a partial exemption from reporting reason for denial and certain other data points for financial institutions that meet specified conditions, but no such exemption exists for State savings associations, the proposed rule would establish parity with respect to the reporting requirements for HMDA LARs for State savings associations and other FDIC-supervised institutions. The FDIC believes that this aspect of the proposed rule is unlikely to substantively affect small FDIC-supervised institutions or borrowers.
As previously discussed, the proposed rule would rescind § 390.148 if it were adopted. The FDIC believes that there is significant overlap between the requirements of § 390.148(a) through (d) and various aspect of the EEOA. Further, § 390.148(e) and (f) references multiple employment laws, including the EEOA, which if the rest of § 390.148 were rescinded as proposed, would be unnecessary. Therefore, the FDIC believes that this aspect of the proposed rule is unlikely to substantively affect small FDIC-supervised institutions or borrowers.
As previously discussed, the proposed rule would rescind § 390.149 if it were adopted. The FDIC has procedures for referring complaints to HUD regarding lending discrimination by financial institutions and these procedures apply to complaints involving lending by State savings associations. However, there appears to be no equivalent requirement to the provisions in § 390.149 regarding referring complaints to EEOC regarding employment discrimination by FDIC-supervised institutions. This aspect of the proposed rule would thus create parity between State nonmember banks and State savings associations with respect to discriminatory complaints. Given that FDIC-supervised institutions are still subject to applicable elements of the EEOA and FDIC regulations and procedures, the FDIC does not believe that this aspect of the proposed rule is likely to have a substantive effect on covered institutions or their employees.
As previously discussed, the proposed rule would rescind § 390.150 if adopted. This section contains guidelines intended to serve as a resource for State savings associations when developing and implementing nondiscriminatory lending policies. Small State savings associations, like other FDIC-supervised banks, remain subject to federal fair lending laws and regulations and the FDIC does not believe removal of these guidelines will have any meaningful effect on these institutions or their borrowers.
Finally, the proposed rule if adopted would make some technical changes to FDIC's part 338 in order to make it applicable to State savings associations and provide for Equal Housing Lender posters to state the accurate CRC mailing address. As previously discussed, these proposed changes are unlikely to pose significant effects for small State savings associations because they are already subject to substantively similar regulations.
Rescinding part 390, subpart G also will serve to streamline the FDIC's rules and eliminate unnecessary, inconsistent, and duplicative regulations. If the proposal is adopted in its final form, all small insured State nonmember banks and State savings associations—will be subject to the same anti-discrimination requirements.
The FDIC does not have data with which to estimate the costs that State savings associations currently incur to comply with subpart G or how those costs will change if this proposal were adopted in its current form. However, since this proposal would only affect 33 small entities, and since the differences between subpart G and existing regulation and law are modest, the FDIC certifies that this proposal would not have a significant economic effect on a substantial number of small entities.
The FDIC invites comments on all aspects of the supporting information provided in this section, and in particular, whether the proposed rule would have any significant effects on small entities that the FDIC has not identified.
Section 722 of the Gramm-Leach-Bliley Act
• Has the FDIC organized the material to suit your needs? If not, how could it present the rule more clearly?
• Have we clearly stated the requirements of the rule? If not, how could the rule be more clearly stated?
• Does the rule contain technical jargon that is not clear? If so, which language requires clarification?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes would make the regulation easier to understand?
• What else could we do to make the regulation easier to understand?
Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.
Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA),
Aged, Banks, Banking, Civil rights, Credit, Fair housing, Individuals with disabilities, Marital status discrimination, Mortgages, Religious discrimination, Reporting and recordkeeping requirements, Savings associations, Sex discrimination, Signs and symbols.
Administrative practice and procedure, Advertising, Aged, Civil rights, Conflict of interests, Credit, Crime, Equal employment opportunity, Fair housing, Government employees, Individuals with disabilities, Nondiscrimination requirements, Reporting and recordkeeping requirements, Savings associations.
For the reasons stated in the preamble, the FDIC proposes to amend 12 CFR parts 338 and 390 as follows:
The authority citation for part 338 is revised to read as follows:
12 U.S.C. 1817, 1818, 1819, 1820(b), 2801
The purpose of this subpart A is to prohibit FDIC-supervised institutions from engaging in discriminatory advertising with regard to residential real estate-related transactions. This subpart A also requires FDIC-supervised institutions to publicly display either the Equal Housing Lender poster set forth in § 338.4(b) of the FDIC's regulations or the Equal Housing Opportunity poster prescribed by part 110 of the regulations of the United States Department of Housing and Urban Development (24 CFR part 110). This subpart A enforces section 805 of title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3601-3619 (Fair Housing Act), as amended by the Fair Housing Amendments Act of 1988.
For purposes of subpart A of this part:
(a)
(b)
(c)
(d)
(1) A physical or mental impairment which substantially limits one or more of such person's major life activities;
(2) A record of having such an impairment; or
(3) Being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).
(e)
(1) A parent or another person having legal custody of such individual or individuals; or
(2) The designee of such parent or other person having such custody, with
The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.
(f)
(a) Any FDIC-supervised institution which directly or through third parties engages in any form of advertising of any loan for the purpose of purchasing, constructing, improving, repairing, or maintaining a dwelling or any loan secured by a dwelling shall prominently indicate in such advertisement, in a manner appropriate to the advertising medium and format utilized, that the FDIC-supervised institutions makes such loans without regard to race, color, religion, national origin, sex, handicap, or familial status.
(1) With respect to written and visual advertisements, this requirement may be satisfied by including in the advertisement a copy of the logotype with the Equal Housing Lender legend contained in the Equal Housing Lender poster prescribed in § 338.4(b) of the FDIC's regulations or a copy of the logotype with the Equal Housing Opportunity legend contained in the Equal Housing Opportunity poster prescribed in § 110.25(a) of the United States Department of Housing and Urban Development's regulations (24 CFR 110.25(a)).
(2) With respect to oral advertisements, this requirement may be satisfied by a statement, in the spoken text of the advertisement, that the FDIC-supervised institution is an “Equal Housing Lender” or an “Equal Opportunity Lender.”
(3) When an oral advertisement is used in conjunction with a written or visual advertisement, the use of either of the methods specified in paragraphs (a)(1) and (2) of this section will satisfy the requirements of this paragraph (a).
(b) No advertisement shall contain any words, symbols, models or other forms of communication which express, imply, or suggest a discriminatory preference or policy of exclusion in violation of the provisions of the Fair Housing Act or the Equal Credit Opportunity Act.
(a) Each FDIC-supervised institution engaged in extending loans for the purpose of purchasing, constructing, improving, repairing, or maintaining a dwelling or any loan secured by a dwelling shall conspicuously display either the Equal Housing Lender poster set forth in paragraph (b) of this section or the Equal Housing Opportunity poster prescribed by § 110.25(a) of the United States Department of Housing and Urban Development's regulations (24 CFR 110.25(a)), in a central location within the FDIC-supervised institution where deposits are received or where such loans are made, in a manner clearly visible to the general public entering the area, where the poster is displayed.
(b) The Equal Housing Lender Poster shall be at least 11 by 14 inches in size and have the following text:
We Do Business in Accordance with Federal Fair Lending Laws.
UNDER THE FEDERAL FAIR HOUSING ACT, IT IS ILLEGAL, ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, RELIGION, SEX, HANDICAP, OR FAMILIAL STATUS (HAVING CHILDREN UNDER THE AGE OF 18) TO:
• Deny a loan for the purpose of purchasing, constructing, improving, repairing or maintaining a dwelling or to deny any loan secured by a dwelling; or
• Discriminate in fixing the amount, interest rate, duration, application procedures, or other terms or conditions of such a loan or in appraising property.
IF YOU BELIEVE YOU HAVE BEEN DISCRIMINATED AGAINST, YOU SHOULD SEND A COMPLAINT TO:
Assistant Secretary for Fair Housing and Equal Opportunity, Department of Housing and Urban Development, Washington, DC 20410.
For processing under the Federal Fair Housing Act
AND TO:
Federal Deposit Insurance Corporation, Consumer Response Center, [Insert address for the Consumer Response Center stated on the FDIC's website at
For processing under the FDIC Regulations.
UNDER THE EQUAL CREDIT OPPORTUNITY ACT, IT IS ILLEGAL TO DISCRIMINATE IN ANY CREDIT TRANSACTION:
• On the basis of race, color, national origin, religion, sex, marital status, or age;
• Because income is from public assistance; or
• Because a right has been exercised under the Consumer Credit Protection Act.
IF YOU BELIEVE YOU HAVE BEEN DISCRIMINATED AGAINST, YOU SHOULD SEND A COMPLAINT TO:
Federal Deposit Insurance Corporation, Consumer Response Center, [Insert address for the Consumer Response Center stated on the FDIC's website at
(c) The Equal Housing Lender Poster specified in this section was adopted under § 110.25(b) of the United States Department of Housing and Urban Development's rules and regulations as an authorized substitution for the poster required in § 110.25(a) of those rules and regulations.
The purpose of this subpart B is two-fold. First, this subpart B notifies all FDIC-supervised institutions of their duty to collect and retain certain information about a home loan applicant's personal characteristics in accordance with Regulation B of the Bureau of Consumer Financial Protection (12 CFR part 1002) in order to monitor an institution's compliance with the Equal Credit Opportunity Act of 1974 (15 U.S.C. 1691
For purposes of this subpart B—
(a)
(b)
(c)
(d)
All FDIC-supervised institutions that receive an application for credit primarily for the purchase or refinancing of a dwelling occupied or to be occupied by the applicant as a principal residence where the extension of credit will be secured by the dwelling
FDIC-supervised institutions and other lenders required to file a Home Mortgage Disclosure Act loan application register (LAR) with the Federal Deposit Insurance Corporation shall collect, record and report such LAR in accordance with Regulation C of the Bureau of Consumer Financial Protection (12 CFR part 1003).
Any bank which refers any applicants to a controlled entity and which purchases any covered loan as defined in Regulation C of the Bureau of Consumer Financial Protection (12 CFR part 1003) originated by the controlled entity, as a condition to transacting any business with the controlled entity, shall require the controlled entity to enter into a written agreement with the bank. The written agreement shall provide that the entity shall:
(a) Comply with the requirements of §§ 338.3, 338.4, and 338.7, and, if otherwise subject to Regulation C of the Bureau of Consumer Financial Protection (12 CFR part 1003), § 338.8;
(b) Open its books and records to examination by the Federal Deposit Insurance Corporation; and
(c) Comply with all instructions and orders issued by the Federal Deposit Insurance Corporation with respect to its home loan practices.
12 U.S.C. 1819.
Subpart F also issued under 5 U.S.C. 552; 559; 12 U.S.C. 2901
Subpart O also issued under 12 U.S.C. 1828.
Subpart Q also issued under 12 U.S.C. 1462; 1462a; 1463; 1464.
Subpart W also issued under 12 U.S.C. 1462a; 1463; 1464; 15 U.S.C. 78c; 78l; 78m; 78n; 78p; 78w.
Subpart Y also issued under 12 U.S.C. 1831o.
By order of the Board of Directors.
Federal Deposit Insurance Corporation (FDIC).
Proposed revisions to statement of policy; request for comment.
The FDIC is proposing to revise its Statement of Policy Regarding Minority Depository Institutions. Section 308 of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 established several goals related to encouraging, assisting, and preserving minority depository institutions. The FDIC has long recognized the unique role and importance of minority depository institutions and has historically taken steps to preserve and encourage minority-owned and minority-led financial institutions. The revised Statement of Policy updates, strengthens, and clarifies the agency's policies and procedures related to minority depository institutions.
Written comments must be received on or before November 24, 2020.
Interested parties are encouraged to submit written comments. Commenters are encouraged to use the title “Statement of Policy Regarding Minority Depository Institutions” to facilitate the organization and distribution of comments. You may submit comments, identified by RIN 3064-ZA19, by any of the following methods:
•
•
•
Misty Mobley, Senior Review Examiner, Division of Risk Management and Supervision, (202) 898-3771,
Section 308 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA)
On April 3, 1990, the Board of Directors of the Federal Deposit Insurance Corporation (FDIC Board and FDIC, respectively) adopted the Policy Statement on Encouragement and Preservation of Minority Ownership of Financial Institutions (1990 Policy Statement). The framework for the 1990 Policy Statement resulted from key provisions contained in Section 308 of FIRREA. The 1990 Policy Statement provided information to the public and minority banking industry regarding the agency's efforts in achieving the goals of Section 308.
During the 1990s, many MDIs continued to underperform industry averages for profitability and experience failure rates that were significantly higher than those of the industry overall. In order to discuss the challenges that MDIs faced, and identify
The FDIC also formed an Interdivisional Working Group to consider measures to modernize the policies and procedures related to MDIs. The working group incorporated many suggestions from the March 2001 forum into a revised Policy Statement Regarding Minority Depository Institutions, issued by the FDIC, after notice and comment, in April of 2002 (2002 Policy Statement).
Over the years, the FDIC has continued to modify and enhance its MDI Program to better carry out the FDIC's efforts to meet the goals in Section 308 of FIRREA. The revisions in the proposed Statement of Policy are intended, in part, to strengthen and improve the various aspects of the MDI Program and how each component of the MDI Program is carried out by various responsible entities that are part of the MDI Program. The proposed revisions to the 2002 Policy Statement reflected in the proposed Statement of Policy describe the FDIC's enduring and strengthened commitment to, and engagement with, MDIs in furtherance of its goal of preserving and promoting MDIs.
In 2019, the FDIC established a new MDI Subcommittee of the Advisory Committee on Community Banking (CBAC). The MDI Subcommittee held its inaugural meeting in December 2019. There are nine executives serving as members of the MDI Subcommittee, representing African American, Native American, Hispanic American, and Asian American MDIs across the country. The MDI Subcommittee provides recommendations regarding the FDIC's MDI Program to the CBAC for consideration. The MDI Subcommittee serves as a source of feedback with regard to the FDIC's efforts to fulfill its statutory goals to preserve and promote MDIs; provides a platform for MDIs to promote collaboration, partnerships, and best practices; and identifies ways to highlight the work of MDIs in their communities.
The FDIC published, also in 2019, an MDI research study, which explores changes in MDIs, their role in the financial services industry, and their impact on the communities they serve.
Additionally, to discuss the challenges that MDIs face, provide information on best practices, and collaborate on possible ways the regulatory agencies can promote and preserve MDIs, in June of 2019, the FDIC hosted the Interagency MDI and Community Development Financial Institution (CDFI) Bank Conference,
All of these various efforts by the FDIC to enhance its MDI Program have informed the proposed revisions to the Statement of Policy. The FDIC has received suggestions from bankers at outreach and trade association meetings as well as feedback from the June 2019 conference. The MDI Subcommittee has also provided feedback to the CBAC for consideration and recommendation to the FDIC. Many of these suggestions and feedback have been incorporated into the revised Statement of Policy. The following section summarizes the significant changes from the 2002 Policy Statement.
The FDIC is proposing to revise its MDI Policy Statement in the following areas:
The text of the proposed Statement of Policy follows:
The FDIC has long recognized the importance of minority depository institutions in the financial system and their unique role in promoting the economic viability of minority and under-served communities. The FDIC historically has implemented programs to preserve and promote these financial institutions. This Statement of Policy describes the framework the FDIC has put into place and the initiatives the FDIC will undertake to fulfill its statutory goals with respect to minority depository institutions (MDI Program).
In August 1989, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). Section 308 of FIRREA established the following goals:
• Preserve the number of minority depository institutions;
• Preserve the minority character in cases of merger or acquisition;
• Provide technical assistance to prevent insolvency of institutions not now insolvent;
• Promote and encourage creation of new minority depository institutions; and
• Provide for training, technical assistance, and educational programs.
Section 308 of FIRREA defines “minority depository institution” as any Federally insured depository institution where 51 percent or more of the voting stock is owned by one or more “socially and economically disadvantaged individuals.” “Minority,” as defined by Section 308 of FIRREA, means any “Black American, Native American, Hispanic American, or Asian American.” Therefore, for the purposes of this Statement of Policy, “minority depository institution” is defined as any Federally insured depository institution where 51 percent or more of the voting stock is owned by minority individuals. This includes institutions collectively owned by a group of minority individuals, such as a Native American Tribe. Ownership must be by U.S. citizens or permanent legal U.S. residents to be counted in determining minority ownership. In addition to the institutions that meet the ownership test, for the purposes of this Statement of Policy, institutions will be considered minority depository institutions if a majority of the Board of Directors is minority and the community that the institution serves is predominantly minority.
To ensure that all minority depository institutions are able to participate in the MDI Program, the FDIC will maintain a list of Federally insured minority depository institutions. Institutions that are not already identified as minority depository institutions can request to be designated as such by certifying that they meet the above definition. For institutions supervised directly by the FDIC, examiners will review the appropriateness of their inclusion on the list during the examination process. In addition, case managers in regional offices will note changes to the list while processing deposit insurance applications, merger applications, change of control notices, or failures of minority depository institutions. The FDIC will work closely with the other Federal banking regulators to ensure that institutions not directly supervised by the FDIC are accurately captured on the list. In addition, the FDIC will periodically provide the list to relevant trade associations and seek input regarding the accuracy of the list. Inclusion in the FDIC's MDI Program is voluntary. Any minority depository institution not wishing to participate in the MDI Program will be removed from the official list upon request.
The FDIC has designated a national director for the FDIC's MDI Program in the Washington Office and a regional coordinator in each Regional Office. The national director will consult with officials from the following FDIC Divisions to ensure appropriate personnel are involved and resources are made available with regard to MDI Program initiatives: Division of Risk Management Supervision, Division of Depositor and Consumer Protection, Division of Resolutions and Receiverships, Division of Insurance and Research, Legal Division, and the Office of Minority and Women Inclusion. The national director will also consult with other organizations within the FDIC as appropriate.
As the primary Federal regulator for State nonmember banks and State savings associations, the FDIC will focus its efforts on minority depository institutions with those charters. However, the national director will meet periodically with the other Federal banking regulators to discuss each agency's outreach efforts, to share ideas, and to identify opportunities where the
The FDIC's MDI Program will provide for continual engagement with minority depository institutions through ongoing interaction with the Washington, Regional, and Field Office staff. This interaction includes providing technical assistance to share information and expertise on supervisory topics, outreach initiatives to provide opportunities for open dialogue with senior FDIC staff, and training initiatives to offer opportunities to gain additional knowledge about specific regulatory requirements.
Further, trade associations affiliated with minority depository institutions serve as a significant resource in identifying specific interests or concerns for those institutions. The national director will regularly contact minority depository institution trade associations to seek feedback on the FDIC's efforts under the MDI Program, discuss possible training initiatives, and explore options for promoting and preserving minority depository institutions. The national director and the regional coordinators also will solicit information from trade associations and other organizations about groups that may be interested in establishing new minority depository institutions. FDIC representatives will be available to address such groups to discuss the application process, the requirements of becoming FDIC insured, and the various programs supporting minority depository institutions. The regional coordinators will contact all new minority state nonmember banks and state savings associations identified through insurance applications, merger applications, or change in control notices to familiarize the institutions with the resources available through the MDI Program.
Technical assistance, as defined by the FDIC's MDI Program, is individual assistance that a regulator will provide to a minority depository institution in response to an institution's request for assistance in understanding supervisory topics or findings. At any time, the FDIC will share information and expertise with bank management on various topics including, but not limited to, understanding bank regulations, FDIC policies, examination procedures, accounting practices, supervisory recommendations, risk management procedures, and compliance management procedures. In providing technical assistance, FDIC staff will not actually perform tasks expected of an institution's management or employees. For example, FDIC staff may explain Call Report instructions as they relate to specific accounts, but will not assist in preparing an institution's Call Report. FDIC staff may provide information on community reinvestment opportunities, but will not recommend a specific transaction.
An institution can contact its field office representatives, case manager, or review examiner to request technical assistance. In addition, the regional coordinators and the institution's assigned case manager and review examiner are knowledgeable about minority bank issues and are available to answer questions or to direct inquiries to the appropriate FDIC office or staff member with expertise on the subject for response. Case managers can explain the application process and the type of analysis and information required for different applications. Field office representatives also serve as a significant resource to minority depository institutions by readily answering examination related questions and explaining regulatory requirements. Other staff members within the FDIC with expertise in various regulatory topics will also be available to share knowledge to assist minority depository institutions in complying with regulations or implementing supervisory recommendations.
During examinations, the FDIC expects examiners to fully explain supervisory recommendations and offer to help management understand satisfactory methods to address such recommendations. At the conclusion of each examination of a minority depository institution directly supervised by the FDIC, the FDIC will be available to return to the institution to provide technical assistance by reviewing areas of concern or topics of interest to the institution. The purpose of return visits is to assist management in understanding and implementing examination recommendations, not to identify new problems.
Technical assistance is a tool to provide on-going support to institutions in an effort to ensure timely implementation of recommendations, full understanding of regulatory requirements, and in some instances, the viability of the institution. Technical assistance is not a supervisory activity and is not intended to present additional regulatory burden. Further, examination teams will not view requests for, or acceptance of, technical assistance negatively when evaluating institution performance or assigning ratings.
Outreach, as defined by the FDIC's MDI Program, consists of FDIC representatives meeting with financial institutions with a primary focus of building relationships and open communication and providing information and resources. Outreach is generally offered by the FDIC and can include meetings between financial institution management and senior FDIC management.
The FDIC maintains an MDI Subcommittee of its Advisory Committee on Community Banking (CBAC) comprised of executives of minority depository institutions. The MDI Subcommittee serves as a source of feedback on FDIC strategies to fulfill statutory goals to preserve and promote minority depository institutions. The MDI Subcommittee may also make recommendations or offer ideas to the CBAC for consideration and presentation to the FDIC. The MDI Subcommittee provides a platform for minority depository institutions to promote collaboration, partnerships, and best practices. The Subcommittee will also identify ways to highlight the work of minority depository institutions in their communities.
Executives and staff in the FDIC's regional offices will communicate regularly with each minority depository institution to outline the FDIC's efforts to promote and preserve minority depository institutions; will offer annually to have a member of regional management meet with the institution's board of directors to discuss issues of interest, including through roundtable discussions and training sessions; and will seek input regarding any training or other technical assistance the institution may desire.
The FDIC will explore opportunities to facilitate collaboration and partnering initiatives among minority depository institutions or between minority depository institutions and non-minority depository institutions. The FDIC recognizes that by facilitating these collaborative relationships, institutions can have opportunities to better meet the needs of their communities.
Training and educational programs, as defined by the FDIC's MDI program, consist of instruction designed to impart proficiency or skills related to a
The regional coordinators will report regional office activities related to the MDI Program to the national director quarterly. The national director will develop a comprehensive report on all MDI Program activities and submit the report quarterly to the Chairman. The FDIC's efforts to preserve and promote minority depository institutions will also be highlighted in the FDIC's Annual Report and the Annual Report to Congress on the Preservation and Promotion of Minority Depository Institutions pursuant to Section 367 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and Section 308 of FIRREA.
The national director and the regional office staff will routinely solicit feedback from minority depository institutions to assess the effectiveness of the FDIC's technical assistance, outreach, and training/education efforts and the MDI Program in general. The FDIC will track instances of technical assistance, outreach, and training and education and solicit feedback on the effectiveness of these activities by administering periodic surveys and holding discussions with bank management.
All insured institutions must be operated in a safe and sound manner, in accordance with FDIC's regulations. Likewise, all examinations must be conducted within the parameters of FDIC exam policies and should consistently measure the risk an institution poses to the FDIC's deposit insurance fund. Notwithstanding, and consistent with the Uniform Financial Institutions Rating System (UFIRS) and the Uniform Interagency Consumer Compliance Rating System (UICCR), examiners are expected to recognize the distinctive characteristics and differences in core objectives of each financial institution and to consider those unique factors when evaluating an institution's financial condition and risk management practices.
Under the UFIRS and UICCR, each financial institution is assigned a composite rating based on an evaluation of specific components, which are also rated. For UFIRS, these component ratings reflect an institution's capital adequacy, asset quality, management capabilities, earnings sufficiency, liquidity position, and sensitivity to market risk (commonly referred to as the CAMELS ratings). Likewise, the UICCR is organized under broad components that assess the institution's board and management oversight, compliance program, and violations of law and consumer harm. The uniform rating systems and evaluation and rating criteria are specific to the examination types performed. Further, the assignment of the rating is based solely on the subject institution's individual performance under the specific components.
Management practices, particularly as they relate to risk management, vary considerably among financial institutions depending on size and sophistication, the nature and complexity of business activities, and risk profile. Each institution must properly manage risks and have appropriate policies, processes, or practices in place that management follows and uses. Activities undertaken in a less complex institution engaging in less sophisticated risk-taking activities may only need basic management and control systems compared to the detailed and formalized systems and controls used for the broader and more complex range of activities undertaken at a larger and more complex institution.
Peer comparison data are not included in the rating systems. The principal reason is to avoid over reliance on statistical comparisons to justify the component rating being assigned. This is very important when evaluating minority depository institutions due to their unique characteristics. For example, many minority depository institutions were established to serve an otherwise under-served market. High profitability may not be as essential to the organizers and shareholders of the institution. Instead, community development, improving consumer services, and promoting banking services to the unbanked or under-banked segment of its community may drive many of the organization's decisions. The UFIRS allows for consideration of the characteristics by considering not only the level of an institution's earnings, but also the trend and stability of earnings, the ability to provide for adequate capital, the quality and sources of earnings, and the adequacy of budgeting systems.
Examiners are instructed to consider all relevant factors when assigning a component rating. The rating systems are designed to reflect an assessment of the individual institution, including its size and sophistication, the nature and complexity of its business activities, and risk profile.
The FDIC will attempt to preserve the minority character of failing institutions during the resolution process. In the event of a potential failure of a minority depository institution, the Division of Resolutions and Receiverships will contact all minority depository institutions nationwide that qualify to bid on failing institutions. The Division of Resolutions and Receiverships will solicit qualified minority depository institutions' interest in the failing institution, discuss the bidding process, and offer to provide technical assistance regarding completion of the bid forms. In addition, the Division of Resolutions and Receiverships, with assistance from the Office of Minority and Women Inclusion, will maintain a list of minority individuals and nonbank entities that have expressed an interest in acquiring failing minority depository institutions and have been pre-approved by the Division of Risk Management Supervision and the chartering authority for access to the FDIC's virtual data room for online due diligence.
The FDIC will maintain a website to promote the MDI Program. Among other things, the website will describe the tools and resources available under the program. The website will include the name, phone number, and email address of the national director, each regional coordinator, and additional staff. The website will also contain links to the list of minority depository institutions, pertinent trade associations, and other Federal agency programs. The FDIC will also explore the feasibility and usefulness of posting other items to the page, such as statistical information and comparative data for minority depository institutions. Visitors will have the opportunity to provide feedback regarding the FDIC's program and the usefulness of the website.
The Paperwork Reduction Act of 1995 (PRA)
The proposed Statement of Policy Regarding Minority Depository Institutions does not create any new or revise any existing information collections pursuant to the PRA. Rather, any reporting, recordkeeping, or disclosure activities mentioned in the proposed Statement of Policy Regarding Minority Depository Institutions are usual and customary and should occur in the normal course of business as defined in the PRA.
6.
By order of the Board of Directors.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to determine that the Anderson and Freestone Counties and the Titus County nonattainment areas, in Texas, have attained the 2010 1-hour primary Sulfur Dioxide (SO
Comments must be received on or before October 26, 2020.
Submit your comments, identified by Docket ID No. EPA-R06-OAR-2020-0434, to
The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (
Robert Imhoff, EPA Region 6 Office, SO
Throughout this document “we,” “us,” and “our” refer to the EPA.
The EPA is proposing to determine that portions of Anderson and Freestone Counties and Titus County (hereby referred to as “the nonattainment areas”), in Texas, have attained the 2010 1-hour primary SO
On June 22, 2010 (75 FR 35520), the EPA published a health-based 1-hour primary SO
The process for designating areas following promulgation of a new or revised NAAQS is contained in CAA section 107(d) (42 U.S.C. 7407(d)). After promulgation of a new or revised NAAQS, each governor or tribal leader has an opportunity to recommend air quality designations, including the appropriate boundaries for nonattainment areas, to the EPA (42 U.S.C. 7407(d)(1)(A)). The EPA considers these recommendations when fulfilling its duty to promulgate the formal area designations and boundaries for the new or revised NAAQS. By no later than 120 days prior to promulgating designations, the EPA is required to notify states, territories, and tribes, as appropriate, of any intended modifications to an area designation or boundary recommendation that the EPA deems necessary (42 U.S.C. 7407(d)(1)(B)).
After invoking a 1-year extension of the deadlines to designate areas, as provided for in section 107(d)(1)(B) of the Act, the EPA published an initial round of SO
For SO
In September 2015, Texas submitted updated recommendations for areas of the state where there were no monitors, including the above counties.
On June 30, 2016, the EPA signed the final action designating 61 additional areas for Round 2 (81 FR 45039, July 12, 2016). On November 29, 2016, EPA supplemented its Round 2 designations by signing a supplemental final action that included nonattainment designations for portions of Freestone and Anderson Counties and Titus County (“Round 2 Supplement”) (81 FR 89870, December 13, 2016). This action established an attainment date five years after the effective date for the areas designated as nonattainment for the 2010 SO
For the SO
The EPA issued its “Clean Data” policy memoranda for SO
Additionally, the EPA has issued national rulemakings that have codified this policy for ozone and fine particulate matter (PM
In the memorandum of April 23, 2014, from Steve Page, Director, EPA Office of Air Quality Planning and Standards to the EPA Air Division Directors “Guidance for 1-hr SO
A clean data determination is not a redesignation to attainment. For the EPA to redesignate a nonattainment area to attainment, the area must satisfy all of the statutory criteria for redesignation to attainment which, in addition to determining the area is in attainment, include a demonstration that the improvement in the area's air quality is due to permanent and enforceable emission reductions; have a fully approved SIP that meets all of the applicable requirements under CAA section 110 and CAA part D; and have a fully approved maintenance plan.
Generally, the EPA relies on ambient air quality monitoring data alone in order to make determinations of attainment for areas designated nonattainment for a particular NAAQS. However, given the Agency's historical approach toward SO
The 2014 SO
For areas designated based on air quality modeling alone and where the source determined to be the primary cause of the violation has been permanently shut down, a more streamlined analysis may be
TCEQ provided information related to primary sources of SO
As discussed above, for the SO
Regarding the Anderson and Freestone Counties area, Vistra Energy permanently retired the Big Brown coal-fired steam electric generating Units 1 and 2 on February 12, 2018. Vistra Energy filed to void the Big Brown Title V permit, FOP 065, on May 24, 2018 and it was voided by TCEQ on August 29, 2018. A letter was submitted by Vistra Energy to TCEQ to void Big Brown's individual NSR permits (17891, 18744, 45420, 53205, 54810, 56445, 56447, 83646, 83647, 85296, 94619, 95214, 96276, 99047, 99050, 106862, 108990, 112207, and 148918). On March 29, 2018, TCEQ cancelled all new source review authorizations for Big Brown Units 1 and 2 and certain other facilities, as requested by Vistra Energy.
Regarding the Titus County area, Vistra Energy permanently retired the Monticello coal-fired steam electric generating Units 1, 2, and 3 on December 31, 2017. Vistra Energy filed to void the Monticello Title V permit, FOP 64, on May 23, 2018 and it was voided by TCEQ on August 3, 2018. A letter was submitted by Vistra Energy to TCEQ to void individual NSR permits (2401, 26740, 45432, 54808, 56384, 71238, 85294, 95215, 104897, 105738, 146220, 83645, and 83640) on February 9, 2018. On February 14, 2018, TCEQ cancelled all new source review authorizations for Monticello Units 1, 2, and 3 and certain other facilities, as requested by Vistra Energy.
Texas provided recent monitoring data from the Fairfield FM 2570 Ward Ranch monitor, located approximately three miles southwest of the Big Brown plant, and from the Cookville FM 4855 monitor, located approximately 12 miles to the east of the Monticello plant and source-oriented to the still-operational Welsh power plant. The air quality data from these two monitors demonstrate a decrease in ambient SO
In its 2017 annual monitoring network plan, Texas proposed SO
Texas sited and began operating a monitor in the area of the Big Brown power plant (within the Freestone/Anderson Counties nonattainment area) on October 30, 2017. Though the Big Brown power plant shut down in February 2018, Texas continues to operate the monitor. EPA requires three calendar years of complete, quality assured, certified monitoring data to determine a design value, the measure of an area's air quality defined statistically by the form of the standard. For the 2010 one-hour SO
For the Titus County nonattainment area, Texas did not install a monitor planned near the Monticello power plant once the retirement of the facility was announced for 2017. However, the TCEQ provided monitoring data from the Welsh monitor, (the Cookville FM 4855 monitor) also located in Titus county, approximately 16 km to the east of the nonattainment area surrounding the Monticello Power Plant. Unlike the Big Brown Monitor, the Welsh Monitor has 3 years of complete, certified monitoring data from the period of
The monitor at Welsh began reporting data to the EPA's Air Quality System (AQS) on January 1, 2017. The 2017-2019 design value for the most recent three years of complete, quality assured, and certified ambient air monitoring data is 28 ppb, 37% of the standard. This represents an upper limit for the estimated design value for the Titus County nonattainment area since the Welsh monitor includes the impacts from the nearby Welsh Power Plant. Concentrations in the nonattainment area, further from the Welsh plant, would be expected to be lower since there are no other large sources nearby. See the section below for EPA's analysis of the Welsh Monitor data as an indicator of air quality in the Titus nonattainment area.
The EPA is proposing to issue a clean data determination for the Anderson and Freestone Counties and the Titus County nonattainment areas based on the shutdown of the sources in the nonattainment areas, and as supported by monitoring data from within or near to the nonattainment areas and an evaluation of previous modeling. A detailed analysis of the monitoring data is presented below. In addition, we consider below available modeling data and more recent emission inventory data for the areas as further support for our proposed determination, consistent with our Clean Data Policy, that the nonattainment areas are attaining the 2010 SO
In 2016, Sierra Club and Vistra Energy submitted modeling data for the then most recent three years (2013-2015). This modeling provided the basis for the two nonattainment designations as discussed earlier.
In the 2016 designation action, EPA found that the Sierra Club's modeled source inventory was created in accordance with the 2014 SO
We have evaluated this modeling to determine if there is any possibility the area would still be in nonattainment after the plant shutdowns. EPA also reviewed 2016-2019 emissions data from the Clean Air Markets Database (CAMD) and compared those emissions to the assumptions made in the 2013-2015 modeling demonstration. As shown in Table 1, beginning in the second quarter of 2018 both plants' emissions are omitted in CAMD, indicating no SO
The only emissions explicitly modeled were those from Big Brown and Monticello. The contributions from all other sources were represented in the model by an estimate of the background concentration. This is a technique in modeling to address smaller or more distant source contributions by examining monitoring data thought to be representative. These contributions were estimated to be small, 2 ppb for both areas. Review of 2017 National Emission Inventory data shows one additional SO
The overall modeled concentrations at a receptor were computed by Equation 1.
Because the Sierra Club sufficiently considered all significant sources of SO
According to the 2014 SO
Data from the Big Brown monitor demonstrates a marked improvement in air quality in the nonattainment area due to the permanent retirement of the source as shown in Table 2. During the initial 107-day period from the start of monitoring on October 31, 2017 to the shutdown of Big Brown on February 14, 2018, the 99th percentile concentration (the 1st high value for this shorter-than-one-year period) was 77.5 ppb, slightly above the standard. Post-shutdown, 321 days were measured during 2018; during this period the 99th percentile concentration (the 3rd high value) was 14 ppb, 19% of the standard. The 99th percentile concentration for 2019 (the 4th high value) is 5.8 ppb, 8% of the standard. Preliminary monitoring data for the first quarter of 2020 gives a 99th percentile (the first-high value) of 7.6 ppb. The extremely low 99th percentile concentrations post-shutdown indicate that the monitored 99th percentile concentrations in the Freestone and Anderson County nonattainment area are now, and will continue to be, well below the NAAQS.
As discussed previously, the Welsh Monitor provides a conservative estimate of possible concentrations in the Titus nonattainment area. Its design value is 28.0 ppb, in attainment of the standard, and supports the EPA's proposed determination that concentrations in the Titus County nonattainment area would also be in attainment. The shutdown of Monticello also reduced concentrations at the Welsh monitor when winds blew from the direction of Monticello (231°-321°). In 2017, prior to the shutdown, the maximum concentration from the direction of Monticello was 112.7 ppb. After the shutdown the maximum concentrations from that direction in 2018 and 2019 were 6.8 ppb and 6 ppb respectively.
Based on our analysis, the monitoring data from the Big Brown and Welsh DRR Monitors, before and after the major source shutdowns, support our proposed determination that both areas are now in attainment.
The EPA acknowledges the permanent shut down of the Vistra Energy Big Brown and Monticello power plants and recognizes the corresponding relationship between the decrease in concentrations of SO
If this proposed determination is made final, the requirements for the state to submit an attainment demonstration, a reasonable further progress plan, contingency measures, and other planning SIP revisions related to attainment of the 2010 1-hour primary SO
If, after considering any comments received on this proposal, the EPA finalizes a clean data determination for these areas, the state would still be subject to nonattainment area requirements, including nonattainment new source review and emission inventory requirements, until the area is redesignated to attainment.
This proposed clean data determination is limited to a determination that the areas are attaining the 2010 1-hour primary SO
This action proposes to make a determination based on air quality monitoring data and modeling and would, if finalized, result in the suspension of certain Federal requirements and would not impose any additional requirements. For that reason, this proposed action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because this action is not
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed action does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Sulfur dioxide, Attainment determination.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the Wisconsin Department of Natural Resources (WDNR or Wisconsin) on December 13, 2019. Wisconsin requests that EPA approve rules related to control of volatile organic compound (VOC) emissions from offset lithographic printing operations into the Wisconsin's SIP. These revisions include amendments to the Wisconsin Administrative Code (WAC), Chapter NR 422.
Comments must be received on or before October 26, 2020.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2019-0700 at
Kathleen Mullen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-3490,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
EPA is proposing to approve revisions to the Wisconsin Administrative Code Chapter NR 422, into the Wisconsin SIP. These revisions amend the control of VOC emissions from offset lithographic printing operations.
There are two state rules (NR 422.142 and NR 422.143, Wis. Adm. Code) regulating VOC emissions from lithographic printing operations in Wisconsin.
Section NR 422.142, Wis. Adm. Code (Lithographic printing—Part 1) contains requirements that were established as RACT requirements for the 1979 1-hour ozone National Ambient Air Quality Standard (NAAQS) for nine counties in southeast Wisconsin (Kenosha, Kewaunee, Manitowoc, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha Counties), and became effective on July 1, 1995. Section NR 422.143, Wis. Adm. Code (Lithographic printing—Part 2) was established as RACT requirements for the 1997 8-hour ozone NAAQS for seven counties located in southeast Wisconsin (Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha), and became effective on August 1, 2009. The requirements in Part 2 are based on the limits established in the latest Control Techniques Guidelines (CTG) for Offset Lithographic Printing and Letterpress Printing, published by EPA in 2006. NR 422.142 and NR 422.143 were previously approved into Wisconsin's SIP on August 7, 2012 (77 FR 46961).
The two-part organizational structure of these rules creates potential confusion in the application of the rules. Revisions to these rules (NR 422.142 and NR 422.143, Wis. Adm. Code) will clarify and streamline the VOC RACT requirements for lithographic printing facilities. The
EPA has reviewed Wisconsin's revised VOC rules for lithographic printing facilities, which include: Adding new definitions in NR 422.02, Wis. Adm. Code., changing the rule applicability of NR 422.142 and 422.143, Wis. Adm. Code, replacing the term “blanket or roller wash” with “cleaning solution” in NR 422.142 and 422.143, Wis. Adm. Code, revising the VOC emission limits for blanket or roller wash, clarifying the associated monitoring and recordkeeping requirements, eliminating the periodic stack testing requirements for small sources, and including the calculation methods for composite partial vapor pressure calculations in NR 422.143.
The proposed revisions are consistent with the latest CTG published by EPA in 2006, clarify the existing state rule requirements for lithographic printing operations in the southeastern part of Wisconsin, and streamline the implementation of these state rules. A brief discussion of these revisions follows.
A new definition to “Automatic blanket and roller wash” has been added to Wisconsin's lithographic printing regulations. This definition is approvable because it is a necessary update to the definition section and accurately describes that “Automatic blanket and roller wash” refers to all the printing press-related cleaning activities consistent with the CTG.
A new definition to “Cleaning solution” has been added to Wisconsin's lithographic printing regulations. This definition is approvable because it is a necessary update to the definition section and accurately describes cleaning solutions consistent with the CTG.
A new definition to “Janitorial supplies” has been added to Wisconsin's lithographic printing regulation. This definition is approvable because it is a necessary update to the definition section and accurately describes janitorial supplies consistent with the CTG.
This rule has been amended to narrow its applicability to cover only existing facilities located in Kewaunee and Manitowoc counties. Specifically, seven counties (Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha) from the list of the affected facilities under NR 422.142 were removed, because they are covered under the requirements of NR 422.143, which is more stringent and consistent with the latest CTG published in 2006. This revision is approvable because it is consistent with the subject CTG.
The printing industry refers to “blanket or roller wash” as the solvents used for blanket wash and roller wash only. “Cleaning solution” refers to all the printing press-related cleaning activities. In order to clarify how the term is used by the printing industry, these rules have been revised to replace the term “blanket or roller wash” with “cleaning solution.” These revisions are approvable since they are consistent with the terms used in EPA's 2006 CTG.
The VOC content limits for the cleaning solutions have been revised to be less than 70% by weight. This change is approvable since it is consistent with the VOC content limits in the 2006 CTG.
The formula used to calculate the VOC vapor pressure limits for the cleaning solutions was revised from “vapor pressure for each VOC component” to “VOC composite partial vapor pressure.” This revision is approvable since it is consistent with VOC vapor pressure limits used in NR 422.143 and the latest 2006 CTG.
The monitoring and recordkeeping requirements were revised to clarify the temperature monitoring and maintenance requirements for control devices. These revisions are approvable since they clarify the rule requirements regarding monitoring and record keeping for lithographic printing operations.
The stack test requirements for small sources were revised to remove periodic stack testing that requires retesting the control device every 48 months. These revisions apply only to sources with allowable VOC emissions that are less than 100 tons per year from lithographic printing facilities. The tested control efficiencies for these existing lithographic printing sources exceed 98%, and control efficiency does not go down as the control device ages. Therefore, it was determined that initial stack testing, periodic monitoring and recording of control device operating temperature, and maintenance of the control device are sufficient to demonstrate compliance with the control efficiency requirements for the control devices installed with the lithographic printing presses, and the periodic stack testing requirement for small sources could be removed. These revisions are approvable since they clarify the rule requirements regarding stack test testing for small lithographic printing sources and do not compromise the effectiveness of the rule.
For the lithographic printing sources with allowable VOC emissions that are greater than 100 tons per year, the periodic testing requirement (every 24 months) will remain in the rule. The testing exception scenarios specified in NR 439.075(4), Wis. Adm. Code, still apply to these larger sources that could reduce the frequency of periodic testing for these sources. The language in NR 422.142(5)(b)1. and 422.143(7)(b)1., Wis. Adm. Code, was revised to clarify that the testing exceptions in NR 439.075(4), Wis. Adm. Code, apply to larger sources. These revisions are approvable since they clarify the rule requirements regarding stack testing for large lithographic printing sources.
Section NR 422.143(7)(d) was added to include the equation used to calculate composite partial vapor pressure for cleaning solutions. This revision clarifies how affected sources are to demonstrate compliance with the applicable limitations. Section NR 422.142(5)(d) was revised to incorporate this calculation method. These revisions are approvable since they clarify the rule requirements regarding composite partial vapor pressure calculations for lithographic printing operations.
The applicable areas in this section were revised to cover new and modified lithographic printing facilities in Kewaunee and Manitowoc Counties. New control devices in these counties must meet the higher control efficiency requirements for add-on control devices specified in this section. Revisions in this section are approvable because they
EPA is proposing to approve the Wisconsin SIP revisions to its rules relating to the control of VOC emissions from offset lithographic printing operations (WI Admin Code NR 422.02, 422.142, 422.143) submitted on December 13, 2019. EPA is soliciting public comment on the issues discussed in this document. These comments will be considered before taking final action.
In this proposed rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Wisconsin Administrative Code provisions NR 422.02, NR 422.142, and NR 422.143, published in the Wisconsin Register June 2019 No. 762b and became effective July 1, 2019. EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Volatile organic compounds.
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 October 26, 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 October 26, 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.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the revised information collection, Federal Excess Personal Property (FEPP) and Firefighter Property (FFP) Program Administration.
Comments must be received in writing on or before November 24, 2020 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to: USDA, Forest Service, Attention Clint Cross, USDA Forest Service, Washington Office Fire and Aviation Management (FAM), 1400 Independence Avenue Southwest, Mailstop 1107, Washington, DC 20250. Comments may also be submitted via email to:
The public may inspect comments received at USDA Forest Service, Washington Office during normal business hours. Visitors are encouraged to call ahead to 202-205-0995 to facilitate entry to the building.
Clint Cross, Fire and Aviation Management by phone at 202-205-0995.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
A cooperative agreement collects information from the participating State agencies and outlines the requirements and rules for the cooperation. Each State forestry agency shall provide an Accountable Officer who will be responsible for the integrity of the program within their respective State. For this reason, FEPP and FFP collects the state forestry agency contact information, the information of the Accountable Officer, and the requirements of participation in the FEPP and FFP programs.
A cooperative agreement is prepared by each State forestry agency that desires to participate in one, or both programs. Participating State agencies must submit separate agreements if they desire to be participants in both programs. Agreements will be processed and maintained at the United States Department of Agriculture, Forest Service, Fire and Aviation Management, Landscapes and Partnerships Assistant Director area and in each Forest Service Regional Office.
Since the FEPP property belongs to the Forest Service, the agency inventory system facilitates reporting by state agencies to the Forest Service on the status and location of the property. State agencies use the electronic database (Federal Excess Property Management Information System or FEPMIS) to submit information regarding the property make, model, serial number, acquisition value, location, and acquisition date when an item is acquired or no longer needed. Forest Service property management technicians will collect the information from FEPMIS and enter it into the National Finance Center database (CPAIS-PP), as required by Federal Property Management Regulations. Forest Service property management officers will analyze the data collected to ensure that the property accountability is accurate, and no misuse of property is occurring.
The authority to loan surplus supplies to state agencies comes from the Federal Property and Administration Services Act of 1949, 40 U.S.C. and grants the authority for the FEPP program. Authority to donate excess supplies comes from 10 U.S.C., Subtitle A, Part IV, Chapter 153, 2576b which grants the authority for the FFP program.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the
Census Bureau, Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment on the proposed extension of the Longitudinal Employer-Household Dynamics data collection, prior to the submission of the information collection request (ICR) to OMB for approval.
To ensure consideration, comments regarding this proposed information collection must be received on or before November 24, 2020.
Interested persons are invited to submit written comments by mail to
Requests for additional information or specific questions related to collection activities should be directed to Keith Bailey, Assistant Center Chief, (301) 763-2923,
A 21st century statistical system must provide information about the dynamic economy quickly, using data assets efficiently while minimizing the burden of collecting and providing data and fully preserving confidentiality. The Census Bureau's Longitudinal Employer-Household Dynamics (LEHD) data infrastructure has demonstrated the power and usefulness of linking multiple business and employee data sets with state-of-the-art confidentiality protections to build a longitudinal national frame of jobs.
LEHD supports the Department of Commerce plan to improve American competitiveness and measures of innovation. It provides federal, state, and local policymakers and planners, businesses, private sector decision makers, and Congress with comprehensive and timely national, state, and local information on the dynamic nature of employers and employees.
LEHD significantly reduces the overall effort for the generation of its quarterly data product by:
• Leveraging existing federal administrative and state data.
• Avoiding costs required to expand existing surveys to collect the information directly.
• Reducing respondent burden by limiting the number of required resources to just the owners of the required data.
LEHD is a result of the Local Employment Dynamics (LED) Partnership. The LED Partnership is a partnership between the US Census Bureau and the Labor Market Information (LMI) agencies from 50 states, the District of Columbia, and the territories of Puerto Rico, Guam and the U.S. Virgin Islands. This partnership supports the development, promotion, and distribution of the following public-use data products:
• Quarterly Workforce Indicators (QWI)—LEHD's flagship data product is the Quarterly Workforce Indicators (QWI) which provides 32 statistical indicators on employment, job creation and destruction, accessions (hires and recalls), and separations (
○ County, metropolitan, and workforce development area.
○ Age, sex, race, and ethnicity categories.
○ Business characteristics (
• LEHD Origin Destination Employment Statistics (LODES)—LODES data provide detailed spatial distributions of workers' employment and residential locations and the relation between the two at the Census Block level. LODES also provides characteristic detail on age, earnings, industry distributions, and other worker/business characteristics.
• Job-to-Job Flows (J2J)—Job-to-Job Flows (J2J) is a set of statistics on job mobility in the United States constructed by the LEHD program. J2J include statistics on: (1) The job-to-job transition rate, (2) hires and separations to and from employment, (3) earnings changes due to job change, and (4) characteristics of origin and destination jobs for job-to-job transitions. These statistics are available at the national, state, and metropolitan area levels and by worker and firm characteristics.
• Post-Secondary Employment Outcomes (PSEO)—Post-Secondary Employment Outcomes (PSEO) is an experimental set of statistics on the earnings and employment outcomes of graduates of select post-secondary institutions in the United States, and is constructed using data from LEHD. Earnings Outcomes reports earnings by institution, degree field, degree level and graduation cohort for 1, 5 and 10 years after graduation. Employment Flows tabulations provide the destination industry and geography of employment for graduates of an institution by degree level, degree field, and graduation cohort, for one, five, and 10 years after graduation. A limited number of institutions are available as part of the pilot release, but future updates will include additional post-secondary institutions.
These data products highlight state and local labor market dynamics that cannot be learned from other statistical sources and are therefore used in many different arenas. For example, the QWI can be used as local-labor-market controls in regression analysis; to identify long-term trends; to provide local context in performance evaluations; and for a host of other applications.
The collection of data occurs in accordance with the rules established by interagency agreements with the participating state partners or data sharing agreements that have been established within the Census Bureau. For state partners, their data is submitted directly to the Census secure servers where Personally Identifiable Information (PII) goes through a process to replace it with Protected Identification Keys (PIK). This PVS (Person Identification Validation System) process also applies to all other administrative data that are used in the LEHD infrastructure. For all other required administration data, they are transferred or referenced by the LEHD production system. Data collection and processing also includes activities such as validation of data quality.
LEHD's data products are not generated by a traditional survey. Rather, all input data required is collected electronically as follows:
• State Unemployment Insurance (UI) and Quarterly Census of Employment and Wages (QCEW) are provided via encrypted File Transfer Protocol (FTP) through which each state LMI agency sends these data directly to the Census Bureau. This transfer of data is governed by Memorandum of Understandings (MOUs) with each state partner.
• Federal and Census Administrative data are acquired from other directorates or divisions within the Census Bureau with which an internal agreement has been established for the use of the data.
• Public Use data sets are acquired from publicly available websites or public File Transfer Protocol (FTP) servers.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Institute of Standards and Technology (NIST), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before November 24, 2020.
Interested persons are invited to submit written comments by mail to Maureen O'Reilly, Management Analyst, NIST at
Requests for additional information or specific questions related to collection activities should be directed to Mary Clague, NIST SBIR Program Office, 301-975-4188,
The SBIR program was originally established in 1982 by the Small Business Innovation Development Act (Pub. L. 97-219), codified at 15 U.S.C. 638. It was then expanded and extended by the Small Business Research and Development (R&D) Enhancement Act of 1992 (Pub. L. 102-564) and received subsequent reauthorization and extensions that include Public Law 112-81, extending SBIR through September 30, 2022. The US Small Business Administration (SBA) serves as the coordinating agency for the SBIR program. It directs the agency implementation of SBIR, reviews progress, and reports annually to Congress on its operation.
The NIST SBIR Cover Sheet is the first page of each application that responds to the annual NIST SBIR Federal Funding Opportunity (FFO). The information collected in the Cover Sheet provides identifying information and demographic data for use in NIST's annual report to the SBA on the program.
The information will be collected as part of the application process and will be submitted through grants.gov.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Industry and Security, Office of Technology Evaluation, U.S. Department of Commerce.
Notice on reopening of comment period for previously published notice of request for public comments.
On June 3, 2020, the Bureau of Industry and Security (BIS) published the
The due date for filing comments is October 9, 2020.
Industrial Studies Division, Bureau of Industry and Security, U.S. Department of Commerce, (202) 482-5481,
On June 3, 2020, (85 FR 34179), the Bureau of Industry and Security (BIS) published the
The June 3 notice included a comment period deadline of July 20, 2020 and a rebuttal comment period deadline of August 17, 2020. The Department of Commerce has determined that it is warranted to reopen the comment period for fourteen days. While comments may be submitted at any time, today's notice specifies that comments must be received by October 9, 2020 to be considered in the drafting of the final report. Today's notice reopens the comment period for fourteen days to allow for additional time for the public to submit comments on the investigation of imports of vanadium pursuant to BIS posting the November 19, 2019 application for an investigation by U.S. Vanadium LLC and AMG Vanadium LLC and the April 2, 2020 supplemental information on
BIS has posted the application for an investigation into imports of vanadium under section 232, titled “Petition for Relief Under Section 232”, which was submitted by U.S. Vanadium LLC and AMG Vanadium LLC on November 19, 2019, on
BIS has confirmed with U.S. Vanadium LLC and AMG Vanadium LLC that all confidential information, including business proprietary information, has been properly redacted (as indicated by the presence of bracketing) from the public versions of the application and supplemental information posted on
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty (AD) order on polyester staple fiber from the Republic of Korea (Korea) for the period of review (POR) May 1, 2019, through April 30, 2020, based on the timely withdrawal of the requests for review.
Applicable May 1, 2020.
Jason Willoughby, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202-482-5509.
On May 1, 2020, Commerce published a notice of opportunity to request an administrative review of the AD order on polyester staple fiber from Korea for the POR of May 1, 2019, through April 30, 2020.
On July 10, 2020, pursuant to these requests, and in accordance with 19 CFR 351.221(c)(1)(i), Commerce initiated an administrative review of the AD order on polyester staple fiber from Korea.
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if a party that requested a review withdraws the request within 90 days of the publication date of the notice of initiation of the requested review. The petitioners and Huvis withdrew their requests within 90 days of the publication date of the notice of initiation. No other parties requested an administrative review of the order. Therefore, in accordance with 19 CFR 351.213(d)(1), we are rescinding the administrative review of the AD order on polyester staple fiber from Korea covering May 1, 2019, through April 30, 2020, in its entirety.
Commerce intends to instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of polyester staple fiber from Korea during the POR at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after the date of publication of this notice in the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to all parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Department of Commerce.
Notice; correction.
The United States Department of Commerce, International Trade Administration, published a document in the
April Redmon, U.S. Commercial Service, U.S. Department of Commerce, Tel: 703-235-0103, Email:
In the
Due to recent developments in the region, it has been determined that to allow for optimal execution of recruitment and event scheduling for the mission, the dates of the mission are modified from October 25-30, 2020 to March 7-12, 2021. As a result of the shift of the event dates the date of the application deadline is also revised from August 14, 2020 to January 8, 2021 (and after that date if space remains and scheduling constraints permit). Interested U.S. companies and trade associations/organizations that have not already applied are encouraged to do so. The U.S. Department of Commerce will review applications and make selection decisions on a rolling basis in accordance with the original Notice published at 85 FR 12259 (March 2, 2020). The applicants selected will be notified as soon as possible. The proposed schedule is updated as follows *:
*
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On July 2, 2020, the Department of Commerce (Commerce) published the preliminary results of the administrative review of the antidumping duty order on certain steel nails (steel nails) from the United Arab Emirates (UAE). The period of review (POR) is May 1, 2018 through April 30, 2019. For the final results of this review, we continue to find that Middle East Manufacturing Steel LLC (MEM) made sales of subject merchandise at less than normal value during the POR.
Applicable September 25, 2020.
Matthew Renkey, 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) 482-2312.
On July 2, 2020, Commerce published the
The merchandise covered by this order includes certain steel nails having a shaft length up to 12 inches. Certain steel nails include, but are not limited to, nails made of round wire and nails that are cut. Certain steel nails may be of one piece construction or constructed of two or more pieces. Certain steel nails may be produced from any type of steel, and have a variety of finishes, heads, shanks, point types, shaft lengths and shaft diameters. Finishes include, but are not limited to, coating in vinyl, zinc (galvanized, whether by electroplating or hot-dipping one or more times), phosphate cement, and paint. Head styles include, but are not limited to, flat, projection, cupped, oval, brad, headless, double, countersunk, and sinker. Shank styles include, but are not limited to, smooth, barbed, screw threaded, ring shank and fluted shank styles. Screw-threaded nails subject to this order are driven using direct force and not by turning the fastener using a tool that engages with the head. Point styles include, but are not limited to, diamond, blunt, needle, chisel and no point. Certain steel nails may be sold in bulk, or they may be collated into strips or coils using materials such as plastic, paper, or wire.
Certain steel nails subject to this order are currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7317.00.55, 7317.00.65, and 7317.00.75.
Excluded from the scope of this order are steel nails specifically enumerated and identified in ASTM Standard F 1667 (2011 revision) as Type I, Style 20 nails, whether collated or in bulk, and whether or not galvanized.
Also excluded from the scope of this order are the following products:
• Non-collated (
• non-collated (
• wire collated steel nails, in coils, having a galvanized finish, a smooth, barbed or ringed shank, an actual length of 0.500″ to 1.75″, inclusive; an actual shank diameter of 0.116″ to 0.166″, inclusive; and an actual head diameter of 0.3375″ to 0.500″, inclusive;
• non-collated (
• corrugated nails. A corrugated nail is made of a small strip of corrugated steel with sharp points on one side;
• thumb tacks, which are currently classified under HTSUS 7317.00.10.00;
• fasteners suitable for use in powder-actuated hand tools, not threaded and threaded, which are currently classified under HTSUS 7317.00.20 and 7317.00.30;
• certain steel nails that are equal to or less than 0.0720 inches in shank diameter, round or rectangular in cross section, between 0.375 inches and 2.5 inches in length, and that are collated with adhesive or polyester film tape backed with a heat seal adhesive; and
• fasteners having a case hardness greater than or equal to 50 HRC, a carbon content greater than or equal to 0.5 percent, a round head, a secondary reduced-diameter raised head section, a centered shank, and a smooth symmetrical point, suitable for use in gas-actuated hand tools.
While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive.
As a result of this administrative review, we determine that the following weighted-average dumping margin exists for the POR:
Pursuant to section 751(a)(2)(C) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.212(b), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. For MEM, because its weighted-average dumping margin is not zero or
For entries of subject merchandise during the POR produced by MEM for which it did not know its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company involved in the transaction. We intend to issue assessment instructions to CBP 15 days after the date of publication of the final results of review.
The following cash deposit requirements for estimated antidumping duties will be effective upon publication of the notice of final results of this review for all shipments of steel nails from the UAE entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2) of the Act of these final results: (1) The cash deposit rate for MEM will be 27.28 percent, the weighted-average dumping margin established in the final results of this administrative review; (2) for merchandise exported by companies not covered in this review but covered in a prior segment of this proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently-completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the producer is, then the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the subject merchandise; and (4) the cash deposit rate for all other producers or exporters will continue to be 4.30 percent, the all-others rate established in the investigation, adjusted for the export-subsidy rate in the companion countervailing duty investigation. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.
Commerce is issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.221(b)(5).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Equinor Wind, LLC (Equinor) to incidentally harass, by Level B harassment only, marine mammals during site characterization surveys off the coast in the Atlantic Ocean in the area of the Commercial Leases of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0520 and OCS-A 0512) and along potential submarine cable routes to a landfall location in Massachusetts, Rhode Island, Connecticut, New York or New Jersey.
This authorization is effective for one year from September 20, 2020 to September 19, 2021.
Rob Pauline, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.
On January 30, 2020, NMFS received a request from Equinor for an IHA to take marine mammals incidental to marine site characterization surveys in the Atlantic Ocean in the area of the Commercial Leases of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0520 and OCS-A 0512) and along potential submarine cable routes to a landfall location in Massachusetts, Rhode Island, Connecticut, New York or New Jersey. A revised application was received on March 31, 2020. NMFS deemed that request to be adequate and complete. On May 22, 2020 Equinor notified NMFS of a revision to their planned activities and submitted a revised IHA application reflecting the change. Equinor's request is for the take of 17 marine mammal stocks by Level B harassment only. Neither Equinor nor NMFS expects serious injury or mortality to result from this activity and the activity is expected to last no more than one year, therefore, an IHA is appropriate.
Equinor plans to conduct marine site characterization surveys, including high-resolution geophysical (HRG) and geotechnical surveys, in the area of Commercial Leases of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf OCS-A 0520 and OCS-A 0512 (Lease Areas) and along potential submarine cable routes offshore Massachusetts, Rhode Island, Connecticut, New York and New Jersey.
The purpose of the planned surveys is to support the preliminary site characterization, siting, and engineering design of offshore wind project facilities and submarine cables within the Lease Areas and in export cable route areas (ECRAs). As many as two survey vessels may operate concurrently as part of the planned surveys. Underwater sound resulting from Equinor's planned surveys has the potential to result in the incidental take of marine mammals in the form of behavioral harassment.
The HRG survey activities planned by Equinor are described in detail in the notice of proposed IHA (85 FR 37848; June 24, 2020). The HRG equipment planned for use is shown in Table 1.
As described above, a detailed description of the planned HRG surveys is provided in the
A notice of NMFS's proposal to issue an IHA to Equinor was published in the
NMFS does not expect that the proposed activities, including HRG surveys, cable-lay activities and offshore pile driving activities, have the potential to result in injury or mortality to marine mammals and therefore does not agree that a blanket requirement for project activities to cease would be warranted. While injury or mortality to marine mammals is possible due to vessel strike, NMFS does not agree that a requirement for a vessel that is operating on the open water to suddenly stop operating is practicable, and it is unclear what mitigation benefit would result from such a requirement in relation to vessel strike. The Commission does not suggest what measures other than those prescribed in this IHA would potentially prove more effective in reducing the risk of strike. Therefore, we have not included this requirement in the authorization. NMFS retains authority to modify the IHA and cease all activities immediately based on a vessel strike and will exercise that authority if warranted.
Additionally, regarding the recommendation to use abbreviated notices, we agree that they are a useful tool by which to increase efficiency in conjunction with the use of Renewals, but we disagree that their use alone would equally fulfill NMFS' goal to maximize efficiency and provide regulatory certainty for applicants, with no reduction in protections for marine mammals. The Renewal process, with its narrowly described qualifying actions, specific issuance criteria, and additional 15-day comment period, allows for NMFS to broadly commit to a 60-day processing time. This commitment, which would not be possible in the absence of this narrow definition and the 15-day additional comment period, provides both a meaningfully shortened processing time and regulatory certainty for planning purposes. Increasing the comment period for Renewals to 30 days would increase processing time by 25% and is unnecessary, given the legal sufficiency of the process as it stands, as described above, and no additional protections for marine mammals that would result. NMFS uses abbreviated notices when
As previously noted, we have found that the Renewal process is consistent with the statutory requirements of the MMPA and, further, promotes NMFS' goals of improving conservation of marine mammals and increasing efficiency in the MMPA compliance process. Therefore, we intend to continue implementing the Renewal process.
While there will be additional documents submitted with a Renewal request, for a qualifying Renewal these will be limited to documentation that NMFS will make available and use to verify that the activities are identical to those in the initial IHA, are nearly identical such that the changes would have either no effect on impacts to marine mammals or decrease those impacts, or are a subset of activities already analyzed and authorized but not completed under the initial IHA. NMFS will also confirm, among other things, that the activities will occur in the same location; involve the same species and stocks; provide for continuation of the same mitigation, monitoring, and reporting requirements; and that no new information has been received that would alter the prior analysis. The Renewal request will also contain a preliminary monitoring report, but that is to verify that effects from the activities do not indicate impacts of a scale or nature not previously analyzed. The additional 15-day public comment period provides the public an opportunity to review these few documents, provide any additional pertinent information and comment on whether they think the criteria for a Renewal have been met. Between the initial 30-day comment period on these same activities and the additional 15 days, the total comment period for a Renewal is 45 days.
NMFS has required applicants to observe seasonal restrictions when such actions are both warranted and practicable. NMFS issued an IHA to Vineyard Winds (85 FR 26940; May 6, 2020) for marine site characterization surveys off the southern New England coast. NMFS reviewed the best available North Atlantic right whale abundance data for the planned survey area (Roberts
Vineyard Wind planned to operate up to nine survey vessels concurrently but they must limit to three the number of survey vessels that will operate concurrently from March through June within the lease areas (OCS-A 0501 and 0487) and OECC areas north of the lease areas up to, but not including, coastal and bay waters. An additional seasonal restriction area was defined south of Nantucket and is effect from December to February in the area. The seasonal restrictions described above will help to reduce both the number and intensity of North Atlantic right whale takes. NMFS was concerned that operating more than three vessels concurrently within a relatively small area could negatively impact North Atlantic right whales. Given the elevated concentrations of North Atlantic right whales in the delineated areas, NMFS determined that seasonal restrictions were warranted. NMFS also worked with Vineyard Wind to ensure that the measures were practicable.
Additionally, since Equinor's PSOs will be on duty only during daylight operations night vision equipment is not required. This is standard practice during HRG surveys and is discussed in greater detail below.
NOAA Fisheries recently published “Technical Memorandum NMFS‐OPR‐64: North Atlantic Right Whale Monitoring and Surveillance: Report and Recommendations of the National Marine Fisheries Service's Expert Working Group” which is available at:
(i) NMFS acknowledges that the 160-dB rms step-function approach is simplistic, and that an approach reflecting a more complex probabilistic function may more effectively represent the known variation in responses at different levels due to differences in the receivers, the context of the exposure, and other factors. The commenters suggested that our use of the 160-dB threshold implies that we do not recognize the science indicating that animals may react in ways constituting behavioral harassment when exposed to lower received levels. However, we do recognize the potential for Level B harassment at exposures to received levels below 160 dB rms, in addition to the potential that animals exposed to received levels above 160 dB rms will not respond in ways constituting behavioral harassment (
As behavioral responses to sound depend on the context in which an animal receives the sound, including the animal's behavioral mode when it hears sounds, prior experience, additional biological factors, and other contextual factors, defining sound levels that disrupt behavioral patterns is extremely difficult. Even experts have not previously been able to suggest specific new criteria due to these difficulties (
(ii) The ENGOS disagreed with NMFS' assumption that marine mammals move away from sound sources. The ENGOS claimed that studies have not found avoidance behavior to be generalizable among species and contexts, and even though avoidance may itself constitute take under the MMPA. Importantly, the commenters mistakenly seem to believe that the NMFS' does not consider avoidance as a take, and that the concept of avoidance is used as a mechanism to reduce overall take—this is not the case. Avoidance of loud sounds is a well-documented behavioral response, and NMFS often accordingly accounts for this avoidance by reducing the number of injurious exposures, which would occur in very close proximity to the source and necessitate a longer duration of exposure. However, when Level A harassment takes are reduced in this manner, they are changed to Level B harassment takes, in recognition of the fact that this avoidance or other behavioral responses occurring as a result of these exposures are still take, NMFS does not reduce the overall amount of take as a result of avoidance.
(iii) The ENGOs questioned the effectiveness of the mitigation and monitoring measures proposed to be authorized. They specifically recommended that seasonal restrictions should be established and consideration should be given to species for which an unusual mortality event (UME) has been declared. Note that NMFS is requiring Equinor to comply with restrictions associated with identified seasonal management areas (SMA) and they must comply with dynamic management area restrictions (DMAs), if any DMAs are established near the Project Area. Furthermore, we have established a 500-m shutdown zone for North Atlantic right whales which is three times as large as the greatest Level B harassment isopleth calculated for the specified activities for this IHA (141 m). Additionally, similar mitigation and monitoring measures have previously been required in numerous HRG survey IHAs and have been successfully implemented.
NMFS has included User Spreadsheet inputs in Table 4 that were used to determine Level A harassment isopleths. Table 5 was revised to illustrate Level A harassment isopleths based on inputs from Table 4. NMFS has added language to the Mitigation section exempting harbor and gray seals from shutdown if they approach the survey vessel or towed survey equipment. This language is identical to that found in another recent HRG IHA issued in July, 2020 to Mayflower Wind Energy, LLC. (85 FR 45578; July 29, 2020). The
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs;
Table 2 lists all species or stocks for which take is expected and authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2020). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Atlantic SARs. All values presented in Table 2 are the most recent available at the time of publication and are available in the 2019 Atlantic and Gulf of Mexico Marine Mammal Stock Assessments (Hayes
A detailed description of the species for which take has been authorized, including brief introductions to the relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
The effects of underwater noise from Equinor's survey activities have the potential to result in take of marine mammals by harassment in the vicinity of the survey area. The
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance,
Authorized takes would be by Level B harassment only in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to HRG sources. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (
As described previously, no injury or mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
These thresholds are provided in Table 3 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
The planned survey would entail the use of HRG equipment. The distance to the isopleth corresponding to the threshold for Level B harassment was calculated for all HRG equipment with the potential to result in harassment of
If only peak source sound pressure level (
In order to account for the greater absorption of higher frequency sources, we recommend applying 20 log(r) with an absorption term
While the calculation of absorption coefficient varies with frequency, temperature, salinity, and pH, the largest factor driving the absorption coefficient is frequency. A simple formula to approximate the absorption coefficient (neglecting temperature, salinity, and pH) is provided by Richardson
(3) α ≉ 0.036ƒ
Further, if the beamwidth is less than 180° and the angle of beam axis in respect to sea surface is known, the horizontal impact distance
The interim methodology described above was used to estimate isopleth distances to the Level B harassment threshold for the planned HRG survey. NMFS considers the data provided by Crocker and Fratantonio (2016) to represent the best available information on source levels associated with HRG equipment and therefore recommends that source levels provided by Crocker and Fratantonio (2016) be incorporated in the method described above to estimate isopleth distances to the Level B harassment threshold. In cases when the source level for a specific type of HRG equipment is not provided in Crocker and Fratantonio (2016), NMFS recommends that either the source levels provided by the manufacturer be used, or, in instances where source levels provided by the manufacturer are unavailable or unreliable, a proxy from Crocker and Fratantonio (2016) be used instead. Table 1 shows the HRG equipment types that may be used during the planned vessel-based surveys that may result in take of marine mammals, and the sound levels associated with those HRG equipment types.
Results of modeling using the methodology described above indicated that, of the HRG survey equipment planned for use by Equinor that has the potential to result in harassment of marine mammals, sound produced by the GeoSource 800 J sparker would propagate furthest to the Level B harassment threshold (Table 4); therefore, for the purposes of the exposure analysis, it was assumed the GeoSource 800 J would be active during the entirety of the survey. Thus, the distance to the isopleth corresponding to the threshold for Level B harassment for the GeoSource 800 J (estimated at 141 m; Table 5) was used as the basis of the take calculation for all marine mammals. We note that this is a conservative assumption as there may be times during the planned surveys when the GeoSource 800 J is not operated (Table 5).
Predicted distances to Level A harassment isopleths, which vary based on marine mammal functional hearing groups (Table 5), were also calculated, though it is important to note that NMFS does not believe that occurrence of Level A harassment is a realistic outcome of use of these sources. The updated acoustic thresholds for impulsive sounds (such as are produced by sparkers) contained in the Technical Guidance (NMFS, 2018) were presented as dual metric acoustic thresholds using both cumulative sound exposure level (SEL
Modeled distances to isopleths corresponding to the Level A harassment thresholds are very small (<8.4 m) for all marine mammal species and stocks that may be impacted by the planned activities (Table 5). Based on the very small Level A harassment zones for all marine mammal species and stocks that may be impacted by the planned activities, the potential for any marine mammals to be taken by Level A harassment is considered so low as to be discountable. As NMFS has determined that the likelihood of take in the form of Level A harassment of any marine mammals as a result of the planned surveys is so low as to be discountable, we therefore do not propose to authorize the take by Level A harassment of any marine mammals.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
The habitat-based density models produced by the Duke University Marine Geospatial Ecology Laboratory (MGEL) (Roberts
For the exposure analysis, density data from the Duke University MGEL (Roberts
Here we describe how the information provided above is brought together to produce a quantitative take estimate.
In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in harassment, radial distances to predicted isopleths corresponding to harassment thresholds are calculated, as described above. Those distances are then used to calculate the area(s) around the HRG survey equipment predicted to be ensonified to sound levels that exceed harassment thresholds. The area estimated to be ensonified to relevant thresholds in a single day is then calculated, based on areas predicted to be ensonified around the HRG survey equipment and the estimated trackline distance traveled per day by the survey vessel.
Equinor estimates that planned surveys will achieve a maximum daily track line distance of 177.6 km (110.3 mi) per day during planned HRG surveys. We note that this is a conservative estimate as it accounts for the vessel traveling at approximately 4 knots and accounts for non-active survey periods (
The number of marine mammals expected to be incidentally taken per day is then calculated by estimating the number of each species predicted to occur within the daily ensonified area (animals/km
In this case, the methodology described above was used to estimate marine mammal exposures separately in the four ECRAs. Thus, exposures were calculated separately for each of the four individual ECRAs based on estimated survey duration in each ECRA and using the maximum seasonal density estimates for each respective ECRA (Table 7).
Note that after the Notice of Proposed IHA was published (June 24, 2020; 85 FR 36537) a new North Atlantic right whale density model became available to the public (Roberts
Exposure estimates for the four survey areas as shown in Table 6 and Table 7 were combined for a total estimated number of exposures (Table 8).
As described above, the Duke University MGEL produced density models that did not differentiate by seal species. The underlying data in the Duke University MGEL seal models came almost entirely from AMAPPS aerial surveys which were unable to differentiate by seal species, with the majority of seal sightings reported as “unidentified seal” (Roberts
The density models produced by the Duke University MGEL also did not differentiate by bottlenose dolphin stocks (Roberts
Equinor requested 39 total takes of pilot whales (either long-finned or short-finned). However, the range of short-finned pilot whales does not extend north of Delaware (Hayes
As described above, NMFS has determined that the likelihood of take of any marine mammals in the form of Level A harassment occurring as a result of the planned surveys is so low as to be discountable; therefore, we do not propose to authorize take of any marine mammals by Level A harassment.
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as proposed), the likelihood of effective implementation (probability implemented as proposed), and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
NMFS proposes the following mitigation measures be implemented during Equinor's planned marine site characterization surveys.
Marine mammal EZs would be established around the HRG survey equipment and monitored by PSOs during HRG surveys as follows:
• A 500-m EZ is required for North Atlantic right whales; and
• A 100-m EZ is required for all other marine mammal species.
If a marine mammal is detected approaching or entering the EZs during the planned survey, the vessel operator must adhere to the shutdown procedures described below. In addition to the EZs described above, PSOs must visually monitor a 200 m Buffer Zone. During use of acoustic sources with the potential to result in marine mammal harassment (
A minimum of one NMFS-approved PSO must be on duty and conducting visual observations at all times during daylight hours (
Prior to initiating HRG survey activities, Equinor must implement a 30-minute pre-clearance period. During pre-clearance monitoring (
If a marine mammal were observed within the relevant EZs or Buffer Zone during the pre-clearance period, initiation of HRG survey equipment must not begin until the animal(s) has been observed exiting the respective EZ or Buffer Zone, or, until an additional time period has elapsed with no further sighting (
When technically feasible, a ramp-up procedure must be used for geophysical survey equipment capable of adjusting energy levels at the start or re-start of survey activities. The ramp-up procedure must be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the survey area by allowing them to detect the presence of the survey and vacate the area prior to the commencement of survey equipment operation at full power. Ramp-up of the survey equipment must not begin until the relevant EZs and Buffer Zone has been cleared by the PSOs, as described above. HRG equipment must be initiated at their lowest power output and must be incrementally increased to full power. If any marine mammals are detected within the EZs or Buffer Zone prior to or during ramp-up, the HRG equipment must be shut down (as described below).
The shutdown procedures described below are only in effect when the GeoSource 800 J sparker is being operated. If an HRG source is active and a marine mammal is observed within or entering a relevant EZ (as described above) an immediate shutdown of the HRG survey equipment is required. When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dispute resolved only following deactivation. Any PSO on duty must have the authority to delay the start of survey operations or to call for shutdown of the acoustic source if a marine mammal is detected within the applicable EZ. The vessel operator must establish and maintain clear lines of communication directly between PSOs on duty and crew controlling the HRG source(s) to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch. Subsequent restart of the HRG equipment must only occur after the marine mammal has either been observed exiting the relevant EZ, or, until an additional time period has elapsed with no further sighting of the animal within the relevant EZ (
Upon implementation of shutdown, the HRG source may be reactivated after the marine mammal that triggered the shutdown has been observed exiting the applicable EZ (
The shutdown requirement is waived for certain genera of small delphinids (
If a species for which authorization has not been granted, or, a species for which authorization has been granted but the authorized number of takes have been met, approaches or is observed within the area encompassing the Level B harassment isopleth while the sparker is operating (141 m), shutdown must occur.
To minimize the potential for impacts to North Atlantic right whales, vessel-based HRG survey activities would be prohibited in the Off Race Point SMA and Cape Cod Bay SMA from January through May and in the Great South Channel SMA from April through July.
• Vessel strike avoidance measures would include, but would not be limited to, the following: Vessel operators and crews must maintain a vigilant watch for all protected species and slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any protected species. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel (distances stated below). Visual observers monitoring the vessel strike avoidance zone may be third-party observers (
• All survey vessels, regardless of size, must observe a 10-knot speed restriction in specific areas designated by NMFS for the protection of North Atlantic right whales from vessel strikes: Any Dynamic Management Areas (DMAs) when in effect, and the Off Race Point SMA (in effect from January 1 through May 15), Cape Cod Bay SMA (in effect from March 1 through April 30), Great South Channel SMA (in effect from April 1 through July 31), Block Island Sound SMA (in effect from November 1 through April 30); and New York/New Jersey SMA (in effect from November 1 through April 30). See
• Vessel speeds must also be reduced to 10 knots or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel.
• All vessels must maintain a minimum separation distance of 500 m from North Atlantic right whales. If a whale is observed but cannot be confirmed as a species other than a
• All vessels must maintain a minimum separation distance of 100 m from sperm whales and all other baleen whales.
• All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other protected species, with an understanding that at times this may not be possible (
• When protected species are sighted while a vessel is underway, the vessel must take action as necessary to avoid violating the relevant separation distance (
These requirements do not apply in any case where compliance would create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply.
As described above, the planned survey area partially overlaps with a portion of five North Atlantic right whale SMAs: Off Race Point SMA (in effect from January 1 through May 15); Cape Cod Bay SMA (in effect from March 1 through April 30); Great South Channel SMA (in effect from April 1 through July 31); Block Island Sound SMA (in effect from November 1 through April 30); and New York/New Jersey SMA (in effect from November 1 through April 30). All Equinor survey vessels, regardless of length, are required to adhere to vessel speed restrictions (<10 knots) when operating within the SMAs during times when the SMAs are in effect. In addition, between watch shifts, members of the monitoring team must consult NMFS's North Atlantic right whale reporting systems for the presence of North Atlantic right whales throughout survey operations. Members of the monitoring team must also monitor the NMFS North Atlantic right whale reporting systems for the establishment of DMA. If NMFS should establish a DMA in the survey area while surveys are underway, Equinor is required to contact NMFS within 24 hours of the establishment of the DMA to determine whether alteration or restriction of survey activities was warranted within the DMA to minimize impacts to North Atlantic right whales.
Also as described above, portions of the planned survey areas overlap spatially with designated critical habitat for North Atlantic right whales, which was established due to the area's significance for North Atlantic right whale foraging (81 FR 4837, January 27, 2016). To minimize potential impacts to North Atlantic right whales during the seasons when they occur in high numbers in the Gulf of Maine/Georges Bank critical habitat, vessel-based HRG survey activities are prohibited in the Off Race Point SMA and Cape Cod Bay SMA from January through May and in the Great South Channel SMA from April through July.
The required mitigation measures are designed to avoid the already low potential for injury in addition to some instances of Level B harassment, and to minimize the potential for vessel strikes. Further, we believe the required mitigation measures are practicable for the applicant to implement.
There are no known marine mammal rookeries or mating or calving grounds in the survey area that would otherwise potentially warrant increased mitigation measures for marine mammals or their habitat (or both). The planned survey areas will overlap spatially with an area that has been identified as a biologically important area for migration for North Atlantic right whales. However, while the potential survey areas across the ECRAs are relatively large, the actual areas that will ultimately be surveyed are relatively small compared to the substantially larger spatial extent of the North Atlantic right whale migratory area. We have required mitigation measures, including seasonal restrictions and vessel speed restrictions as described above, to minimize potential impacts to North Atlantic right whale migration. Thus, the survey is not expected to appreciably reduce migratory habitat nor to negatively impact the migration of North Atlantic right whales. As described above, some portions of the planned survey areas will overlap spatially with areas that are recognized as important for North Atlantic right whale foraging, including portions of areas that have been designated as critical habitat due to the significance of the area for North Atlantic right whale foraging. We have required mitigation measures, including seasonal restrictions and vessel speed restrictions as described above, to minimize potential impacts to North Atlantic right whale foraging. Thus, the survey is not expected to appreciably reduce foraging habitat nor to negatively impact North Atlantic right whales foraging.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has determined that the required mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the planned action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
As described above, visual monitoring must be performed by qualified and NMFS-approved PSOs. Equinor must use independent, dedicated, trained PSOs, meaning that the PSOs must be employed by a third-party observer provider (with limited exceptions made only for inshore vessels), must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and must have successfully completed an approved PSO training course appropriate for their designated task. Equinor must provide resumes of all proposed PSOs (including alternates) to NMFS for review and approval prior to the start of survey operations.
During survey operations (
PSOs must be equipped with binoculars and have the ability to estimate distances to observed marine mammals. Reticulated binoculars will be available to PSOs for use as appropriate based on conditions and visibility to support the monitoring of marine mammals. Position data must be recorded using hand-held or vessel GPS units for each sighting. Observations must take place from the highest available vantage point on the survey vessel. General 360-degree scanning must occur during the monitoring periods, and target scanning by the PSO must occur when alerted of a marine mammal presence.
During good conditions (
Data on all PSO observations must be recorded based on standard PSO collection requirements. This include dates, times, and locations of survey operations; dates and times of observations, location and weather; details of marine mammal sightings (
Within 90 days after completion of survey activities, a final technical report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, summarizes the number of marine mammals estimated to have been taken during survey activities (by species, when known), (
In addition to the final technical report, Equinor will provide the reports described below as necessary during survey activities. In the event that personnel involved in the survey activities covered by the authorization discover an injured or dead marine mammal, Equinor must report the incident to the NOAA Fisheries OPR (301-427-8401), and to the NOAA Fisheries New England/Mid-Atlantic Regional Stranding Coordinator (978-282-8478) as soon as feasible. The report must include the following information:
• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
• Species identification (if known) or description of the animal(s) involved;
• Condition of the animal(s) (including carcass condition if the animal is dead);
• Observed behaviors of the animal(s), if alive;
• If available, photographs or video footage of the animal(s); and
• General circumstances under which the animal was discovered.
In the event of a vessel strike of a marine mammal by any vessel involved in the activities covered by the authorization, the Equinor must report the incident to NOAA Fisheries OPR (301-427-8401) and to the NOAA Fisheries New England/Mid-Atlantic Regional Stranding Coordinator (978-282-8478) as soon as feasible. The report must include the following information:
• Time, date, and location (latitude/longitude) of the incident;
• Species identification (if known) or description of the animal(s) involved;
• Vessel's speed during and leading up to the incident;
• Vessel's course/heading and what operations were being conducted (if applicable);
• Status of all sound sources in use;
• Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
• Environmental conditions (
• Estimated size and length of animal that was struck;
• Description of the behavior of the marine mammal immediately preceding and following the strike;
• If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
• Estimated fate of the animal (
• To the extent practicable, photographs or video footage of the animal(s).
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, our analysis applies to all the species listed in Table 7, given that NMFS expects the anticipated effects of the planned survey to be similar in nature. To be conservative, our analyses assume that a total of 808 exposures above the Level B harassment threshold could accrue to all of the potentially impacted seal species (
NMFS does not anticipate that serious injury or mortality would occur as a result of Equinor's planned survey, even in the absence of mitigation, thus the authorization does not authorize any serious injury or mortality. As discussed in the Potential Effects of Specified Activities on Marine Mammals and their Habitat section, non-auditory physical effects and vessel strike are not expected to occur. Additionally and as discussed previously, given the nature of activity and sounds sources used and especially in consideration of the required mitigation, Level A harassment is neither anticipated nor authorized. We expect that all potential takes would be in the form of short-term Level B behavioral harassment in the form of temporary avoidance of the area, reactions that are considered to be of low severity and with no lasting biological consequences (
Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring). Most likely, individuals will simply move away from the sound source and temporarily avoid the area where the survey is occurring. We expect that any avoidance of the survey area by marine mammals would be temporary in nature and that any marine mammals that avoid the survey area during the survey activities would not be permanently displaced. Even repeated Level B harassment of some small subset of an overall stock is unlikely to result in any significant realized decrease in viability for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Instances of more severe behavioral harassment are expected to be minimized by required mitigation and monitoring measures.
In addition to being temporary and short in overall duration, the acoustic footprint of the planned survey is small relative to the overall distribution of the animals in the area and their use of the area. Feeding behavior is not likely to be significantly impacted. Prey species are mobile and are broadly distributed throughout the project area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance and the availability of similar habitat and resources in the surrounding area, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
There are no rookeries, mating or calving grounds known to be biologically important to marine mammals within the planned survey area. As described above, the planned survey areas overlap spatially with a biologically important migratory area for North Atlantic right whales (effective March-April and November-December) that extends from Massachusetts to Florida (LaBrecque,
As described above, North Atlantic right, humpback, and minke whales, and gray, harbor and harp seals are experiencing ongoing UMEs. For North Atlantic right whales, as described above, no injury as a result of the planned project is expected or authorization, and Level B harassment takes of North Atlantic right whales are expected to be in the form of avoidance of the immediate area of the planned survey. In addition, the number of takes authorized above the Level B harassment threshold are relatively low (
Similarly, no injury or mortality is expected or authorized for any of the other species with UMEs, Level B harassment will be reduced to the level of least practicable adverse impact through use of required mitigation measures, and the authorized takes would not exacerbate or compound the ongoing UMEs. For minke whales, although the ongoing UME is under investigation (as occurs for all UMEs), this event does not provide cause for concern regarding population level impacts, as the likely population abundance is greater than 20,000 whales and annual M/SI does not exceed the calculated PBR value for minke whales. With regard to humpback whales, the UME does not yet provide cause for concern regarding population-level impacts. Despite the UME, the relevant population of humpback whales (the West Indies breeding population, or DPS) remains healthy. The West Indies DPS, which consists of the whales whose breeding range includes the Atlantic margin of the Antilles from Cuba to northern Venezuela, and whose feeding range primarily includes the Gulf of Maine, eastern Canada, and western Greenland is not listed under the ESA. The status review identified harmful algal blooms, vessel collisions, and fishing gear entanglements as relevant threats for this DPS, but noted that all other threats are considered likely to have no or minor impact on population size or the growth rate of this DPS (Bettridge
The required mitigation measures are expected to reduce the number and/or severity of takes by (1) giving animals the opportunity to move away from the sound source before HRG survey equipment reaches full energy; (2) preventing animals from being exposed to sound levels that may otherwise result in injury or more severe behavioral responses. Additional vessel strike avoidance requirements will further mitigate potential impacts to marine mammals during vessel transit to and within the survey area.
NMFS concludes that exposures to marine mammal species and stocks due to Equinor's planned survey would result in only short-term (temporary and short in duration) effects to individuals exposed. Marine mammals may temporarily avoid the immediate area, but are not expected to permanently abandon the area. Major shifts in habitat use, distribution, or foraging success are not expected. NMFS does not anticipate the authorized take estimates to impact annual rates of recruitment or survival.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality, serious injury, or Level A harassment is anticipated or authorized;
• The anticipated impacts of the planned activity on marine mammals would primarily be in the form of temporary behavioral changes due to avoidance of the area around the survey vessel;
• The availability of alternate areas of similar habitat value (for foraging and migration) for marine mammals that may temporarily vacate the survey areas during the planned surveys to avoid exposure to sounds from the activity;
• The planned project area does not contain known areas of significance for mating or calving;
• Effects on species that serve as prey species for marine mammals from the planned survey would be minor and temporary and would not be expected to reduce the availability of prey or to affect marine mammal feeding;
• The required mitigation measures, including visual monitoring, exclusion zones, and shutdown measures, are expected to minimize potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the required monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
We propose to authorize incidental take of 17 marine mammal stocks. The total amount of taking authorized is less than one third for all stocks (Table 7), which we find are small numbers of marine mammals relative to the estimated overall population abundances for those stocks. To be conservative, our small numbers analysis assumes a total of 808 exposures above the Level B harassment threshold could accrue to any of the potentially impacted seal species (
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
We requested initiation of consultation under section 7 of the ESA with NMFS GARFO for the issuance of this IHA. On July 30, 2020, NMFS GARFO determined our issuance of the IHA to Equinor was not likely to adversely affect the North Atlantic right, fin, sei, and sperm whale or the critical habitat of any ESA-listed species or result in take under the ESA.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review.
NMFS has issued an IHA to Equinor for the potential harassment of small numbers of 17 marine mammal stocks incidental to the conducting marine site characterization surveys off the coast of Massachusetts, Rhode Island, Connecticut, New York or New Jersey in the area of the Commercial Leases of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0520 and OCS-A 0512) and along potential submarine cable routes to a landfall locations.
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Information and Regulatory Affairs (OIRA), of the Office of Management and Budget (OMB), for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before October 26, 2020.
Written comments and recommendations for the proposed information collection should be submitted within 30 days of this notice's publication to OIRA, at
In addition to the submission of comments to
Or by either of the following methods:
•
•
All comments must be submitted in English, or if not, accompanied by an English translation. Comments submitted to the Commission should include only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
Mark Bretscher, Special Counsel, Division of Swap Dealers and Intermediary Oversight, Commodity Futures Trading Commission, (312) 596-0529; email:
Section 22.2(g) requires each FCM with Cleared Swaps Customer Accounts to compute daily the amount of Cleared Swaps Customer Collateral on deposit in Cleared Swaps Customer Accounts, the amount of such collateral required to be on deposit in such accounts and the amount of the FCM's residual financial interest in such accounts. The purpose of this collection of information is to help ensure that FCMs' Cleared Swaps Customer Accounts are in compliance at all times with statutory and regulatory requirements for such accounts.
Section 22.5(a) requires an FCM or DCO to obtain, from each depository with which it deposits cleared swaps customer funds, a letter acknowledging that such funds belong to the Cleared Swaps Customers of the FCM, and not the FCM itself or any other person. The purpose of this collection of information is to confirm that the depository understands its responsibilities with respect to protection of cleared swaps customer funds.
Section 22.11 requires each FCM that intermediates cleared swaps for customers on or subject to the rules of a DCO, whether directly as a clearing member or indirectly through a Collecting FCM, to provide the DCO with information sufficient to identify each customer of the FCM whose swaps are cleared by the FCM. Section 22.11 also requires the FCM, at least once daily, to provide the DCO with information sufficient to identify each customer's portfolio of rights and obligations arising out of cleared swaps intermediated by the FCM. The purpose of this collection of information is to facilitate risk management by DCOs in the event of default by the FCM, to enable DCOs to perform their duty, pursuant to section 22.15, to treat the collateral attributed to each customer of the FCM on an individual basis.
Section 22.12 requires that each DCO and FCM, on a daily basis, calculate, based on information received pursuant to section 22.11 and on information generated and used in the ordinary course of business by the DCO or FCM, and record certain information about the amount of collateral required for each Cleared Swaps Customer and the sum of these amounts. As with section 22.11, the purpose of this collection of information is to facilitate risk management by DCOs and in the event of default by the FCM, to enable DCOs to perform their duty, pursuant to section 22.15, to treat the collateral attributed to each customer of the FCM on an individual basis.
Section 22.16 requires that each FCM who has Cleared Swaps Customers disclose to each of such customers the governing provisions, as established by DCO rules or customer agreements between collecting and depositing FCMs, relating to use of customer collateral, transfer, neutralization of the risks, or liquidation of cleared swaps in the event of a default by a Depositing FCM relating to a Cleared Swaps Customer Account. The purpose of this collection of information is to ensure that Cleared Swaps Customers are informed of the procedures to which accounts containing their swaps collateral may be subject in the event of a default by their FCM.
Section 22.17 requires that each FCM produce a written notice of the reasons and the details concerning withdrawals from a Cleared Swaps Customers Account not for the benefit of Cleared Swap Customers if such withdrawal will exceed 25% of the FCMs residual interest in such account.
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. On July 17, 2020, the Commission published in the
Section 22.5(a)—Once.
Section 22.11—Daily.
Section 22.12—Daily.
Section 22.16—Once.
Section 22.17—On occasion.
44 U.S.C. 3501
U.S. International Development Finance Corporation (DFC).
Notice of Information Collection; Emergency Clearance.
The U.S. International Development Finance Corporation (DFC) is submitting a request to the Office of Management and Budget (OMB) for emergency review and clearance of a new information collection request under the Paperwork Reduction Act of 1995.
DFC intends to begin use of this collection immediately.
Requests for copies of the subject information collection may be sent by any of the following methods:
•
•
Agency Submitting Officer: Joanna Reynolds, (202) 357-3979.
In accordance with the Paperwork Reduction Act (PRA), the U.S. International Development Finance Corporation (DFC) is seeking emergency clearance from OMB on a new information collection titled DFC-016, DFC-Serbia—Kosovo Screening Tool.
Department of the Air Force, Department of Defense.
Notice of intent.
The United States Air Force (Air Force) is issuing this Notice of Intent (NOI) to advise the public of its intent to prepare an Environmental Impact Statement (EIS) to evaluate potential impacts on the human and natural environments of deploying the Ground Based Strategic Deterrent (GBSD) intercontinental ballistic missile (ICBM) system and decommissioning and disposing of the Minuteman III ICBM system. The Air Force invites public participation in the scoping process to determine the scope and significant issues to be analyzed in depth in the EIS and eliminate issues which are not significant.
A public scoping period of 45-days will take place starting from the date of this NOI publication in the
Given the complexity and the scope of this proposal, the Air Force anticipates the environmental analysis to extend past two years for completion and has received senior agency official approval.
For GBSD deployment EIS inquiries or requests for printed or digital copies of the scoping materials, please contact Capt Christina Camp, phone: (318) 456-6519, or request materials by email:
The purpose of the proposed action is to replace all ground based Minuteman III weapons systems within the continental United States with the GBSD system. The proposed action is needed to meet national security requirements and to comply with the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232 § 1663, 132 Stat. 2153), which directs the Air Force to develop and implement a strategy “to accelerate the development, procurement, and fielding of the ground-based strategic deterrent program.” The scope of the deployment activities would include replacing all ground based Minuteman III ICBMs in the United States, including motors, interstages, and missile guidance sets, with the GBSD weapon system, a technologically advanced ICBM system. All launch facilities, communication systems, infrastructure, and technologies would be modernized and replaced as necessary to support the GBSD system.
The Secretary of the Air Force announced that the GBSD deployment will take place at three sequenced Operational Locations 1-3 (“Ops 1-3”), with the scope of each Ops location occurring both on-base and in the associated missile fields. The Ops locations are the alternatives being consider in the EIS. Each location is the preferred alternative for its respective sequenced order, and includes Francis E. Warren Air Force Base (AFB) WY (Ops-1); Malmstrom AFB, MT (Ops-2); and Minot AFB, ND (Ops-3). The additional maintenance, training, storage, testing, support, decommissioning, and disposal actions would occur at Hill AFB, UT; the Utah Test and Training Range (UTTR), UT; Camp Guernsey, WY; and Camp Navajo, AZ.
The EIS may consider alternatives that include deploying the GBSD system in phases. The Proposed Action would not include generating or disposing of nuclear material, and the number of ground based nuclear missiles would remain unchanged. Deployment of the GBSD system would begin in the mid-2020s, extending the capabilities of the ground-based leg of the U.S. nuclear triad through at least 2075.
The EIS will analyze facility construction, modification, and operations at and around Francis E. Warren AFB and Camp Guernsey, Malmstrom AFB, Minot AFB, Hill AFB and UTTR, and Camp Navajo. During the transition from Minuteman III to GBSD, the two weapon systems would be partially operated and maintained concurrently for several years; therefore, the EIS also will analyze the overlapping actions and resulting impacts of conducting aspects of the programs in parallel. The EIS will also analyze the No Action Alternative which will also be fully considered. It serves as the baseline against which to compare the Proposed Action. Under the No Action Alternative, the Air Force would continue to maintain and operate the Minuteman III weapon system in its current configuration and the GBSD system would not be deployed. Expected environmental impacts are assumed to result from ground disturbing activities associated with construction of the GBSD system. It is anticipated that these environmental impacts, will be mitigated to the extent practical or avoided where possible. Further, the Air Force will pursue all required Federal and State permits, licenses, and other authorizations during the course of this EIS process, including but not limited to consultations under the National Historic Preservation Act of 1966 (54 U.S.C. 300101
The scoping process allows and invites early and meaningful participation by the public and is used to define the full range of issues and concerns to be evaluated in the EIS. As such, the Air Force is soliciting scoping comments and/or identification of
Office of General Counsel, Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change of a currently approved collection.
Interested persons are invited to submit comments on or before October 26, 2020.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact Jack Cox, 202-453-6314.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Postsecondary Education, Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change of a currently approved collection.
Interested persons are invited to submit comments on or before October 26, 2020.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact Gaby Watts, 202-453-7195.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of
This information collection request (ICR) includes the certifications, and in some cases additional data, that IHEs must submit to request funds allocated under Sections 18004(a)(2) and 18004(a)(3) of the CARES Act. This ICR was previously approved as an emergency clearance in order to comply with the requirements of the CARES Act and expedite the release of funds to IHEs and students with pressing financial needs due to the pandemic.
Office of Postsecondary Education, Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change of a currently approved collection.
Interested persons are invited to submit comments on or before October 26, 2020.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact Gaby Watts, 202-453-7195.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
This information collection request was previously approved as an emergency clearance in order to comply with the requirements of the CARES Act and expedite the release of funds to IHEs and students with pressing financial needs due to the pandemic. The Department of Education is now requesting an extension of that emergency clearance under normal clearance procedures.
Office of Elementary and Secondary Education, Department of Education (ED).
Notice
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of a currently approved collection.
Interested persons are invited to submit comments on or before October 26, 2020.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact Christopher Tate, 202-453-6047.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Electricity, Department of Energy.
Notice and request for comments.
The Department of Energy (DOE) invites public comment on a proposed extension of a collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995.
Comments regarding this proposed information collection extension must be received on or before November 24, 2020. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Comments may be sent to Christopher A. Lawrence, Transmission Permitting and Technical Assistance, Office of Electricity, U.S. Department of Energy, Washington, DC,
Requests for additional information or copies of the information collection instrument and instructions should be directed to Christopher A. Lawrence, at
This information collection request contains: (1)
This document of the Department of Energy was signed on September 18, 2020, by Bruce J. Walker, Assistant Secretary, Office of Electricity, 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
Office of Electricity, Department of Energy.
Notice of application.
Vitol Inc. (Applicant or Vitol) has applied for authorization to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before October 26, 2020.
Comments, protests, motions to intervene, or requests for more information should be addressed by electronic mail to
The Department of Energy (DOE) regulates exports of electricity from the United States to a foreign country, pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b) and 42 U.S.C. 7172(f)). Such exports require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On August 25, 2020, Vitol filed an application with DOE (Application or App.) to transmit electric energy from the United States to Canada for a term of five years. Vitol states that it “is a Delaware corporation with its principal place of business in Houston, Texas” and that it “is a wholly-owned, direct subsidiary of Vitol US Holding Co.” App. at 2. Vitol adds that it “does not own any electric generation or transmission facilities, nor does it hold a franchise or service territory for the transmission, distribution, or sale of electric power.”
Vitol further states that it “has purchased, or will purchase, the power that may be exported to Canada from wholesale generators, electric utilities, and federal power marketing agencies.” App. at 4. Vitol contends that any power it purchases for export would be “surplus to the needs of the selling entities” and that “the proposed exports will not impair or tend to impede the sufficiency of electric power supplies in the United States or the regional coordination of electric utility planning or operations.”
Vitol also “agrees to abide by the export limits . . . of any [approved] transmission facilities over which Vitol exports electric power to Canada,” and states that “[t]he controls that are inherent in any transaction that complies with all [reliability] requirements and the export limits imposed by the Department on the international transmission facilities are sufficient to ensure that exports by Vitol would not impede or tend to impede the coordinated use of transmission facilities” under the Federal Power Act. App. at 6.
The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning Vitol's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-370-B. Additional copies are to be provided directly to Robert Viola, 2925 Richmond Avenue, 11th Floor, Houston, TX 77098;
A final decision will be made on the Application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after DOE determines that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of the Application will be made available, upon request, by accessing the program website at
U.S. Department of Energy.
Notice and request for OMB review and comment.
The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. The information collection requests a three-year extension of its Semi-Annual Davis-Bacon Enforcement Report. All Federal agencies administering programs subject to Davis-Bacon wage provisions are required by to submit a report of all new covered contracts/projects and all compliance and enforcement activities every six months to the Department of Labor (DOL). In order for DOE to comply with this reporting requirement, it must collect contract and enforcement information from the Recovery Act funded Loan Borrowers, Loan Guarantee Borrowers, DOE direct contractors, and
Comments regarding this collection must be received on or before November 24, 2020. If you anticipate difficulty in submitting comments within that period, contact the person listed below as soon as possible.
Written comments should be sent to:
Requests for additional information or copies of the information collection instrument and instructions should be directed to:
This information collection request contains: (1)
This document of the Department of Energy was signed on September 21, 2020, by John T. Lucas, Deputy General Counsel for Transactions, Technology and Contractor Human Resources, 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
National Nuclear Security Administration, Department of Energy.
Notice and request for comments.
Pursuant to the Paperwork Reduction Act of 1995, the Department of Energy (DOE) intends to extend for three years, an information collection request with the Office of Management and Budget (OMB).
Comments regarding this proposed information collection must be received on or before November 24, 2020. If you anticipate difficulty in submitting comments within that period, contact the person listed below as soon as possible.
Written comments to Jessica Norles, Foreign Affairs Specialist, by mail at Office of Nonproliferation and Arms Control, National Nuclear Security Administration, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585, or by fax at (202) 586-1348 or by email at
For other questions, contact Jessica Norles, Foreign Affairs Specialist, Office of Nonproliferation and Arms Control, National Nuclear Security Administration, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585,
DOE published in the
Comments are invited on: (a) Whether the extended 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 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 respondents, including through the use of automated collection techniques or other forms of information technology.
This information collection request contains: (1)
This document of the Department of Energy was signed on September 22, 2020, by Brent K. Park, Deputy Administrator for Defense Nuclear Nonproliferation, National Nuclear Security Administration, 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
This is a supplemental notice in the above-referenced Altamont Winds, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 12, 2020.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report 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 date(s). 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 the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on September 10, 2020, Northwest Pipeline LLC (Northwest), 2800 Post Oak Blvd., Houston, Texas 77056, filed in the above referenced docket, a prior notice request pursuant to sections 157.205 and 157.208 of the Commission's regulations under the Natural Gas Act and its blanket certificate issued in Docket No. CP82-433-000 for authorization to increase the maximum allowable operating pressure (MAOP) of the Othello Lateral on Northwest's system located in Adams County, Washington. Specifically, this project will increase the MAOP of the Othello Lateral from 765 psig to 811 psig to have a consistent MAOP with the Othello Loop. Northwest avers that there will be no increase, reduction, or termination in firm service to any existing customers, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
In addition to publishing the full text of this document in the
Any questions regarding this prior notice request should be directed to Liz Hughes, Regulatory Analyst, Northwest Pipeline LLC, P.O. Box 1396, Houston, Texas 77251 or email
Any person or the Commission's staff may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene, or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list and will be notified of any meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFile link at
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's revised draft human health risk assessment and ecological risk assessment for the registration review of chlorpyrifos.
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, farm worker, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the contact identified in the Table in Unit IV.
Registration review is EPA's periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration, that is, the pesticide can perform its intended function without unreasonable adverse effects on human health or the environment. As part of the registration review process, the Agency has completed comprehensive draft human health and ecological risk assessments for chlorpyrifos as listed in the Table in Unit IV. Through this program, EPA is ensuring that each pesticide's registration is based on current scientific and other knowledge, including its effects on human health and the environment.
EPA is conducting its registration review of the chemicals listed in the Table in Unit IV pursuant to section 3(g) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Procedural Regulations for Registration Review at 40 CFR part 155, subpart C. Section 3(g) of FIFRA provides, among other things, that the registrations of pesticides are to be reviewed every 15 years. Under FIFRA, a pesticide product may be registered or remain registered only if it meets the statutory standard for registration given in FIFRA section 3(c)(5) (7 U.S.C. 136a(c)(5)). When used in accordance with widespread and commonly recognized practice, the pesticide product must perform its intended function without unreasonable adverse effects on the environment, that is, without any unreasonable risk to man or the environment, or a human dietary risk from residues that result from the use of a pesticide in or on food that is inconsistent with the safety standard of section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA).
Pursuant to 40 CFR 155.53, EPA has evaluated available data and conducted new human health and ecological risk assessments for chlorpyrifos. This notice announces the availability of EPA's revised human health risk assessment and ecological risk assessment for the pesticides shown in the following table.
EPA will provide an opportunity for interested parties to provide comments and input concerning the Agency's draft human health and/or ecological risk assessments for the pesticides listed in the Table in Unit IV concurrently with the issuance of Proposed Interim Decision. The Agency will consider all comments received during the public comment period and make changes, as appropriate, to a draft human health and/or ecological risk assessment. EPA may then issue a revised risk assessment, explain any changes to the draft risk assessment, and respond to comments.
As provided in 40 CFR 155.58, the registration review docket for each pesticide case will remain publicly accessible through the duration of the registration review process; that is, until all actions required in the final decision on the registration review case have been completed.
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice.
Pursuant to the provisions of the Federal Advisory Committee Act, notice is hereby given that the next meeting of the Children's Health Protection Advisory Committee (CHPAC) will be held virtually October 22, 2020. The CHPAC advises the Environmental Protection Agency (EPA) on science, regulations and other issues relating to children's environmental health.
October 22, 2020 from 2 p.m. to 5 p.m.
The meeting will take place virtually. If you want to listen to the meeting or provide comments, please email
Nica Louie, Office of Children's Health Protection, U.S. EPA, MC 1107T, 1200 Pennsylvania Avenue NW, Washington, DC 20460, (202) 564-7633 or
The meetings of the CHPAC are open to the public. An agenda will be posted to
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is announcing the availability of the final Toxic Substances Control Act (TSCA) risk evaluation of Cyclic Aliphatic Bromide Cluster (HBCD). The purpose of conducting risk evaluations under TSCA is to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment under the conditions of use, including an unreasonable risk to a relevant potentially exposed or susceptible subpopulation, without consideration of costs or other nonrisk factors. EPA has determined that specific conditions of use of HBCD present an unreasonable risk of injury to health or the environment. For those conditions of use for which EPA has found an unreasonable risk, EPA must take regulatory action to address that unreasonable risk through risk management measures enumerated in TSCA. EPA has also determined that specific conditions of use do not present unreasonable risk of injury to health or the environment. For those conditions of use for which EPA has found no unreasonable risk to health or the environment, the Agency's determination is a final Agency action and is issued via order in the risk evaluation.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2019-0237, is available online at
Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Public Reading Room is closed to visitors with limited exceptions. The EPA/DC staff continue to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
This action is directed to the public in general. This action may be of interest to persons who are or may be interested in risk evaluations of chemical substances under TSCA, 15 U.S.C. 2601
TSCA section 6, 15 U.S.C. 2605, requires EPA to conduct risk evaluations to “determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation by the Administrator, under the conditions of use.” 15 U.S.C. 2605(b)(4)(A). TSCA sections 6(b)(4)(A) through (H) enumerate the deadlines and minimum requirements applicable to this process, including provisions that provide instruction on chemical substances that must undergo evaluation, the minimum components of a TSCA risk evaluation, and the timelines for public comment and completion of the risk evaluation. TSCA also requires that EPA operate in a manner that is consistent with the best available science, make decisions based on the weight of the scientific evidence and consider reasonably available information. 15 U.S.C. 2625(h), (i), and (k). TSCA section 6(i) directs that a determination of “no unreasonable risk” shall be issued by order and considered to be a final Agency action, while a determination of “unreasonable risk” is not considered to be a final Agency action. 15 U.S.C. 2605(i).
The statute identifies the minimum components for all chemical substance risk evaluations. For each risk evaluation, EPA must publish a document that outlines the scope of the risk evaluation to be conducted, which includes the hazards, exposures, conditions of use, and the potentially
The statute requires that the risk evaluation process be completed within a specified timeframe and provide an opportunity for public comment on a draft risk evaluation prior to publishing a final risk evaluation. 15 U.S.C. 2605(b)(4).
Subsection 5.4.1 of the final risk evaluation for HBCD constitutes the order required under TSCA section 6(i)(1), and the “no unreasonable risk” determinations in that subsection are considered to be a final Agency action effective on the date of issuance of the order. In conducting risk evaluations, “EPA will determine whether the chemical substance presents an unreasonable risk of injury to health or the environment under each condition of use within the scope of the risk evaluation. . .” 40 CFR 702.47. Under EPA's implementing regulations, “[a] determination by EPA that the chemical substance, under one or more of the conditions of use within the scope of the risk evaluation, does not present an unreasonable risk of injury to health or the environment will be issued by order and considered to be a final Agency action, effective on the date of issuance of the order.” 40 CFR 702.49(d). For purposes of TSCA section 19(a)(1)(A), the date of issuance of the section 6(i)(1) order for HBCD shall be at 1:00 p.m. Eastern time (standard or daylight, as appropriate) on the date that is two weeks after the date when this notice is published in the
EPA is announcing the availability of the risk evaluation of the chemical substance identified in Unit II. In this risk evaluation EPA has made unreasonable risk determinations on some of the conditions of use within the scope of the risk evaluation for this chemical. For those conditions of use for which EPA has found an unreasonable risk of injury to health or the environment, EPA must take regulatory action to address those risks through risk management measures enumerated in 15 U.S.C. 2605(a).
EPA also is announcing the availability of the information required to be provided publicly with each risk evaluation, which is available online at
• The scope document and problem formulation (in Docket ID No. EPA-HQ-OPPT-2016-0735);
• Draft risk evaluation, and final risk evaluation (in Docket ID No. EPA-HQ-OPPT-2019-0237);
• All notices, determinations, findings, consent agreements, and orders (in Docket ID No. EPA-HQ-OPPT-2019-0237);
• Any information required to be provided to the Agency under 15 U.S.C. 2603 (in Docket ID No. EPA-HQ-OPPT-2016-0735 and Docket ID No. EPA-HQ-OPPT-2019-0237);
• A nontechnical summary of the risk evaluation (in Docket ID No. EPA-HQ-OPPT-2019-0237);
• A list of the studies, with the results of the studies, considered in carrying out each risk evaluation (Risk Evaluation for Cyclic Aliphatic Bromide Cluster (HBCD Cluster) in Docket ID No. EPA-HQ-OPPT-2019-0237);
• The final peer review report, including the response to peer review and public comments received during peer review (in Docket ID No. EPA-HQ-OPPT-2019-0237); and
• Response to public comments received on the draft scope and the draft risk evaluation (in Docket ID No. EPA-HQ-OPPT-2019-0237).
The risk evaluation process is the second step in EPA's existing chemical review process under TSCA, following prioritization and before risk management. As this chemical is one of the first ten chemical substances undergoing risk evaluation, the chemical substance was not required to go through prioritization (81 FR 91927, December 19, 2016) (FRL-9956-47). The purpose of conducting risk evaluations is to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment under the conditions of use, including an unreasonable risk to a relevant potentially exposed or susceptible subpopulation. As part of this process, EPA must evaluate both hazard and exposure, not consider costs or other nonrisk factors, use reasonably available information and approaches in a manner that is consistent with the requirements in TSCA for the use of the best available science, and ensure decisions are based on the weight of scientific evidence.
The specific risk evaluation process that EPA has established by rule to implement the statutory process is set out in 40 CFR part 702 and summarized on EPA's website at
Prior to the publication of this final risk evaluation, a draft risk evaluation was subject to peer review and public comment. EPA reviewed the report from the peer review committee and public comments and has amended the risk evaluation in response to these comments as appropriate. The public comments, peer review report, and EPA's response to comments is in Docket ID No. EPA-HQ-OPPT-2019-0237. Prior to the publication of the draft risk evaluation, EPA made available the scope and problem formulation, and solicited public input on uses and exposure. EPA's documents and the public comments are in Docket ID No. EPA-HQ-OPPT-2016-0735. Additionally, information about the scope, problem formulation, and draft risk evaluation phases of the TSCA risk evaluation for this chemical is at
The cyclic aliphatic bromide cluster chemicals, including hexabromocyclododecane (HBCD), are flame retardants. Other uses include use as a component of solder and use in automobile replacement parts. EPA has not identified reasonably available information to suggest that HBCD is currently domestically manufactured in
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
EPA has received a specific exemption request from the National Aeronautics and Space Administration (NASA) to use the pesticide ortho-phthalaldehyde (OPA, CAS No. 643-79-8) to treat the coolant fluid of the internal active thermal control system of the International Space Station to control aerobic/microaerophilic bacteria in the aqueous coolant. The applicant proposes the use of a new chemical which has not been registered by EPA. Therefore, in accordance with the Code of Federal Regulations (CFR), EPA is soliciting public comment before making the decision whether to grant the exemption.
Comments must be received on or before October 13, 2020.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2020-0390, by one of the following methods:
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Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
Marietta Echeverria, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
In accordance with the regulations at 40 CFR 166.24(a)(1), EPA is soliciting public comment before making the decision whether to grant the exemption.
You may be potentially affected by this action if you are a pesticide manufacturer (North American Industrial Classification System (NAICS) (Code 32532) or involved with the International Space Station. This listing is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Other types of entities not listed could also be affected.
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Under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136p), at the discretion of the EPA Administrator, a Federal or State agency may be exempted from any provision of FIFRA if the EPA Administrator determines that emergency conditions exist which require the exemption. NASA has requested the EPA Administrator to issue a specific exemption for the use of ortho-phthalaldehyde (OPA) in the coolant of the internal active thermal control system (IATCS) of the International Space Station (ISS) to control aerobic/microaerophilic bacteria in the aqueous coolant. Information in accordance with 40 CFR part 166 was submitted as part of this request.
As part of this request, the applicant stated that it has considered the registered biocide alternatives and has concluded that OPA is the most effective biocide which meets the requisite criteria including: The need for safe, non-intrusive implementation and operation in a functioning system; the ability to control existing planktonic and biofilm-residing micro-organisms; a negligible impact on system-wetted materials of construction; and a negligible reactivity with existing coolant additives. The ISS would not have an adequate long-term solution for controlling the micro-organisms in the IATCS coolant without the use of OPA. The OPA is incorporated into a porous resin material contained in a stainless-steel canister. The canister containing the OPA-incorporated resin is inserted into a coolant system loop, using flexible hose and quick disconnects, and is placed in-line for 8 hours to deliver the OPA into the fluid. As the coolant fluid flows through the canister, the OPA elutes from the resin material into the coolant fluid. The total volume of the circulatory loops of the IATCS is 829 liters. The maximum concentration would be 500 milligrams (mg) of OPA per liter of coolant fluid. A total of 414,500 mg of OPA would be needed for the entire system. The OPA is incorporated into the resin at 210 mg OPA per cm
This notice does not constitute a decision by EPA on the application itself. The regulations governing FIFRA section 18 require publication of a notice of receipt of an application for a specific exemption proposing the use of a new chemical (
The Agency will review and consider all comments received during the comment period in determining whether to issue the specific exemption requested by NASA.
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice.
EPA is required under the Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, to make information publicly available and to publish information in the
Comments identified by the specific case number provided in this document must be received on or before October 26, 2020.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2020-0077, and the specific case number for the chemical substance related to your comment, by one of the following methods:
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Due to the public health concerns related to COVID-19, the EPA Docket
This document provides the receipt and status reports for the period from 08/01/2020 to 08/31/2020. The Agency is providing notice of receipt of PMNs, SNUNs and MCANs (including amended notices and test information); an exemption application under 40 CFR part 725 (Biotech exemption); TMEs, both pending and/or concluded; NOCs to manufacture a new chemical substance; and a periodic status report on new chemical substances that are currently under EPA review or have recently concluded review.
EPA is also providing information on its website about cases reviewed under the amended TSCA, including the section 5 PMN/SNUN/MCAN and exemption notices received, the date of receipt, the final EPA determination on the notice, and the effective date of EPA's determination for PMN/SNUN/MCAN notices on its website at:
Under TSCA, 15 U.S.C. 2601
Any person who intends to manufacture (including import) a new chemical substance for a non-exempt commercial purpose, or to manufacture or process a chemical substance in a non-exempt manner for a use that EPA has determined is a significant new use, is required by TSCA section 5 to provide EPA with a PMN, MCAN or SNUN, as appropriate, before initiating the activity. EPA will review the notice, make a risk determination on the chemical substance or significant new use, and take appropriate action as described in TSCA section 5(a)(3).
TSCA section 5(h)(1) authorizes EPA to allow persons, upon application and under appropriate restrictions, to manufacture or process a new chemical substance, or a chemical substance subject to a significant new use rule (SNUR) issued under TSCA section 5(a)(2), for “test marketing” purposes, upon a showing that the manufacture, processing, distribution in commerce, use, and disposal of the chemical will not present an unreasonable risk of injury to health or the environment. This is referred to as a test marketing exemption, or TME. For more information about the requirements applicable to a new chemical go to:
Under TSCA sections 5 and 8 and EPA regulations, EPA is required to publish in the
This action provides information that is directed to the public in general.
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In the past, EPA has published individual notices reflecting the status of TSCA section 5 filings received, pending or concluded. In 1995, the Agency modified its approach and streamlined the information published in the
For the PMN/SNUN/MCANs that have passed an initial screening by EPA during this period, Table I provides the following information (to the extent that such information is not subject to a CBI claim) on the notices screened by EPA during this period: The EPA case
As used in each of the tables in this unit, (S) indicates that the information in the table is the specific information provided by the submitter, and (G) indicates that this information in the table is generic information because the specific information provided by the submitter was claimed as CBI. Submissions which are initial submissions will not have a letter following the case number. Submissions which are amendments to previous submissions will have a case number followed by the letter “A” (
In Table II of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs that have passed an initial screening by EPA during this period: The EPA case number assigned to the NOC including whether the submission was an initial or amended submission, the date the NOC was received by EPA, the date of commencement provided by the submitter in the NOC, a notation of the type of amendment (
In Table III of this unit, EPA provides the following information (to the extent such information is not subject to a CBI claim) on the test information that has been received during this time period: The EPA case number assigned to the test information; the date the test information was received by EPA, the type of test information submitted, and chemical substance identity.
If you are interested in information that is not included in these tables, you may contact EPA's technical information contact or general information contact as described under
15 U.S.C. 2601
Notice of Open Meeting of the Advisory Committee of the Export-Import Bank of the United States (EXIM).
Tuesday, September 29, 2020 from 1:00-4:00 p.m. EDT.
The meeting will be held via teleconference and audio-only webinar.
Public Participation: The meeting will be open to public participation and time will be allotted for questions or comments submitted online. Members of the public may also file written statements before or after the meeting to
Discussion of EXIM policies and programs to provide competitive financing to expand United States exports.
For further information, contact Brittany J. Walker, Deputy to the Senior Vice President for External Engagement 202-565-3216.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before November 24, 2020. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
The labeling requirement is applicable to persons who manufacture, sell, lease, or offer for sale or lease, wireless microphone or video assist devices
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments and recommendations for the proposed information collection should be submitted on or before October 26, 2020.
Comments should be sent to
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
The information will be collected by the Public Safety and Homeland Security Bureau, FCC, for review and analysis, to verify that covered 911 service providers are taking reasonable measures to maintain reliable 911 service. In certain cases, based on the information included in the certifications and subsequent coordination with the provider, the Commission may require remedial action to correct vulnerabilities in a service provider's 911 network if it determines that (a) the service provider has not, in fact, adhered to the best practices incorporated in the FCC's rules, or (b) in the case of providers employing alternative measures, that those measures were not reasonably sufficient to mitigate the associated risks of failure in these key areas. The Commission delegated authority to the Bureau to review certification information and follow up with service providers as appropriate to address deficiencies revealed by the certification process.
The purpose of the collection of this information is to verify that covered 911 service providers are taking reasonable measures such that their networks comply with accepted best practices, and that, in the event they are not able to certify adherence to specific best practices, that they are taking reasonable alternative measures. The Commission adopted these rules in light of widespread 911 outages during the June 2012 derecho storm in the Midwest and Mid-Atlantic states, which revealed that multiple service providers did not take adequate precautions to maintain reliable service.
Federal Deposit Insurance Corporation (FDIC).
Agency Information Collection Activities: Submission for OMB Review; comment request.
The FDIC, as part of its obligations under the Paperwork Reduction Act of 1995, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of the existing information collections described below. The FDIC published notices in the
Comments must be submitted on or before October 26, 2020.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Manny Cabeza, Regulatory Counsel, 202-898-3767,
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There is no change in the method or substance of the collection. The overall decrease in burden hours is a result of the decrease in the estimated number of respondents.
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Currently, the FDIC has a variety of methods to collect quantitative information from consumers and institutions (
The purpose of the surveys is, in general terms, to obtain anecdotal information about regulatory burden, problems or successes in the bank supervisory process (including both safety-and-soundness and consumer-related exams), the perceived need for regulatory or statutory change, and similar concerns. The information in these surveys is anecdotal in nature, that is, samples are not necessarily random, the results are not necessarily representative of a larger class of potential respondents, and the goal is not to produce a statistically valid and reliable database. Rather, the surveys are expected to yield anecdotal information about the particular experiences and opinions of members of the public, primarily staff at respondent banks or bank customers. The collection is non-controversial and does not raise issues of concern to other Federal agencies; with the exception of information needed to provide remuneration for participants of focus groups and cognitive laboratory studies, personally identifiable information (PII) is collected only to the extent necessary and is not retained.
Participation in this information collection will be voluntary and conducted in-person, by phone, or using other methods, such as virtual technology. The types of collections that this generic clearance covers include, but are not limited to: small discussion groups; focus groups of consumers, financial industry professionals, or other stakeholders; cognitive laboratory studies, such as those used to refine questions or assess usability of a website; qualitative customer satisfaction surveys (
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions 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 respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Federal Deposit Insurance Corporation.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank(s) indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than October 26, 2020.
A. Federal Reserve Bank of Minneapolis (Chris P. Wangen, Assistant Vice President), 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
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B. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
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Centers for Medicare & Medicaid Services, Health and Human 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 October 26, 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
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The States must conduct RetroDUR which provides for the ongoing periodic examination of claims data and other records in order to identify patterns of fraud, abuse, inappropriate or medically unnecessary care. Patterns or trends of drug therapy problems are identified and reviewed to determine the need for intervention activity with pharmacists and/or physicians. States may conduct interventions via telephone, correspondence, or face-to-face contact.
Annual reports are submitted to CMS for the purposes of monitoring compliance and evaluating the progress of States' DUR programs. The information submitted by States is reviewed and results are compiled by CMS in a format intended to provide information, comparisons, and trends related to States' experiences with DUR. States benefit from the information and may enhance their programs each year based on State reported innovative practices that are compiled by CMS from the DUR annual reports.
Centers for Medicare and Medicaid Services, HHS.
Final notice.
This final notice announces our decision to approve the Community Health Accreditation Partner (CHAP) for initial recognition as a national accrediting organization for home infusion therapy suppliers that wish to participate in the Medicare program. A home infusion therapy supplier that participates must meet the Medicare conditions for coverage.
The approval announced in this final notice is effective September 25, 2020 through September 25, 2024.
Christina Mister-Ward, (410) 786-2441.
Shannon Freeland, (410) 786-4348.
Lillian Williams, (410) 786-8636.
Home Infusion therapy (HIT) is a treatment option for Medicare beneficiaries with a wide range of acute and chronic conditions. Section 5012 of the 21st Century Cures Act (Pub. L. 114-255, enacted on December 13, 2016) added sections 1861(iii) and 1834(u) to the Social Security Act (the Act), establishing a new Medicare benefit for HIT services. Section 1861(iii)(1) of the Act defines HIT as professional services, including nursing services; training and education not otherwise covered under the Durable Medical Equipment (DME) benefit; remote monitoring; and other monitoring services. Home infusion therapy must be furnished by a qualified HIT supplier and furnished in the individual's home. The individual must:
• Be under the care of an applicable provider (that is, physician, nurse practitioner, or physician assistant); and
• Have a plan of care established and periodically reviewed by a physician in coordination with the furnishing of home infusion drugs under Part B, that prescribes the type, amount, and duration of infusion therapy services that are to be furnished.
Section 1861(iii)(3)(D)(i)(III) of the Act requires that a qualified HIT supplier be accredited by an accrediting organization (AO) designated by the Secretary in accordance with section 1834(u)(5) of the Act. Section 1834(u)(5)(A) of the Act identifies factors for designating AOs and in reviewing and modifying the list of designated AOs. These statutory factors are as follows:
• The ability of the organization to conduct timely reviews of accreditation applications.
• The ability of the organization take into account the capacities of suppliers located in a rural area (as defined in section 1886(d)(2)(D) of the Act).
• Whether the organization has established reasonable fees to be charged to suppliers applying for accreditation.
• Such other factors as the Secretary determines appropriate.
Section 1834(u)(5)(B) of the Act requires the Secretary to designate AOs to accredit HIT suppliers furnishing HIT not later than January 1, 2021. Section 1861(iii)(3)(D) of the Act defines “qualified home infusion therapy suppliers” as being accredited by a CMS-approved AO.
In the March 1, 2019
Regulations for the approval and oversight of AOs for HIT organizations are located at 42 CFR part 488, subpart L. The requirements for HIT suppliers are located at 42 CFR part 486, subpart I.
Section 1834(u)(5) of the Act and the regulations at § 488.1010 require that our findings concerning review and approval of a national AO's requirements consider, among other factors, the applying AO's requirements for accreditation; survey procedures; resources for conducting required surveys; capacity to furnish information for use in enforcement activities; monitoring procedures for provider entities found not in compliance with the conditions or requirements; and ability to provide CMS with the necessary data.
Section 488.1020(a) requires that we publish, after receipt of an organization's complete application, a notice identifying the national accrediting body making the request, describing the nature of the request, and providing at least a 30-day public comment period. In accordance with § 488.1010(d), we have 210 days from the receipt of a complete application to approve or deny the application.
In the April 27, 2020
• An administrative review of CHAP's: (1) Corporate policies; (2) financial and human resources available to accomplish the proposed surveys; (3) procedures for training, monitoring, and evaluation of its home infusion therapy surveyors; (4) ability to investigate and respond appropriately to complaints against accredited home infusion therapies; and (5) survey review and decision-making process for accreditation.
• The ability for CHAP to conduct timely review of accreditation applications.
• The ability of CHAP to take into account the capacities of suppliers located in a rural area.
• The comparison of CHAP's Medicare HIT accreditation program standards to our current Medicare home infusion therapy conditions for coverage (CfCs).
• CHAP's survey process to determine the following:
++ The composition of the survey team, surveyor qualifications, and CHAP's ability to provide continuing surveyor training.
++ CHAP's processes, including periodic resurvey and the ability to investigate and respond appropriately to complaints against accredited home infusion therapies.
++ Evaluate CHAP's procedures for monitoring home infusion therapies it has found to be out of compliance with CHAP's program requirements.
++ Assess CHAP's ability to report deficiencies to the surveyed home infusion therapy and respond to the home infusion therapy's plan of correction in a timely manner.
++ Establish CHAP's ability to provide CMS with electronic data and reports necessary for effective validation and assessment of the organization's survey process.
++ Determine the adequacy of CHAP's staff and other resources.
++ Confirm CHAP's ability to provide adequate funding for performing required surveys.
++ Confirm CHAP's policies with respect to surveys being unannounced.
++ Review CHAP's policies and procedures to avoid conflicts of interest, including the appearance of conflicts of interest, involving individuals who conduct surveys or participate in accreditation decisions.
++ Obtain CHAP's agreement to provide CMS with a copy of the most current accreditation survey together with any other information related to the survey as we may require, including corrective action plans.
The April 27, 2020 proposed notice also solicited public comments regarding whether CHAP's requirements met or exceeded the Medicare CfCs for home infusion therapy. No comments were received in response to our proposed notice.
We compared CHAP's HIT accreditation requirements and survey process with the Medicare CfCs of part 486, subpart I and the survey and certification process requirements of part 488, subpart L. Our review and evaluation of CHAP's HIT application, which was conducted as described in section III. of this final notice, yielded the following areas where, as of the date of this notice, CHAP has completed revising its standards and certification processes in order to meet the condition at:
• Section 486.520(b), to address the requirement of the plan of care must be established by a physician prescribing the type, amount and duration for home infusion therapy.
• Section 486.525(a), to include the required language “plan of care”.
• Section 488.1010(a)(6)(iv), to revise CHAP's procedures for survey reviews.
As authorized under § 488.1040(a), we reserve the right to conduct onsite observations of accrediting organization operations at any time as part of the ongoing review and continuing oversight of an accrediting organization's performance. Based on the review and observations described in section III. of this final notice, we have determined that CHAP's requirements for HIT meet or exceed our requirements. Therefore, we approve CHAP as a national accreditation organization for HITs that request participation in the Medicare program, effective September 25, 2020 through September 25, 2024.
This document does not impose information collection and requirements, that is, reporting, recordkeeping or third party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
The Administrator of the Centers for Medicare & Medicaid Services (CMS), Seema Verma, having reviewed and approved this document, authorizes Lynette Wilson, who is the Federal Register Liaison, to electronically sign this document for purposes of publication in the
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of three final guidance documents for the Accreditation Scheme for Conformity Assessment Pilot Program—specifically, “The Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program; Guidance for Industry, Accreditation Bodies, Testing Laboratories, and FDA Staff”; “Basic Safety and Essential Performance of Medical Electrical Equipment, Medical Electrical Systems, and Laboratory Medical Equipment—Standards Specific Information for the Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program: Guidance for Industry, Accreditation Bodies, Testing Laboratories, and FDA Staff”; and “Biocompatibility Testing of Medical Devices—Standards Specific Information for the Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program: Guidance for Industry, Accreditation Bodies, Testing Laboratories, and FDA Staff.” These guidances describe the goals, scope, procedures, and framework for the voluntary ASCA Pilot program, and provide information about two groups of consensus standards within the scope of the pilot program.
The announcement of these guidances 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:
• Mail/Hand Delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
• 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)).
Electronic copies of these three guidance documents are available for download from the internet. See the
Erin Cutts, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5554, Silver Spring, MD 20993-0002, 301-796-6307; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993, 240-402-7911.
The FDA Reauthorization Act of 2017 (FDARA) amended section 514 of the FD&C Act (21 U.S.C. 360d) by adding a new paragraph (d) with the title “Pilot Accreditation Scheme for Conformity Assessment” (see Pub. L. 115-52, section 205). The new paragraph 514(d) requires FDA to establish a pilot program under which testing laboratories may be accredited by accreditation bodies meeting criteria specified by FDA to assess the conformance of a device within certain FDA-recognized standards. Determinations by testing laboratories so accredited that a device conforms with an eligible standard included as part of the pilot program shall be accepted by FDA for the purposes of demonstrating such conformity unless FDA finds that a particular such determination shall not be so accepted.
The statute provides that FDA may review determinations by accredited testing laboratories, including by conducting periodic audits of such determinations or processes of accreditation bodies or testing laboratories. Following such a review, or if FDA becomes aware of information materially bearing on safety or effectiveness of a device assessed by an accredited testing laboratory, FDA may take additional measures as determined appropriate, including suspension or withdrawal of accreditation of a testing laboratory or a request for additional information regarding a specific device.
Under the ASCA Pilot's conformity assessment scheme, ASCA-recognized accreditation bodies accredit testing laboratories using ASCA program specifications associated with each eligible standard and ISO/IEC 17025:2017: General requirements for the competence of testing and calibration laboratories. ASCA-accredited testing laboratories may conduct testing to provide data used to determine conformance of a device with at least one of the standards eligible for inclusion in the ASCA Pilot. When an ASCA-accredited testing laboratory conducts testing under the ASCA Pilot, it provides to the device manufacturer all information listed in the ASCA program specifications, which includes an ASCA summary test report. A device manufacturer that uses an ASCA-accredited testing laboratory to perform testing in accordance with the provisions of the ASCA Pilot can then include a declaration of conformity with any necessary supplemental documentation (
FDA held a public workshop entitled “Accreditation Scheme for Conformity Assessment of Medical Devices to Food and Drug Administration—Recognized Standards” on May 22-23, 2018, to obtain input and recommendations from stakeholders about the ASCA Pilot, including its goals and scope as well as
FDA considered comments received on the draft guidance “The Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program” that appeared in the
• “The Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program; Guidance for Industry, Accreditation Bodies, Testing Laboratories, and FDA Staff” describes how the ASCA Pilot was designed and how accreditation bodies, testing laboratories, device manufacturers, and FDA staff participate in the program.
• “Basic Safety and Essential Performance of Medical Electrical Equipment, Medical Electrical Systems, and Laboratory Medical Equipment—Standards Specific Information for the Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program: Guidance for Industry, Accreditation Bodies, Testing Laboratories, and FDA Staff” provides information specific to the basic safety and essential performance standards in the ASCA Pilot, including which standards are eligible for inclusion in the program, ASCA program specifications for those standards, and recommended premarket submission contents specific to those standards when testing is conducted by an ASCA-accredited testing laboratory.
• “Biocompatibility Testing of Medical Devices—Standards Specific Information for the Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program: Guidance for Industry, Accreditation Bodies, Testing Laboratories, and FDA Staff” provides information specific to the biological evaluation of medical device standards and test methods in the ASCA Pilot, including which standards and test methods are eligible for inclusion in the program, ASCA program specifications for those standards and test methods, and recommended premarket submission contents specific to those standards and test methods when testing is conducted by an ASCA-accredited testing laboratory.
These guidances are being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). These guidances represents the current thinking of FDA on the “Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program”; “Basic Safety and Essential Performance of Medical Electrical Equipment, Medical Electrical Systems, and Laboratory Medical Equipment—Standards Specific Information for the Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program”; and “Biocompatibility Testing of Medical Devices—Standards Specific Information for the Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program.” They do not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of these guidances may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
• Document number 17037 for “The Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program; Guidance for Industry, Accreditation Bodies, Testing Laboratories, and FDA Staff”.
• Document number 20011 for “Basic Safety and Essential Performance of Medical Electrical Equipment, Medical Electrical Systems, and Laboratory Medical Equipment—Standards Specific Information for the Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program: Guidance for Industry, Accreditation Bodies, Testing Laboratories, and FDA Staff”.
• Document number 20012 for “Biocompatibility Testing of Medical Devices—Standards Specific Information for the Accreditation Scheme for Conformity Assessment (ASCA) Pilot Program: Guidance for Industry, Accreditation Bodies, Testing Laboratories, and FDA Staff”.
In the
These guidances refer to previously approved collections of information. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). 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, HHS.
Notice.
The Food and Drug Administration's (FDA or Agency) Center for Drug Evaluation and Research (CDER) is proposing to withdraw approval of five abbreviated new drug applications (ANDAs) and is announcing an opportunity for the ANDA holders to request a hearing on this proposal. The basis for the proposal is that the ANDA holders have repeatedly failed to file required annual reports for those ANDAs and have failed to satisfy the requirement to have an approved risk evaluation and mitigation strategy (REMS).
The ANDA holders may submit a request for a hearing by October 26, 2020. Submit all data, information, and analyses upon which the request for a hearing relies November 24, 2020. Submit electronic or written comments by November 24, 2020.
The request for a hearing may be submitted by the ANDA holders by either of the following methods:
Submit electronic comments in the following way:
•
Submit written/paper submissions as follows:
•
• Because your request for a hearing will be made public, you are solely responsible for ensuring that your request does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. The request for a hearing must include the Docket No. FDA-2020-N-1816 “Lavipharm Laboratories, Inc., et al.; Proposal To Withdraw Approval of Five Abbreviated New Drug Applications; Opportunity for a Hearing.” The request for a hearing will be placed in the docket and publicly viewable at
The ANDA holders may submit all data and analyses upon which the request for a hearing relies in the same manner as the request for a hearing except as follows:
• Confidential Submissions—To submit any data analyses with confidential information that you do not wish to be made publicly available, submit your data and analyses only as a written/paper submission. You should submit two copies total of all data and analyses. 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 any decisions on this matter. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
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
Kimberly Lehrfeld, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6226, Silver Spring, MD 20993-0002, 301-796-3137.
The holder of an approved ANDA to market a new drug for human use is required to submit annual reports to FDA concerning its approved ANDA under §§ 314.81 and 314.98 (21 CFR 314.81 and 314.98). The holders of the approved ANDAs listed in table 1 have repeatedly failed to submit the required annual reports and have not responded to the Agency's request for submission of the reports.
Additionally, in accordance with section 505-1 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 355-1), the Agency determined that a REMS is necessary for all the applicable listed drugs that the ANDAs in table 1 reference to ensure the benefits of the listed drugs outweigh the risks. In accordance with section 505-1(i) of the FD&C Act, an ANDA is required to have a REMS if the applicable listed drug has an approved REMS. We notified the holders of approved ANDAs in table 1 of the REMS requirement on September 28, 2017. The holders of the approved ANDAs listed in table 1 have failed to receive approval of a REMS for their products.
Therefore, notice is given to the holders of the approved ANDAs listed in table 1 and to all other interested persons that the Director of CDER proposes to issue an order, under section 505(e)(2) of the FD&C Act (21 U.S.C. 355(e)(2)), withdrawing approval of the ANDAs and all amendments and supplements thereto on the grounds that the ANDA holders have failed to submit reports required under §§ 314.81 and 314.98 and section 505(k) of the FD&C Act, and have failed to receive approval of a REMS for their products in accordance with section 505-1 of the FD&C Act.
In accordance with section 505(e) of the FD&C Act and 21 CFR 314.150(a) and (b)(1) and 21 CFR 314.200, the ANDA holders are hereby provided an opportunity for a hearing to show why the approval of the ANDAs identified above should not be withdrawn and an opportunity to raise, for administrative determination, all issues relating to the legal status of the drug products covered by these ANDAs.
An ANDA holder who decides to seek a hearing must file the following: (1) a written notice of participation and request for a hearing (see
The failure of an ANDA holder to file a timely written notice of participation and request for a hearing, as required by § 314.200, constitutes an election by that ANDA holder not to avail itself of the opportunity for a hearing concerning CDER's proposal to withdraw approval of the ANDAs and constitutes a waiver of any contentions concerning the legal status of the drug products. FDA will then withdraw approval of the ANDAs, and the drug products may not thereafter be lawfully marketed or delivered for introduction into interstate commerce. Any new drug product introduced or delivered for introduction into interstate commerce without an approved ANDA is subject to regulatory action at any time.
A request for a hearing may not rest upon mere allegations or denials but must present specific facts showing that there is a genuine and substantial issue of fact that requires a hearing (§ 314.200(g)). If a request for a hearing is not complete or is not supported, the Commissioner of Food and Drugs will enter summary judgment against the person who requests the hearing, making findings and conclusions, and denying a hearing (§ 314.200(g)(1)).
All submissions under this notice of opportunity for a hearing must be filed in two copies. Except for data and information prohibited from public disclosure under 21 U.S.C. 331(j) or 18 U.S.C. 1905, the submissions may be seen at the Dockets Management Staff (see
This notice is issued under section 505(e)(2) of the FD&C Act and under authority delegated to the Director of CDER by the Commissioner of Food and Drugs.
Office of the Secretary, Office of the Assistant Secretary for Health, Department of Health and Human Services.
Notice.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the Secretary's Advisory Committee on Human Research Protections (SACHRP) will hold a meeting that will be open to the public. Information about SACHRP, the full meeting agenda, and instructions for linking to public access will be posted on the SACHRP website at
The meeting will be held on Tuesday, October 20th, 2020, from 11:00 a.m. until 4:30 p.m., and Wednesday, October 21, 2020, from 11:00 a.m. until 4:30 p.m. (times are tentative and subject to change). The confirmed times and agenda will be posted at on the SACHRP website when this information becomes available.
This meeting will be held via webcast. Members of the public may also attend the meeting via webcast. Instructions for attending via webcast will be posted one week prior to the meeting at
Julia Gorey, J.D., Executive Director, SACHRP; U.S. Department of Health and Human Services, 1101 Wootton Parkway, Suite 200, Rockville, Maryland 20852; telephone: 240-453-8141; fax: 240-453-6909; email address:
Under the authority of 42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended, SACHRP was established to provide expert advice and recommendations to the Secretary of Health and Human Services, through the Assistant Secretary for Health, on issues and topics pertaining to or associated with the protection of human research subjects.
The Subpart A Subcommittee (SAS) was established by SACHRP in October 2006 and is charged with developing recommendations for consideration by SACHRP regarding the application of subpart A of 45 CFR part 46 in the current research environment.
The Subcommittee on Harmonization (SOH) was established by SACHRP at its July 2009 meeting and charged with identifying and prioritizing areas in which regulations and/or guidelines for human subjects research adopted by various agencies or offices within HHS would benefit from harmonization, consistency, clarity, simplification and/or coordination.
The SACHRP meeting will open to the public at 11:00 a.m., on Tuesday, October 20, 2020, followed by opening remarks from Dr. Jerry Menikoff, Director of OHRP and Dr. Stephen Rosenfeld, SACHRP Chair. The meeting will begin with presentation of recommendations on the interpretation of the public health surveillance exclusion, 45 CFR 46.102(l)(2) and 46.102(k). This will be followed by a panel review of ethical considerations regarding “justice” within 45 CFR 46, and how this concept may affect the actions of IRBs. The following day continues with a discussion of recommendations on risks to bystanders posed by the research setting. Other topics may be added; for the full and updated meeting agenda, see
The public will have an opportunity to comment to the SACHRP during the meeting's public comment session or by submitting written public comment. Persons who wish to provide public comment should review instructions at
Time will be allotted for public comment on both days. Note that public comment must be relevant to topics currently being addressed by the SACHRP.
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 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 meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces modifications to U.S. Customs and Border Protection's (CBP's) test program for submitting electronic Foreign Trade Zone (FTZ) admission applications. Specifically, this notice announces that the zone identification number is being expanded from seven to nine digits and that test participants will now have the ability to submit “replace” requests to modify parts of an admission while retaining the original filing date, submit post-admission correction requests, and cancel permit to transfer transactions. Further, for ease of reference, this notice also reproduces the current test requirements in full.
As of September 26, 2020, the modifications to the test announced in this notice, with the exception of the expanded nine-digit zone identification number, will become operational. The expanded zone identification number will be implemented as of January 25, 2021. This test will continue until concluded by way of announcement in the
Comments concerning this notice and any aspect of this test may be submitted at any time during the test via email to Cargo & Conveyance Security, Office of Field Operations, U.S. Customs and Border Protection, at
For operational questions, contact Lydia Jackson, Cargo & Conveyance Security, Office of Field Operations, U.S. Customs and Border Protection, at 202-344-3055 or
The National Customs Automation Program (NCAP) was established by Subtitle B of Title VI—Customs Modernization in the North American Free Trade Agreement (NAFTA) Implementation Act (Customs Modernization Act) (Pub. L. 103-182, 107 Stat. 2057, 2170, December 8, 1993) (19 U.S.C. 1411). Through NCAP, the thrust of customs modernization was on trade compliance and the development of the Automated Commercial Environment (ACE), the planned successor to the Automated Commercial System (ACS), as the electronic data interchange (EDI) system authorized by U.S. Customs and Border Protection (CBP). ACE is an automated and electronic system for commercial trade processing, which is intended to streamline business processes, facilitate growth in trade, ensure cargo security, and foster participation in global commerce, while ensuring compliance with U.S. laws and regulations and reducing costs for CBP and all of its communities of interest. The ability to meet these objectives depends on successfully modernizing CBP's business functions and the information technology that supports those functions.
CBP's modernization efforts are accomplished through phased releases of ACE component functionality designed to replace specific legacy ACS functions and add new functionality. Section 101.9(b) of title 19 of the Code of Federal Regulations (19 CFR 101.9(b)) provides for the testing of NCAP components.
On August 19, 2005, CBP published a notice in the
Due to low participation in the test program and insufficient data collected, CBP announced that the test would be run again, in the
This notice announces changes to the test program for submitting the electronic FTZ admission applications (hereinafter Electronic FTZ test). The zone identification number is being expanded from seven to nine digits and test participants will now have the ability to submit “replace” requests to modify parts of an admission while retaining the original filing date, submit post-admission correction requests, and cancel a permit to transfer transaction. The changes are discussed separately below, and further information is contained in the ACE Foreign Trade Zone (e214) chapter of the CBP and Trade Automated Interface Requirements (CATAIR), available at:
CBP assigns unique identifiers for all FTZ site locations. The length of the alpha-numeric zone identification number (Zone ID number) will be expanded from seven to nine digits to accommodate additional Subzones and sets of General Purpose (GP) Zone Acreage, as well as additional FTZ site locations associated with a Subzone or a set of GP Zone Acreage. The expanded nine-digit Zone ID number will consist of the following, in the listed order:
CBP will coordinate internally prior to and throughout the 120-day period following publication of this notice to transition to the expanded nine-digit system by aiding the local port offices with issuing the expanded Zone ID numbers to the FTZ operators. The FTZ operators are responsible for ensuring the type 04 FTZ bond associated with each FTZ site profile in ACE is up to date and active. As needed, CBP Client Representatives will assist software vendors and trade filers as the primary point of contact during this time. At the conclusion of the 120-day transition period, all existing Zone ID numbers will have been replaced with system-generated expanded Zone ID numbers and all Zone ID numbers issued in the future will consist of nine digits.
Currently, for modifications to FTZ admission data, an admission must first be deleted and then a complete replacement of the admission must be filed. This process causes a break in custody by generating a new admission date. Retaining the original admission date is necessary to ensure that privileged foreign status duty rates are correctly applied, and that is critical to maintain the integrity of the FTZ operator's foreign status inventory. Without maintaining the original admission date, inventory could be subject to higher duty rates that become effective subsequent to the original admission date. Accordingly, in order to ensure the integrity of the zone inventory, CBP has added new functionality to the Electronic FTZ test to allow for “replace” requests to modify an admission while retaining the original admission date.
To make a “replace” request for a modification, filers of the e214 must submit one of the mandatory reason codes and provide a contact name and contact phone number. Reason codes for modifications can be found in the CATAIR and are as follows: 01 Change/Add Conveyance(s); 02 Delete Conveyance(s); 03 Change/Add Bill of Lading(s); 04 Delete Bill of Lading(s); 05 Change/Add HTSUS Line(s); 06 Delete HTSUS Line(s); 07 Change Admitted Quantity; and 08 Other. CBP will consider replace requests for modifications on a transactional basis and, upon CBP review, the filer will receive a message with a disposition code indicating whether the request was approved or denied.
Changes to an admission that has been fully accepted into the zone (via a process known as concurrence) are not permitted in the Electronic FTZ test. The process of replacing an entire admission creates a cumbersome process that affects other transactions associated with the bills of lading on the initial admission, which could lead to delays in cargo movement. Therefore, CBP has added the ability to request a post-admission correction to the Electronic FTZ test that will allow for modification after the admission has been concurred and fully accepted into the zone operator's inventory and recordkeeping system. The post-admission correction process described here does not affect the bond liability that would otherwise exist absent the correction.
To request a modification for an admission that has been fully accepted into the zone, which will be considered by CBP on a transactional basis, filers must submit one of the mandatory reason codes and must also submit a contact name and contact phone number.
Reason codes for post-admission correction requests can be found in the CATAIR and are as follows: 01 Clerical error; 02 Admission replaced by CBP Form 7512 (Replacement in-bond number required; must be authorized by CBP); 03 Merchandise cleared under another admission (Replacement admission number already on file required); 04 Admission replaced by a formal entry (Replacement entry number already on file required); 05 Merchandise cleared under informal entry (Replacement entry number already on file required); 06 Merchandise seized; 07 Merchandise destroyed; 08 Non-arrival; 09 Shipment refused by importer/zone operator; 10 Shipment not authorized for import (refused by PGA); and 11 System error. Moreover, there is a 15-day time limit from the date of arrival in the port in which to request a post-admission correction; for any correction requests outside of the 15-day time limit, please contact your local port. Upon CBP review, the filer will receive a message with a disposition code indicating whether the post-admission correction request was approved or denied.
Currently, PTT transactions are not permitted to be cancelled. A PTT is a
For each electronic PTT, filers receive a response with a CBP-generated PTT unique identifier (PID). This PID is required to request the cancellation of the associated PTT. Upon CBP review, the filer will receive a message with a disposition code indicating whether the PTT Cancel transaction request was approved or denied, as there can be errors encountered during processing.
The Electronic FTZ test has been running continuously since March 26, 2007. CBP will inform the public of CBP's decision to conclude the test program by way of announcement in the
Subpart C to part 146 of the CFR prescribes the conditions applicable to admission of merchandise into a foreign trade zone. To the extent that certain provisions within subpart C to part 146 may be incompatible with the terms of this test program, the affected regulatory provisions will be suspended for the duration of the test.
Eligible participants in the Electronic FTZ Admissions Application test program include: FTZ operators; FTZ Admission Applicants; Agents of FTZ Operators; and Agents of FTZ Admission Applicants. Participation in the test is voluntary and there are no application procedures.
Test participants must request permission to admit merchandise into an FTZ by electronically transmitting the CBP Form 214 data elements to CBP. The data transmission may cover a single shipment of merchandise or be a consolidated transmission that covers multiple shipments to a single zone. CBP must receive the CBP Form 214 before the merchandise can be authorized for admission into the FTZ. An exception to this requirement exists for test participants who are authorized to use the FTZ direct delivery procedures, as discussed below.
Test participants, including those approved to participate under direct delivery procedures, must comply with the prior notice reporting requirements stipulated in the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (“the Bioterrorism Act”), Public Law 107-188. Title III of the Bioterrorism Act contains provisions relating to providing the Department of Health and Human Services with prior notice regarding certain information about foods that are imported or offered for import into the United States.
As a general rule, a test participant who is also authorized to use the direct delivery procedures prescribed in 19 CFR 146.39 to admit merchandise into an FTZ may transmit the required data to CBP on an electronic CBP Form 214 no later than the close of business on the business day following receipt of the merchandise into the FTZ inventory control and recordkeeping system. With regard to the applicability of direct delivery procedures in the context of the test program, two exceptions to the above rule are noted. First, as stated above, direct delivery participants are subject to any applicable prior notice reporting requirements set forth in the Bioterrorism Act. Second, in the absence of a CBP Form 7512, or its electronic equivalent, authorizing an in-bond movement, a test participant may electronically transmit a permit to transfer request for the intra-port bonded movement of the merchandise to the FTZ site.
Under the test program, an FTZ operator will be able to transmit the following transactions via the Automated Broker Interface (ABI): Submit a permit to transfer request for merchandise coming to its FTZ Site; submit requests to cancel a specific existing permit to transfer request; submit application for admission on behalf of the applicant for imported zone status merchandise, zone status merchandise transferred from another zone, and domestic status merchandise; agree to, or refuse to, accept custodial responsibility for an admission submitted by an entity other than itself as the Operator; report arrival of merchandise to the FTZ; assume custodial responsibility for the admission authorized merchandise; submit a request on behalf of the applicant for a change of zone status on specific merchandise; and submit request for post-admission correction.
After the FTZ Operator has concurred the admission CBP will transmit statistical data to the Bureau of the Census through an automated link.
Participants in the test must provide CBP with the following data elements, which consist of the previously required data elements and the newly announced data elements:
• A code representing the action to be taken (
• The line item number.
• The Zone ID number. This zone identification number is comprised of the FTZ number designation, any Subzone or General Purpose Zone designation and a physical FTZ Site designation. Currently Zone IDs are seven characters in length. The transaction will now accommodate the expanded nine-character CBP-assigned Zone ID when its use becomes mandatory.
• The port code where the FTZ is located as shown in Schedule D, Harmonized Tariff Schedule of the United States (HTSUS).
• An indicator specifying whether the merchandise is being admitted into the FTZ under direct delivery procedures.
• The Automated Broker Interface (ABI) filer code.
• The ABI routing code and optional office extension for one additional ABI participant who will receive a copy of the electronic CBP Form 214 and subsequent electronic notifications.
• The Importer of Record Number applicant.
• An indicator specifying the admission type.
• The mode of transportation code. Valid codes are listed in Appendix B of the Customs and Trade Automated Interface Requirements (CATAIR), Pub # 0875-0419.
• The name of the conveyance (if not a vessel, the name of the transportation company).
• The vessel voyage, truck or rail trip, or aircraft flight number.
• The country of export.
• The export date. For merchandise arriving in the United States by vessel: The month, day and year on which the vessel departed the last port of the country of exportation. For merchandise exported by air: The month, day and year on which the aircraft departed the last airport of the country of exportation. For merchandise exported by truck or rail: The month, day and year in which the carrier crossed the border of the country of exportation.
• The import date. For merchandise arriving in the United States by vessel: The month, day and year on which the vessel transporting the merchandise from the foreign country arrived within the limits of the U.S. port at which the merchandise was unladen. For merchandise arriving in the United States other than by vessel: The month, day and year in which the merchandise arrived within U.S. customs territory.
• The zone admission number (which is made up of the Zone ID (described above in more detail), the two-digit calendar year (of the current year), and the control number (the unique admission designation assigned by the Applicant or Operator).
• The U.S. port of unlading (the port at which the merchandise was unladen). Valid codes are listed in Schedule D, HTSUS.
• The foreign port of lading.
• The bill of lading or airway bill number.
• The house bill number.
• The Standard Carrier Alpha Code (SCAC) identifier of the importing carrier.
• The immediate transportation (IT) number assigned to in-bond shipments and the date the CBP Form 7512 was prepared.
• The number of packages. An indication of the quantity and unit of measure (cartons, cases, bundles, etc.) in the shipment as stated in the Customs Automated Manifest Interface Requirements (CAMIR). For containerized merchandise, an indication of the number of packages within the container(s) and the container number(s). For bulk shipments, show “1 Bulk.”
• Country of origin code, provided in Annex B, ISO code, HTSUS, which represents the country of origin in which the product was manufactured, mined, or grown. Labor work or material added to an article in another country must affect a substantial transformation in order for such other country to become the actual “country of origin.” If the merchandise is from more than one country of origin, the country of origin will be indicated separately against each HTSUS subheading or group of subheadings.
• A detailed description of the merchandise at the line item level.
• The Manufacturer Identification (MID) number (as required for type 01 entries).
• The applicable HTSUS number(s).
• The statistical reporting quantity of the merchandise for each HTSUS number.
• The quota category (if applicable).
• The gross weight in kilograms of the merchandise. Supply separate gross weight information for each HTSUS subheading.
• The separate value and aggregate charges: For each HTSUS, enter the purchase price (in U.S. dollars) or, if the merchandise was not acquired by purchase, the equivalent of such price. Also, report the aggregate cost (in U.S. dollars) of freight, insurance, and all other costs, charges and expenses incurred in bringing the merchandise from alongside the carrier at the foreign port of exportation in the country of exportation in addition to unlading the merchandise at the first U.S. port of entry.
• The indicator designating a special program and country affecting duty payments (if applicable).
• If applicable, a qualifier code and reference identifier associated with the shipment. Valid qualifiers are listed in the CATAIR.
• The Harbor Maintenance Fee (if applicable).
• The zone status designation of the merchandise.
• The container number if a permit to transfer is requested.
• Concurrence data relating to the admission application.
• The Importer of Record number of the bonded carrier nominated for a permit to transfer request to move merchandise to an FTZ site.
• The Facilities Information and Resources Management Systems (FIRMS) code identifying the location where the merchandise (moving on a permit to transfer transaction) is being delivered.
• An indicator if the merchandise is subject to Bioterrorism Act of 2002 requirements.
• Under 19 CFR 12.145 and 360.101(c), the steel import license number needs to be provided on CBP Form 214 at the time of filing under 19 CFR part 146, in the case of merchandise admitted into an FTZ.
• The unique identifying number of Kimberley Process Certificate (if applicable). The Kimberley Process Certificate must be presented in connection with an importation of rough diamonds into an FTZ and exportation out of an FTZ if demanded by a CBP official pursuant to 31 CFR 592.404 and 592.301.
• For replace requests to modify a previously submitted admission while retaining the original filing date, filers must include the reason code and the contact name and contact phone number.
• To submit post-admission correction requests after an admission has been concurred (fully accepted into a zone), filers must include the reason code and the contact name and contact phone number.
• For requests to cancel a permit to transfer (PTT) transaction, filers must include a permit to transfer transaction unique identifier (PID).
• The Importer of Record Number of the Zone Operator.
• The Facilities Information and Resources Management Systems (FIRMS) code identifying the FTZ Site location where the merchandise is to be admitted.
Test participants are responsible for the accuracy and completeness of all data transmitted under the prototype.
Upon approval of an electronic FTZ admission application, CBP will transmit electronic notice to the test filer authorizing admission of the merchandise into the FTZ. As noted above, this approval process does not apply to merchandise admitted to an FTZ under direct delivery procedures.
Upon approval of an electronic request for a permit to transfer, CBP will electronically transmit approval/denial to transfer the merchandise into the FTZ electronically to the test filer, and to the carrier of the merchandise. CBP will also provide electronic notice to these parties as to whether the merchandise is subject to CBP examination. In addition, test program participants and carriers will be able to receive electronic notification concerning the status of an admission request.
A test participant whose FTZ admission application is rejected by CBP will be provided with an opportunity to correct the reported error. A complete re-transmission of the entire admission application is required by CBP.
A test participant may be subject to civil and criminal penalties, administrative sanctions, liquidated damages, and/or suspension from this test for any of the following:
• Failure to abide by the terms and conditions of this test, and any applicable laws and regulations.
• Failure to exercise reasonable care in the execution of participant obligations.
• Misuse of the automated CBP Form 214 (
The Director, Cargo Security and Control Division, will administer suspensions for misconduct. A written notice proposing suspension will be provided to the participant. Such notice will apprise the participant of the alleged facts or conduct warranting suspension and will inform the participant of the date that the suspension will begin. Any decision proposing suspension of a participant may be appealed in writing to the Executive Assistant Commissioner, Office of Field Operations, 1300 Pennsylvania Ave. NW, Washington, DC 20229, within 15 calendar days of the notification date. An appeal must address the alleged facts or conduct charges contained in the notice and state how compliance has been or will be achieved. In cases of non-payment, late payment, willful misconduct or where public health interests or safety are concerned, the suspension may be effective immediately. The same appeal procedures apply in cases of immediate suspension.
To ensure adequate feedback, participants are required to participate in an evaluation of this test. CBP also invites all interested parties to comment on the design, conduct and implementation of the test at any time during the test period. CBP will publish the final results in the
The following evaluation methods and criteria have been suggested:
Cybersecurity and Infrastructure Security Agency (CISA), Department of Homeland Security (DHS).
60-Day Notice and request for comments; New collection (Request for a new OMB Control Number, 1670-NEW.
DHS CISA Emergency Communications Division (ECD) will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted until November 24, 2020.
You may submit comments, identified by docket number CISA-2020-0010, by one of the following methods:
•
•
•
•
Comments submitted in response to this notice may be made available to the public through relevant websites. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to the public notwithstanding the inclusion of the routine notice.
For specific questions related to collection activities, please contact Ralph Barnett III at
On November 16, 2018, Congress passed Public Law 115-278, to amend the Homeland Security Act of 2002 (6 U.S.C. 101
CISA enhances public safety interoperable communications at all levels of government to help partners across the country develop their emergency communications capabilities. Working with stakeholders across the country, CISA conducts extensive, nationwide outreach to support and promote the ability of emergency response providers and relevant government officials to continue to communicate in the event of a natural disaster, act of terrorism, or other man-made disaster. Public Law 109-296, Title VI, § 671(b), Title XVIII, § 1801(c)(2) mandates DHS through CISA to administrate and manage SAFECOM, a state, local, tribal, and territorial stakeholder-driven public
Through collaboration with emergency responders and elected officials across all levels of government, SAFECOM works to improve emergency response providers' inter-jurisdictional and interdisciplinary emergency communications interoperability across local, regional, tribal, State, territorial, international borders, and with Federal government entities. SAFECOM works with existing Federal communications programs and key emergency response stakeholders to address the need to develop better technologies and processes for the coordination of existing communications systems and future networks.
The SAFECOM Membership Questionnaire is an internal SAFECOM document disseminated only to active SAFECOM Members. SAFECOM uses the Questionnaire to identify membership gaps, obtain updated information on SAFECOM's membership body (
The DHS/CISA/ECD will disseminate the SAFECOM Membership Questionnaire to active SAFECOM Members as a fillable PDF document. SAFECOM intends to use the Questionnaire to examine its Membership body, identify membership gaps obtain updated information on SAFECOM's membership body (
The Questionnaire will encompass eight interdependent sections of questions. The SAFECOM Internal Membership section requests each Member to provide their name, state of residence, and the number of hours per month he/she contributes SAFECOM led initiatives (
This is a NEW collection of information.
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Bureau of Land Management, Interior.
Notice.
The purpose of this notice is to inform the public and interested State and local government officials of the filing of Plats of Survey in Nevada.
Filing is applicable at 10:00 a.m. on the dates indicated below.
Michael O. Harmening, Chief Cadastral Surveyor for Nevada, Bureau of Land Management, Nevada State Office, 1340 Financial Blvd., Reno, NV 89502-7147, phone: 775-861-6490. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS 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.
1. The Plat of Survey of the following described lands was officially filed at the Bureau of Land Management (BLM) Nevada State Office, Reno, Nevada, on September 15, 2020.
The plat, in one sheet, representing the dependent resurvey of a portion of the east boundary, a portion of the subdivisional lines and a portion of Homestead Entry Survey No. 68, and the subdivision of sections 13 and 24, and a metes-and-bounds survey of a portion of the easterly right-of-way line of Nevada State Route No. 225, Township 45 North, Range 53 East, Mount Diablo Meridian, Nevada, under Group No. 982, was accepted September 10, 2020. This survey was executed to meet certain administrative needs of the Bureau of Land Management, the United States Forest Service, and the Bureau of Indian Affairs.
2. The Plat of Survey of the following described lands was officially filed at the Bureau of Land Management (BLM) Nevada State Office, Reno, Nevada, on September 17, 2020.
The plat, in one sheet, representing the dependent resurvey of portions of the subdivision-of-section lines of section 7 and a portion of the metes-and-bounds survey in section 7, and the further subdivision of section 7, and metes-and-bounds surveys in section 7, Township 15 South, Range 66 East, Mount Diablo Meridian, Nevada, under Group No. 977, was accepted September 15, 2020. This survey was executed to meet certain administrative needs of the Bureau of Land Management.
3. The Plat of Survey of the following described lands will be officially filed at the Bureau of Land Management (BLM) Nevada State Office, Reno, Nevada, on the first business day after thirty (30) days from the publication of this notice.
The plat, in three sheets, representing the dependent resurvey of portions of the south and east boundaries and a portion of the subdivisional lines, and a metes-and-bounds survey of the easterly right-of-way line of U.S. Highway No. 95, through sections 23, 25, 26, and 36, Township 17 South, Range 58 East, Mount Diablo Meridian, Nevada, under Group No. 945, was accepted August 10, 2020. This survey was executed to meet certain administrative needs of the Bureau of Land Management and the National Park Service.
4. The Plat of Survey of the following described lands will be officially filed at the Bureau of Land Management (BLM) Nevada State Office, Reno, Nevada, on the first business day after thirty (30) days from the publication of this notice.
The plat, in one sheet, representing the dependent resurvey of a portion of the south boundary and a portion of the subdivisional lines, and a metes-and-bounds survey of the easterly right-of-way line of U.S. Highway No. 95, through section 31, Township 17 South, Range 59 East, Mount Diablo Meridian, Nevada, under Group No. 945, was accepted August 10, 2020. This survey was executed to meet certain administrative needs of the Bureau of Land Management and the National Park Service.
5. The Plat of Survey of the following described lands will be officially filed at the Bureau of Land Management (BLM) Nevada State Office, Reno, Nevada, on the first business day after thirty (30) days from the publication of this notice.
The plat, in twelve (12) sheets, representing the dependent resurvey of a portion of the west boundary and a portion of the subdivisional lines, and the subdivision of certain sections, a metes-and-bounds survey of the easterly right-of-way line of U.S. Highway No. 95, through sections 6 and 7, and a portion of section 8, and a metes-and-bounds survey of the Red Rock Canyon National Conservation Area boundary through a portion of section 7 and through sections 8, 16, 17, and 21, Township 18 South, Range 59 East, Mount Diablo Meridian, Nevada, under Group No. 945, was accepted August 10, 2020. This survey was executed to meet certain administrative needs of the Bureau of Land Management and the National Park Service.
6. The Plat of Survey of the following described lands will be officially filed at the Bureau of Land Management (BLM) Nevada State Office, Reno, Nevada, on the first business day after thirty (30) days from the publication of this notice.
The plat, in two sheets, representing the dependent resurvey of a portion of Homestead Entry Survey No. 167, and the survey of a portion of the south boundary and a portion of the subdivisional lines, and the subdivision of sections 18 and 19, Township 45 North, Range 54 East, Mount Diablo Meridian, Nevada, under Group No. 984, was accepted September 10, 2020. This survey was executed to meet certain administrative needs of the Bureau of Land Management, the United States Forest Service, and the Bureau of Indian Affairs.
7. The Plat of Survey of the following described lands will be officially filed at the Bureau of Land Management (BLM) Nevada State Office, Reno, Nevada, on the first business day after thirty (30) days from the publication of this notice.
The plat, in one sheet, representing the dependent resurvey of a portion of the south boundary, a portion of the subdivisional lines and portions of the subdivision-of-section lines of section 32, and the further subdivision of section 32, Township 18 South, Range 60 East, Mount Diablo Meridian, Nevada, under Group No. 994, was accepted September 15, 2020. This survey was executed to meet certain administrative needs of the Bureau of Land Management.
The surveys, listed above, are now the basic record for describing the lands for all authorized purposes. These records have been placed in the open files in the BLM Nevada State Office and are available to the public as a matter of information.
43 U.S.C. Chapter 3.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) has examined and found suitable for classification to convey 227.5 acres of public land to Park County under the provisions of the Recreation and Public Purposes (R&PP) Act, as amended. As a political subdivision of the State of Wyoming, Park County is a qualified applicant under the R&PP Act. Park County has not applied for more than 6,400-acres for recreation uses in a year, nor for more than 640 acres for each of the programs involving public resources other than recreation, as required by the R&PP Act.
Submit written comments regarding this proposed classification and conveyance on or before November 9, 2020. The BLM will not consider comments received by telephone or email.
Mail written comments to the Field Manager, BLM Cody Field Office, 1002 Blackburn Street, Cody, Wyoming, 82414. Comments may be mailed or hand delivered to the Cody Field Office. Information including, but not limited to, a proposed development
Cara Blank, Realty Specialist, by telephone at 307-578-5912. Persons who use a telecommunications device for the deaf may call the Federal Relay Service (FRS) at 1-800-877-8339 to leave a message or question for the above individual. The FRS is available 24 hours a day, 7 days a week. You will receive a reply during normal business hours.
Park County has submitted a statement in compliance with the regulations at 43 CFR 2741.4(b). Park County proposes to use the land for operating and maintaining an expansion of an existing public shooting range facility.
Park County has filed an application for patent of the following described lands. The lands examined and identified as suitable for conveyance under the R&PP Act are described as:
The area described contains 227.5 acres.
These lands are currently withdrawn for use by the Bureau of Reclamation. Consent to convey these lands was received from the Bureau of Reclamation on April 10, 2019. The lands are not needed for any Federal purposes.
Conveyance of the lands for recreational or public purposes use is in conformance with the BLM Cody Field Office Resource Management Plan dated September 2015 and is in the public interest. The BLM conducted a Phase I environmental site assessment in July 2019. No evidence of recognized environmental conditions was identified on the parcel.
All interested parties will receive a copy of this notice once it is published in the
Upon publication of this notice in the
The conveyance documents, when issued, will require the lands to be conveyed to remain subject to valid existing rights. The conveyance documents will contain the terms, conditions and reservations listed below, as well as any additional terms or conditions required by law, including any required by 43 CFR 2741.5. The conveyance will reserve to the United States:
1. Rights-of-way thereon for ditches and canals constructed by the authority of the United States Act of August 30, 1890 (26 Stat. 391; 43 U.S.C. 945).
2. Provisions of the R&PP Act and to all applicable regulations of the Secretary of the Interior.
3. All mineral deposits, including saleable sand and gravel, in the land so patented, shall be reserved to the United States, together with the right to prospect for, mine and remove such deposits from the same under applicable law and such regulations as the Secretary of the Interior may prescribe, including all necessary access and exit rights.
4. Except as provided in provision 7 below, title shall revert to the United States upon a finding, after notice and opportunity for a hearing, that, without the approval of the Secretary of the Interior or his delegate, the patentee or its approved successor attempts to transfer title to or control over the lands to another, the lands have been devoted to a use other than that for which the lands were conveyed, the lands have not been used for the purpose for which the lands were conveyed for a 5-year period, or the patentee has failed to follow the approved development plan or management plan.
5. An appropriate indemnification clause protecting the United States from claims arising out of the patentee's use, occupancy, or occupation on the leased/patented lands.
6. If, at any time, the patentee transfers to another party ownership of any portion of the land not used for the purpose(s) specified in the application and approved plan of development, the patentee shall pay the BLM the fair market value, as determined by the authorized officer, of the transferred portion as of the date of transfer, including the value of any improvements thereon.
7. No portion of the land shall under any circumstances revert to the United States if any such portion has been used for a shooting range or any other purpose which may result in the disposal, placement or release of any hazardous substance.
Classification Comments: Interested persons may submit comments involving the suitability of the land for development and use as a shooting range. Comments on the classification are restricted to whether the land is physically suited for the proposal, whether the use will maximize the future use or uses of the land, whether the use is consistent with local planning and zoning, or if the use is consistent with state and Federal programs.
Application Comments: Interested persons may submit comments regarding the specific use proposed in the application and plan of development and management, and whether the BLM followed proper administrative procedures in reaching the decision to convey under the R&PP Act.
Any adverse comments will be reviewed by the BLM Wyoming State Director or other authorized official of the Department of the Interior, who may sustain, vacate, or modify this realty action. In the absence of any adverse comments, the classification will become effective on November 24, 2020. The lands will not be offered for conveyance until after the classification becomes effective.
Before including your address, phone number, email address or other personal identifying information in any comment, 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.
43 CFR 2741.5.
National Park Service, Interior.
Notice of Information Collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the National Park Service (NPS) are proposing to renew an information collection.
Interested persons are invited to submit comments on or before November 24, 2020.
Send your comments on this information collection request (ICR) by mail to Phadrea Ponds, NPS Information Collection Clearance Officer,1201 Oakridge Drive Fort Collins, CO 80525; or by email at
To request additional information about this ICR, contact Karen Mudar, Archeologist, Washington Support Office Archeology Program by email at
In accordance with the Paperwork Reduction Act of 1995, (PRA, 44 U.S.C. 3501
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) Is Whether or not the collection of information is necessary for the proper performance of the functions of the NPS, 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 NPS minimize the burden of this collection on the respondents, 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.
Persons receiving a permit must also submit (1) Preliminary Reports (2) Annual Reports (3) Final Reports.
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
National Park Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the National Park Service (NPS) are proposing to renew an information collection.
Interested persons are invited to submit comments on or before November 24, 2020.
Send your comments on this information collection request (ICR) by mail to Phadrea Ponds, NPS Information Collection Clearance Officer, National Park Service, 1201 Oakridge Drive Fort Collins, CO 80525; or by email to
To request additional information about this ICR, contact Seth Tinkham, Grants Management Specialist, State, Tribal, Local, Plans & Grants Division or by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501
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.
Each year Congress directs the NPS to use part of the annual appropriation from the Historic Preservation Fund (HPF) for the State grant program and the Tribal grant programs to assist States and Tribes in carrying out their statutory role in the National Historic Preservation Program. Through competitive grant programs, Congress also directs NPS to provide financial assistance to a variety of eligible grant recipients to support the broad cultural resource mandates of the National Historic Preservation Act and for other purposes.
The information from this collection is required to evaluate whether or not State, Tribal, and local governments meet minimum standards and requirements for participation in the National Historic Preservation Program; and to meet program specific requirements as well as government- wide requirements for Federal grant programs.
The NPS uses the information collected to ensure compliance with the National Historic Preservation Act, as well as government-wide grant requirements issued and implemented through 43 CFR part 12 and 2 CFR 200.
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
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part a final initial determination (“FID”) of the presiding administrative law judge (“ALJ”) finding a violation of section 337 of the Tariff Act of 1930, as amended. The Commission also requests written submissions, under the schedule set forth below, on remedy, the public interest, and bonding.
Houda Morad, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-4716. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
On March 6, 2019, the Commission instituted this investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), based on a complaint filed by Medytox Inc. of Seoul, South Korea; Allergan plc of Dublin, Ireland; and Allergan, Inc. of Irvine, California (collectively, “Complainants”).
On July 6, 2020, the ALJ issued the FID finding a violation of section 337 based on the importation into the United States, the sale for importation, or the sale within the United States after importation of certain botulinum neurotoxin products by reason of the misappropriation of trade secrets, the threat or effect of which is to destroy or substantially injure an industry in the United States.
The FID also includes a recommended determination (“RD”) recommending that, if a violation is found, the Commission issue: (1) A limited exclusion order barring entry of certain botulinum toxin products that are imported, sold for importation, and/or sold after importation by respondents Daewoong and Evolus; and (2) a cease and desist order against Evolus. The RD also recommends that the Commission impose a bond based on price differential during the period of Presidential review.
On July 20, 2020, Respondents filed a petition for Commission review of the FID. On July 28, 2020, Complainants and OUII filed responses to Respondents' petition. On September 18, 2020, Respondents filed a motion for leave to file a notice of new factual development. The Commission has determined to accept Respondents' filing.
The Commission has determined to review the FID in part. Specifically, the Commission has determined to review the FID's findings with respect to subject matter jurisdiction, standing, trade secret existence and misappropriation, and domestic industry, including the existence of such domestic industry as well as any actual or threatened injury thereto. The Commission has determined not to review the remainder of the FID. The Commission has also determined to allow Complainants to respond to Respondents' notice of new factual development in their written submissions to the Commission pursuant to the present notice.
In connection with its review, the Commission requests that the parties brief their positions with reference to the applicable law and the evidentiary record regarding the following questions:
1. Describe the differences between the Medytox strain and other Hall A-hyper strains and explain the relevance of those differences to Complainants' trade secrets misappropriation claim.
2. Discuss the availability in the marketplace of Hall A-hyper strains since Dr. Hall's discovery in the 1920s and the U.S. Army's development in the 1940s (
3. For the alleged domestic industry costs regarding activities related to regulatory approvals and compliance (including costs for activities such as relevant research and development or testing): (A) Which of those regulatory activities are of a nature that can only be performed in the United States (for either legal or practical reasons), and which could have been carried out in another country; and (B) does the record permit allocation of costs between those two categories?
4. What is the federal legal standard for determining what constitutes a misappropriation of trade secrets sufficient to establish an “unfair method of competition” under Section 337?
5. Is injury to the complainant an element of a federal trade secret misappropriation cause of action that is necessary to establish an “unfair method of competition” under Section 337(a)(1)(A) (distinct from the “threat or effect” requirements of Section 337(a)(1)(A)(i)-(iii))?
6. Please explain whether, consistent with the federal common law, the injury requirement discussed in the FID (
In seeking briefing on these issues, the Commission has not determined to excuse any party's noncompliance with Commission rules and the ALJ's procedural requirements, including requirements to present issues in submissions to the ALJ and in petitions for Commission review. The Commission may, for example, decline to disturb certain findings in the FID upon finding that issue was not presented in a timely manner to the ALJ or to the Commission.
In addition, in connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in the respondent(s) being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background,
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve, disapprove, or take no action on the Commission's determination.
Written submissions and proposed remedial orders must be filed no later than close of business on October 9, 2020. Reply submissions must be filed no later than the close of business on October 16, 2020. Initial written submissions may not exceed 60 pages in length, exclusive of any exhibits, while reply submissions may not exceed 30 pages in length, exclusive of any exhibits. No further submissions on any of these issues will be permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. The Commission's paper filing requirements in 19 CFR 210.4(f) are currently waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the investigation number (“Inv. No. 337-TA-1145”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
The Commission's vote on this determination took place on September 21, 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).
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection (IC) is also being published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for 60 days until November 24, 2020.
If you have additional comments, regarding the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530.
On September 22, 2020, the Department of Justice lodged a proposed Consent Decree and Settlement Agreement Regarding the Non-Performing Properties (“Settlement Agreement”) with the United States Bankruptcy Court for the District of Delaware in the matter entitled
The United States, on behalf of the Environmental Protection Agency, lodged this Settlement Agreement with Exide Holdings, Inc. and its Debtor Affiliates (collectively the “Debtors”), the Florida Department of Environmental Protection, the Georgia Environmental Protection Division of the Department of Natural Resources, the Illinois Environmental Protection Agency, the State of Indiana on Behalf of Indiana Department of Environmental Management, the Louisiana Department of Environmental Quality, the Mississippi Department of Environmental Quality, the Commonwealth of Pennsylvania Department of Environmental Protection, the South Carolina Department of Health & Environmental Control, the Tennessee Department of Environment and Conservation, and the Texas Commission on Environmental Quality, Westchester Fire Insurance Company, the Environmental Trustee, the Consenting Creditors, the Transferred Entities, the Europe/ROW Purchaser, and the Trustees, each of which are defined in the Settlement Agreement.
The Settlement Agreement relates to the Debtors' Non-Performing Properties and will be incorporated into Debtors' proposed Chapter 11 Plan. The Settlement Agreement contains covenants not to sue and reservations under the Resource Conservation and Recovery Act, 42 U.S.C. 6901
The Settlement Agreement requires, among other provisions, the Debtors to transfer certain properties to an environmental response trust or trusts which will be created pursuant to the agreement; certain secured creditors to make, or cause to be made, up to $10,000,000 in payments to the environmental response trusts; and Westchester Fire Insurance Company to pay the full penal sum of certain surety bonds it issued of up to approximately $34.7 million for environmental liabilities for certain of the Non-Performing Properties.
The publication of this notice opens a period for public comment on the Settlement Agreement. Comments should be addressed to the Section Chief, Environmental Enforcement Section, and should refer to
Under section 7003(d) of RCRA, a commenter may request an opportunity for a public meeting in the affected area.
During the public comment period, the Settlement Agreement may be examined and downloaded at this Justice Department website:
Consent Decree Library, U.S. DOJ— ENRD, P.O. Box 7611, Washington, DC 20044-7611.
Please enclose a check or money order for $80.50 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits and signature pages, the cost is $21.00.
Office of Attorney Recruitment and Management, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Justice Management Division, Office of Attorney Recruitment and Management (OARM), will be submitting this information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The information collection is a Request for Corrective Action Form, available on OARM's public website, for current and former employees of, or applicants for employment with, the Federal Bureau of Investigation (FBI) who wish to file a claim of whistleblower reprisal.
Comments are encouraged and will be accepted for 30 days until October 26, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1) Type of information collection: Extension.
(2) Title of Form/Collection: Request for Corrective Action Form
(3) The agency form number, if any/the applicable component of the department sponsoring the collection: No form number/Office of Attorney Recruitment and Management, Justice Management Division, U.S. Department of Justice.
(4) Affected Public who will be asked or required to respond, as well as a brief abstract: Individuals. The application form is submitted voluntarily by individuals who are current or former employees of, or applicants for employment with, the FBI who allege reprisal for their whistleblowing activities.
(5) An estimate of the total number of respondents and the amount of time estimated to respond/reply: An average of 15 respondents per year, and an average of three hours to complete the form.
(6) An estimate of the total public burden (in hours) associated with the collection: About 45 hours.
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530.
Federal Bureau of Investigation, Department of Justice.
60-day notice.
Department of Justice (DOJ), Federal Bureau of Investigation, Criminal Justice Information Services Division will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until November 24, 2020.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gerry Lynn Brovey, Supervisory Information Liaison Specialist, FBI, CJIS, Resources Management Section, Administrative Unit, Module C-2, 1000 Custer Hollow Road, Clarksburg, West Virginia, 26306 (telephone: 304-625-5093) or email
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
National Aeronautics and Space Administration (NASA).
Notice of Centennial Challenges Watts on the Moon Challenge Phase 1.
The Watts on the Moon Challenge is open and teams that wish to compete may now register. Centennial Challenges is a program of prize competitions to stimulate innovation in technologies of interest and value to NASA and the nation. The Watts on the Moon Challenge is a prize competition with up to a $5,000,000 USD total prize purse to incentivize advances in lunar power distribution, energy storage, and/or power management. At this time, NASA is opening Phase 1 of the competition, which has a $500,000 USD prize purse. In this phase of competition, teams will develop concept proposals for technologies to address one or more “mission activities” in a hypothetical mission scenario based on anticipated mission operations and environmental features of human and robotic exploration of the lunar surface. NASA is funding the prize purse and administration of the challenge competition.
Phase 1 registration opens September 25, 2020 and will remain open until March 25, 2021. No further requests for registration will be accepted after this date.
Other important dates:
The Watts on the Moon Challenge Phase 1 will be conducted virtually. The Challenge competitors will develop and submit their concept proposals from their own location.
To register for or get additional information regarding the Watts on the Moon Challenge, please visit:
For general information on the NASA Centennial Challenges Program please visit:
In the first phase of competition, teams will develop concept proposals for technologies to address one or more “mission activities” in a hypothetical mission scenario based on anticipated mission operations and environmental features of human and robotic exploration of the lunar surface. The Mission Scenario and the three associated Mission Activities are based on anticipated mission operations and environmental features of human and robotic exploration of the lunar surface. The characteristics of the Mission Scenario are purposefully intended to incentivize a wide variety of innovative technology solutions to the overall challenge of high capacity, adaptable, and reliable lunar power distribution and management systems that will be critical to the well-being and productivity of human crew and fledgling lunar surface industries.
The three Mission Activities present different combinations of power or energy capacity, distance between energy sources and the site of activity operations, mobility features, system mass limitations, and operational duty cycles that must be accommodated by teams. The activities each specify distinct operational consumption of electrical and/or thermal energy but are open to solutions that involve conversion between one and the other. The activities are intended to be essentially independent of the nature of the energy source employed, but competitive solutions will involve identifying and incorporating assumptions about an energy source into their concept.
The Watts on the Moon Challenge total prize purse is up to $5,000,000 USD (five million dollars) to be awarded across two (2) phases of competition.
Prize purse for Phase 1 will total up to $500,000. Up to three (3) winning teams, as determined by the Judging Panel, will be awarded $100,000 each. Up to four (4) runner-up teams will receive up to $50,000 each.
The Prize Purse for Phase 2, should there be promising submissions in Phase 1 that demonstrate a viable approach, will be worth up to $4,500,000.
To be eligible to win a prize:
• Individuals must be U.S. citizens or permanent residents of the United States and be 18 years of age or older.
• Organizations must be an entity incorporated in and maintaining a primary place of business in the United States.
• Teams must be comprised of otherwise eligible individuals or organizations and led by an otherwise eligible individual or organization.
The eligibility requirements can be found on the official challenge site:
The complete rules for the Watts on the Moon Challenge, can be found at:
National Science Foundation.
Submission for OMB Review; Comment Request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314, or send email to
Copies of the submission may be obtained by calling 703-292-7556.
NSF 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 infor Title of Collection: Graduate Research Fellowship Program.
The National Science Foundation Act of 1950, as subsequently amended, includes a statutory charge to “. . . provide a central clearinghouse for the collection, interpretation, and analysis of data on scientific and engineering resources, and to provide a source of information for policy formulation by other agencies of the Federal Government.” The NSCG is designed to comply with these mandates by providing information on the supply and utilization of the nation's scientists and engineers.
The U.S. Census Bureau, as in the past, will conduct the NSCG for NSF. The survey data collection will begin in February 2021 using web and mail questionnaires. Nonrespondents to the web or mail questionnaire will be followed up by computer-assisted telephone interviewing. The individual's response to the survey is voluntary. The survey will be conducted in conformance with Census Bureau statistical quality standards and, as such, the NSCG data will be afforded protection under the applicable Census Bureau confidentiality statutes.
Nuclear Regulatory Commission.
NUREG; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing NUREG-1122, Revision 3, “Knowledge and Abilities Catalog for Nuclear Power Plant Operators: Pressurized Water Reactors,” and NUREG-1123, Revision 3, “Knowledge and Abilities Catalog for Nuclear Power Plant Operators: Boiling Water Reactors.”
NUREG-1122, Revision 3 and NUREG-1223, Revision 3 take effect on September 25, 2020.
Please refer to Docket ID NRC-2017-0068 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
Brian Tindell, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-2026, email:
The NRC published a notice of the availability of the drafts of NUREG-1122 and NUREG-1123 in the
NUREG-1122, Rev. 3 and NUREG-1123, Rev. 3 provide the basis for the development of content-valid examinations used for the licensing of operators at nuclear power plants under the NRC's regulations contained in title 10 of the
For the Nuclear Regulatory Commission.
In accordance with the purposes of Sections 29 and 182b of the Atomic Energy Act (42 U.S.C. 2039, 2232b), the Advisory Committee on Reactor Safeguards (ACRS) will hold meetings on October 8-10, 2020. As part of the coordinated government response to combat the COVID-19 public health emergency, the Committee will conduct virtual meetings. The public will be able to participate in any open sessions via 1-866-822-3032, pass code 8272423#.
Procedures for the conduct of and participation in ACRS meetings were published in the
An electronic copy of each presentation should be emailed to the Cognizant ACRS Staff at least one day before meeting.
In accordance with Subsection 10(d) of Public Law 92-463 and 5 U.S.C. 552b(c), certain portions of this meeting may be closed, as specifically noted above. Use of still, motion picture, and television cameras during the meeting may be limited to selected portions of the meeting as determined by the Chairman. Electronic recordings will be permitted only during the open portions of the meeting.
ACRS meeting agendas, meeting transcripts, and letter reports are available through the NRC Public Document Room (PDR) at
Video teleconferencing service is available for observing open sessions of ACRS meetings. Those wishing to use this service should contact Thomas Dashiell, ACRS Audio Visual Technician (301-415-7907), between 7:30 a.m. and 3:45 p.m. (Eastern Time), at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
Postal Regulatory Commission.
Notice.
The Commission is acknowledging a recent Postal Service filing concerning the addition of a new product, International Competitive Multi-Service Commercial Contracts 1, to the competitive product list within the Mail Classification Schedule (MCS). This document informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's
David A. Trissell, General Counsel, at 202-789-6820.
On September 18, 2020, the Postal Service filed a request to add a new product, International Competitive Multi-Service Commercial Contracts 1, to the competitive product list within the Mail Classification Schedule (MCS), pursuant to 39 U.S.C. 3642 and 39 CFR 3040.130-135.
Under this process, the Postal Service proposes to file almost all future customized outbound international NSAs within the International Competitive Multi-Service Commercial Contracts 1 product.
The Postal Service asserts that the Commission is capable of achieving this objective.
To support its Request, the Postal Service filed a redacted version of Governors' Decision No. 19-1,
The Commission establishes Docket Nos. MC2020-252 and CP2020-282 for consideration of matters raised by the Notice and appoints Katalin K. Clendenin to serve as Public Representative in this docket.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3642 and 39 CFR 3040.130-135. Comments are due no later than October 5, 2020. The public portions of the filing can be accessed via the Commission's website (
It is ordered:
1. The Commission establishes Docket Nos. MC2020-252 and CP2020-282 for consideration of the matters raised by the Postal Service's Request.
2. Pursuant to 39 U.S.C. 505, Katalin K. Clendenin is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than October 5, 2020.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add International Competitive Multi-Service Commercial Contracts 1 to the list of Negotiated Service Agreements in the Competitive Product List in the Mail Classification Schedule.
Christopher C. Meyerson, (202) 268-7820.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642, on September 18, 2020, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend the MIAX Emerald Fee Schedule (the “Fee Schedule”).
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Section 1)a)i) of the Fee Schedule to lower the Simple Maker (as defined below) rebates in Tier 4 for options transactions in Penny classes and non-Penny classes (as defined below) for executed Priority Customers
The proposed change is scheduled to become operative September 8, 2020.
The Exchange currently assesses transaction rebates and fees to all market participants which are based upon a threshold tier structure (“Tier”) that is applicable to transaction fees. Tiers are determined on a monthly basis and are based on three alternative calculation methods, as defined in Section 1)a)ii) of the Fee Schedule. The calculation method that results in the highest Tier achieved by the Member shall apply to all Origin types by the Member. The monthly volume thresholds for each method, associated with each Tier, are calculated as the total monthly volume executed by the Member in all options classes on MIAX Emerald in the relevant Origins and/or applicable liquidity, not including Excluded Contracts,
Currently, transaction rebates and fees for Penny and non-Penny classes are assessed according to the following tables:
The Exchange now proposes to lower the Simple Maker rebates in Tier 4 for options transactions in Penny classes and non-Penny classes for executed Priority Customers orders when the contra is an Affiliated Market Maker. Specifically, the Exchange proposes to lower the Simple Maker rebate for executed Priority Customer orders in options in Penny classes in Tier 4 from ($0.53) to ($0.49) when the contra is an Affiliated Market Maker. The Exchange also proposes to lower the Simple Maker rebate for executed Priority Customer orders in options in non-Penny classes in Tier 4 from ($1.05) to ($0.95) when the contra is an Affiliated Market Maker.
In order to differentiate between the proposed lower Tier 4 Simple Maker rebate in Penny and non-Penny classes when the contra is an Affiliated Market Maker, the Exchange proposes to insert two new symbols after the symbol “▽”
The purpose of adjusting the specified Simple Maker rebates is for business and competitive reasons. In order to attract order flow, the Exchange initially set its Maker rebates and Taker fees so that they were meaningfully higher/lower than other options exchanges that operate comparable maker/taker pricing models.
With the proposed changes, Section 1)a)i) of the Fee Schedule will be as follows:
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
There are currently 16 registered options exchanges competing for order flow. Based on publicly-available information, and excluding index-based options, no single exchange has more than approximately 16% market share.
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can discontinue or reduce use of certain categories of products and services, terminate an existing membership or determine to not become a new member, and/or shift order flow, in response to transaction fee changes. For example, on February 28, 2019, the Exchange's affiliate, MIAX PEARL, LLC (“MIAX PEARL”) filed with the Commission a proposal to increase Taker fees in certain Tiers for options transactions in certain Penny classes for Priority Customers and decrease Maker rebates in certain Tiers for options transactions in Penny classes for Priority Customers (which fee was to be effective March 1, 2019).
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes its proposal to decrease its Simple Maker rebates in Tier 4 for options transactions in Penny and non-Penny classes for Priority Customers orders when trading contra to an Affiliated Market Maker provides for the equitable allocation of reasonable dues and fees and is not unfairly discriminatory for the following reasons. The Exchange operates in a highly competitive market. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
There are currently 16 registered options exchanges competing for order flow. Based on publicly-available information, and excluding index-based options, no single exchange has more than approximately 16% of the market share of executed volume of multiply-listed equity and ETF options trades based on the reported trade volumes for the month of August.
The Exchange believes that the ever-shifting market shares among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue or reduce use of certain categories of products, in response to transaction and/or non-transaction fee changes. For example, on February 28, 2019, the Exchange's affiliate, MIAX PEARL, filed with the Commission a proposal to increase Taker fees in certain Tiers for options transactions in certain Penny classes for Priority Customers and decrease Maker rebates in certain Tiers for options transactions in Penny classes for Priority Customers (which fee was to be effective March 1, 2019).
The Exchange believes its proposal to decrease the Simple Maker rebates in Tier 4 for options transactions in Penny and non-Penny classes for Priority Customers is reasonable, equitable and not unfairly discriminatory because all similarly situated market participants in the same Origin type are subject to the same tiered Maker rebates and Taker fees and access to the Exchange is offered on terms that are not unfairly discriminatory. The Exchange believes it is equitable and not unfairly discriminatory to reduce the Simple Maker rebates to Priority Customer orders in Penny and non-Penny classes for competitive and business reasons because the Exchange initially set its Simple Maker rebates for such orders higher than certain other options exchanges that operate comparable maker/taker pricing models.
Furthermore, the proposed decrease to the Simple Maker rebates for Priority Customers promotes just and equitable principles of trade, fosters cooperation and coordination with persons engaged in facilitating transactions in securities,
The Exchange does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed changes in the specified Simple Maker rebates for the applicable market participants should continue to encourage the provision of liquidity that enhances the quality of the Exchange's market and increases the number of trading opportunities on the Exchange for all participants who will be able to compete for such opportunities. The proposed rule changes should enable the Exchange to continue to attract and compete for order flow with other exchanges. However, this competition does not create an undue burden on competition but rather offers all market participants the opportunity to receive the benefit of competitive pricing.
The proposed decreases for certain Simple Maker rebates are intended to keep the Exchange's fees highly competitive with those of other exchanges, and to encourage liquidity and should enable the Exchange to continue to attract and compete for order flow with other exchanges. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, the Exchange must continually adjust its rebates and fees to remain competitive with other exchanges and to attract order flow. The Exchange believes that the proposed rule changes reflect this competitive environment because they modify the Exchange's fees in a manner that encourages market participants to continue to provide liquidity and to send order flow to the Exchange.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Each year the Commission receives several thousand contacts from investors who have complaints or questions on a wide range of investment-related issues. To make it easier for the public to contact the agency electronically, the Commission's Office of Investor Education and Advocacy (“OIEA”) created an electronic form (the Investor Form) that provides drop down options to choose from in order to categorize the investor's complaint or question, and may also
The dual purpose of the Investor Form is to make it easier for the public to contact the agency with complaints, questions, tips, or other feedback and to streamline the workflow of Commission staff that record, process, and respond to investor contacts. Investors who submit complaints, ask questions, or provide tips do so voluntarily. Although the Investor Form provides a structured format for incoming investor correspondence, the Commission does not require that investors use any particular form or format when contacting the agency. Investors who choose not to use the Investor Form will receive the same level of service as those who do.
OIEA receives approximately 20,000 contacts each year through the Investor Form. Investors who choose not to use the Investor Form receive the same level of service as those who do. The Commission uses the information that investors supply on the Investor Form to review and process the contact (which may, in turn, involve responding to questions, processing complaints, or, as appropriate, initiating enforcement investigations), to maintain a record of contacts, to track the volume of investor complaints, and to analyze trends.
The staff of the Commission estimates that the total reporting burden for using the Investor Form is 5,000 hours. The calculation of this estimate depends on the number of investors who use the forms each year and the estimated time it takes to complete the forms: 20,000 respondents × 15 minutes = 5,000 burden hours.
Members of the public should be aware that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless a currently valid OMB control number is displayed.
The public may view background documentation for this information collection at the following website: <
3:15 p.m. on Tuesday, September 29, 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.
On June 12, 2020, Cboe Exchange, Inc. (the “Exchange” or “CBOE”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 5.24 regarding the Exchange's business continuity and disaster recovery plans. Specifically, Rule 5.24(e) provides that if the Exchange trading floor becomes inoperable, the Exchange will continue to operate in a screen-based only environment using a floorless configuration of the system that is operational while the trading floor facility is inoperable. The Exchange would operate using that configuration only until the Exchange's trading floor facility became operational.
On March 16, 2020, the Exchange suspended open outcry trading to help prevent the spread of COVID-19.
In the program, the Exchange would create “virtual trading pits,” in each of which the Exchange would determine which options class(es) would be available for trading.
Proposed Rule 5.24(e)(3) states that all rules related to open outcry trading, including those in Chapter 5, Section G,
• References in the rules to the “floor,” “trading floor,” and “Exchange floor” (and any other terms with the same meaning) would be deemed to refer to the “virtual trading floor.”
• References in the rules to “pit,” “trading station,” and “trading post” (and any other terms with the same meaning) would be deemed to refer to a “virtual trading pit.”
• References in the rules to “physical presence” (any other terms with the same meaning) in a pit or on the trading floor would be deemed to refer to “presence” in a virtual trading pit or on the virtual trading floor, respectively.
• The terms “in-crowd market participant” and “ICMP” mean a Market-Maker, a Designated Primary Market-Maker (“DPM”) or Lead Market-Maker (“LMM”) with an allocation in a class, or a Floor Broker or PAR Official representing an order in a virtual pit on the virtual trading floor.
• References to an “on-floor DPM” or “on-floor LMM” would be deemed to refer to a DPM or LMM, respectively, in a virtual pit for its allocated class(es).
In addition, proposed Rule 5.24(e) states that the temporary rules set forth in Rule 5.24(e)(1) would not be applicable to trading in classes in which the Exchange makes a virtual trading
The Exchange represents that access to the virtual trading floor would be substantially similar to access to the physical trading floor.
Proposed Rule 5.24(e)(3)(C) states that TPHs may use any equipment (
Proposed Rule 5.24(e)(3)(d) provides that the Exchange may determine to require any Market-Maker or Floor Broker in a virtual trading pit that wants to trade against an order represented for execution to express its bid or offer in a chat available in the virtual trading pit.
The Exchange represents that TPHs participating on the virtual trading floor would be subject to the same regulatory requirements on the virtual trading floor as they are on the physical trading floor, including those set forth in Chapters 8 and 9.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
The Commission is instituting proceedings to further consider the proposal and the issues raised by the commenter on the proposal as it determines whether the proposed virtual trading floor is consistent with the Act and the rules and regulations thereunder.
Specifically, the Commission is providing notice of the following
• Whether the Exchange has demonstrated how its proposal is consistent with Section 6(b)(5) of the Act,
• Whether the Exchange has demonstrated how its proposal is consistent with Section 6(b)(8) of the Act,
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.”
For the reasons discussed above, the Commission believes it is appropriate to institute proceedings pursuant to Section 19(b)(2)(B) of the Act to allow for additional consideration of the issues raised by the proposal as it determines whether the proposal should be approved or disapproved.
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the concerns identified above, as well as any others they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposed rule change, as modified by Amendment No. 2, is inconsistent with Section 6(b)(5)
Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change, as modified by Amendment No. 2, should be approved or disapproved by October 16, 2020. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by October 30, 2020.
The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposed rule change, in addition to any other comments they may wish to submit about the proposed rule change. In particular, the Commission seeks comment on the statements of the Exchange contained in Amendment No. 2,
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17g-1, Form NRSRO and the Instructions to Form NRSRO contain certain recordkeeping and disclosure requirements for NRSROs. Currently, there are 9 credit rating agencies registered as NRSROs with the Commission. Based on staff experience, the Commission estimates that the revised ongoing annual burden for respondents to comply with Rule 17g-1 and Form NRSRO remains at 275 hours, but with a decrease in industry total hours to 2,475 hours, reflecting the decrease in registered entities. In addition, the Commission estimates an industry-wide annual external cost to NRSROs of $3,600 to comply with the requirements.
An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17g-2, “Records to be made and retained by nationally recognized statistical rating organizations,” implements the Commission's recordkeeping rulemaking authority under Section 17(a) of the Exchange Act.
An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
The public may view background documentation for this information collection at the following website: <
60-Day notice and request for comments.
The Small Business Administration (SBA) plans to seek approval, from the Office of Management and Budget (OMB) to conduct the data collection activities described below. The Paperwork Reduction Act requires federal agencies to publish a notice in the
Submit comments on or before November 20, 2020.
Send all comments to Shay Meinzer, Lead Program Evaluator, Office of Program Performance, Analysis, and Evaluation, Small Business Administration, 409 3rd Street, 5th Floor, Washington, DC 20416.
Shay Meinzer, Lead Program Evaluator, Office of Program Performance, Analysis, and Evaluation, Small Business Administration,
This is a request for the collection of new information.
The purpose of the Microloan Program is to assist women, low income, veteran, and minority entrepreneurs, and other small
The SBA is conducting an evaluation to examine how the Microloan Program activities of lending and technical assistance improve revenue, job creation, and survival for businesses that participate in the program. The evaluation also seeks to describe the population of borrowers, their business characteristics and their experiences with the program. The lender characteristics, and the training and technical assistance provided to borrowers will also be described. The results of the evaluation will be used to develop recommendations to improve the program. The recommendations will focus on improving access to financing, improving technical assistance and training, and improving other factors that promote small business growth.
The SBA proposes the use of four data collection instruments: (1) Borrower Web survey, (2) borrower semi-structured telephone interview, (3) lender web survey, (4) lender semi-structured telephone interview. The borrower survey will cover the topics of (1) training and technical assistance received; (2) program satisfaction and ratings of the program's contribution to the business growth; (3) how the Microloan program experiences compare with other programs; and (4) suggestions for the program improvements. The interviews with lenders will discuss (1) frequency and purpose of contacts with borrowers; (2) the most and the least effective types of training and technical assistance; (3) how the Microloan program experiences compare with other programs; and (4) suggestions for the program improvements.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Or you may submit your comments online through
SSA submitted the information collections below to OMB for clearance. Your comments regarding these information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than October 26, 2020. Individuals can obtain copies of these OMB clearance packages by writing to
1. Government Pension Questionnaire—20 CFR 404.408a—0960-0160. The basic Social Security benefits application (OMB No. 0960-0618) contains a lead question asking if the applicants are qualified (or will qualify) to receive a government pension. If the respondent is qualified, or will qualify, to receive a government pension, the applicant completes Form SSA-3885 either on paper or through a personal interview with an SSA claims
2. RS/DI Quality Review Case Analysis: Sampled Number Holder; Auxiliaries/Survivors; Parent; and Stewardship Annual Earnings Test—0960-0189. Section 205(a) of the Social Security Act (Act) authorizes the Commissioner of SSA to conduct the quality review process, which entails collecting information related to the accuracy of payments made under the Old-Age, Survivors, and Disability Insurance Program (OASDI). Sections 228(a)(3), 1614(a)(1)(B), and 1836(2) of the Act require a determination of the citizenship or alien status of the beneficiary; this is only one item that we might question as part of the Annual Quality review. SSA uses Forms SSA-2930, SSA-2931, and SSA-2935 to establish a national payment accuracy rate for all cases in payment status, and to serve as a source of information regarding problem areas in the Retirement Survivors Insurance (RSI) and Disability Insurance (DI) programs. We also use the information to measure the accuracy rate for newly adjudicated RSI or DI cases. SSA uses Form SSA-4659 to evaluate the effectiveness of the annual earnings test, and to use the results in developing ongoing improvements in the process. About 25% of respondents have in-person reviews and receive one of the following appointment letters: (1) SSA-L8550-U3 (Appointment Letter—Sample Individual); (2) SSA-L8551-U3 (Appointment Letter—Sample Family); or (3) the SSA-L8552-U3 (Appointment Letter—Rep Payee). About 75% of respondents receive a notice for a telephone review using the SSA-L8553-U3 (Beneficiary Telephone Contact) or the SSA-L8554-U3 (Rep Payee Telephone Contact). To help the beneficiary prepare for the interview, we include three forms with each notice: (1) SSA-85 (Information Needed to Review Your Social Security Claim) lists the information the beneficiary needs to gather for the interview; (2) SSA-2935 (Authorization to the Social Security Administration to Obtain Personal Information) verifies the beneficiary's correct payment amount, if necessary; and (3) SSA-8552 (Interview Confirmation) confirms or reschedules the interview if necessary. The respondents are a statistically valid sample of all OASDI beneficiaries in current pay status or their representative payees.
3. Application for Benefits under a U.S. International Social Security Agreement—20 CFR 404.1925—0960-0448. Section 233(a) of the Social Security Act (Act) authorizes the President to enter into international Social Security agreements (Totalization Agreements) between the United States and foreign countries. SSA collects information using Form SSA-2490-BK to determine entitlement to Social Security benefits from the United States, or from a country that enters into a Totalization Agreement with the United States. The respondents are individuals applying for Old Age Survivors and Disability Insurance (OASDI) benefits from the United States, or from a Totalization Agreement country.
4. Employee Identification Statement—20 CFR 404.702—0960-0473. When two or more individuals report earnings under the same Social Security Number (SSN), SSA collects information on Form SSA-4156 to credit the earnings to the correct individual and SSN. We send SSA-4156 to the employer to: (1) Identify the employees involved; (2) resolve the discrepancy; and (3) credit the earnings to the correct SSN. The respondents are employers involved in erroneous wage reporting for an employee.
5. SSI Notice of Interim Assistance Reimbursement (IAR)—0960-0546. Section 1631(g) of the Act authorizes SSA to reimburse an IAR agency from an individual's retroactive Supplemental Security Income (SSI) payment for assistance the IAR agency gave the individual for meeting basic needs while an SSI claim was pending or SSI payments were suspended or terminated. The State or local agency needs an IAR agreement with SSA to participate in the IAR program. The individual receiving the IAR payment signs an authorization form with an IAR agency to allow SSA to repay the IAR agency for funds paid in advance prior to SSA's determination on the individual's claim. The authorization represents the individual's intent to file for SSI, if they did not file an application before SSA received the authorization. Agencies who wish to enter into an IAR agreement with SSA
• Reporting Requirements
(a) notify SSA of receipt of an authorization for initial claims or cases the agency is appealing;
(b) submit a copy of that authorization either through a manual or electronic process;
(c) inform SSA of the amount of reimbursement;
(d) submit a written request for dispute resolution on a determination;
(e) notify SSA of interim assistance paid (using the SSA-8125 or the SSA-L8125-F6);
(f) inform SSA of any deceased claimants who participate in the IAR program;
(g) review and sign an agreement with SSA.
• Recordkeeping Requirements (h & i)—each IAR agency agrees to retain all notices, agreements, authorizations, and accounting forms for the period defined in the IAR agreement so SSA may verify transactions covered under the agreement.
• Third Party Disclosure Requirements (j): Each participating IAR agency agrees to send written notices from the IAR agency to the recipient regarding payment amounts and appeal rights.
• Periodic Review of Agency Accounting Process (k-m)
The respondents are State IAR officers.
6. Appeal of Determination for Help with Medicare Prescription Drug Plan Costs—0960-0695. Public Law 108-173, the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA), established the Medicare Part D program for voluntary prescription drug coverage for certain low-income individuals. The MMA stipulates the provision of subsidies for individuals who are eligible for the program and who meet eligibility criteria for help with premium, deductible, and co-payment costs. SSA uses Form SSA-1021, Appeal of Determination for Help With Medicare Prescription Drug Plan Costs, to obtain information from individuals who appeal SSA's decisions regarding eligibility or continuing eligibility for a Medicare Part D subsidy. The respondents are Medicare beneficiaries, or proper applicants acting on behalf of a Medicare beneficiary, who do not agree with the outcome of an SSA subsidy eligibility determination, and are filing an appeal.
7. Request for Medical Treatment in an SSA Employee Health Facility: Patient Self-Administered or Staff Administered Care—0960-0772. SSA operates onsite Employee Health Clinics (EHC) in eight different States. These clinics provide health care for all SSA employees including treatments of personal medical conditions when authorized through a physician. Form SSA-5072 is the employee's personal physician's order form. The information we collect on Form SSA-5072 gives the EHC nurses the guidance they need to perform certain medical procedures and to administer prescription medications such as allergy immunotherapy. In addition, the information allows the SSA medical officer to determine whether the nurses can administer treatment safely and appropriately in the SSA EHCs. Respondents are physicians of SSA employees who need to have medical treatment in an SSA EHC.
8. Medicare Income-Related Monthly Adjustment Amount—Life-Changing Event Form—0960-0784. Federally-mandated reductions in the Federal Medicare Part B and prescription drug coverage subsidies result in selected Medicare recipients paying higher premiums with income above a specific threshold. The amount of the premium subsidy reduction is an income-related monthly adjustment amount (IRMAA). The Internal Revenue Service transmits income tax return data to SSA for SSA to determine the IRMAA. SSA uses the Form SSA-44 to determine if a recipient qualifies for a reduction in the IRMAA. If affected Medicare recipients believe SSA should use more recent tax data because of a life-changing event that significantly reduces their income, they can report these changes to SSA and ask for a new initial determination of their IRMAA. The respondents are Medicare Part B and prescription drug coverage Retirement Insurance recipients and enrollees with modified adjusted gross income over a high-income threshold who experience one of eight significant life-changing events.
Wisconsin Central Ltd. (WCL) has filed a verified notice of exemption under 49 CFR part 1152 subpart F—
WCL has certified that: (1) It has handled no local traffic over the Line for at least two years; (2) there will be no effect on overhead traffic (of which none exists); (3) no formal complaint filed by a user of rail service (or by a state or local government entity acting on behalf of such user) regarding WCL's cessation of service over the Line is either pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the past two years; and (4) the requirements at 49 CFR 1105.7 and 1105.8 (notice of environmental and historic report), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
Any employee of WCL adversely affected by the abandonment shall be protected under
Pursuant to 49 CFR 1152.50(d)(3), an exemption will be effective 30 days after publication of the notice in the
Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to WCL's representative, Thomas J. Healey, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606.
If the verified notice contains false or misleading information, the exemption is void ab initio.
WCL has filed a combined environmental and historic report that addresses the potential effects, if any, of the abandonment on the environment and historic resources. OEA will issue a Draft Environmental Assessment (Draft EA) by September 29, 2020. The Draft EA will be available to interested persons on the Board's website, by writing to OEA, or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the Draft EA becomes available to the public.
Environmental, historic preservation, public use, or interim trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), WCL shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by WCL's filing of a notice of consummation by September 25, 2021, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available at
By the Board, Allison C. Davis, Director, Office of Proceedings.
The Surface Transportation Board has received a request from N.C. State University (WB20-46—9/9/20) for permission to use select data from the Board's 1990-2018 Unmasked Carload Waybill Samples. A copy of this request may be obtained from the Board's website under docket no. WB20-46.
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.
Susquehanna River Basin Commission.
Notice.
This notice lists Grandfathering Registration for projects by the Susquehanna River Basin Commission during the period set forth in DATES.
August 1-31, 2020.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists GF Registration for projects, described below, pursuant to 18 CFR 806, Subpart E for the time period specified above:
1. Borough of Everett Area Municipal Authority—Public Water Supply System, GF Certificate No. GF-202008107, Everett Borough and West Providence Township, Bedford County,
2. Carlisle Country Club, GF Certificate No. GF-202008108, Middlesex Township, Cumberland County, Pa.; Letort Spring Run and consumptive use; Issue Date: August 12, 2020.
3. Kerry, Inc.—Kerry Bio-Science, GF Certificate No. GF-202008109, Town of Norwich, Chenango County, N.Y.; Well 1, Well 2, and consumptive use; Issue Date: August 19, 2020.
4. Town of Owego—Water District #4, GF Certificate No. GF-202008110, Town of Owego, Tioga County, N.Y.; Well 1, Well 2, and Well 3; Issue Date: August 27, 2020.
Pub. L. 91-575, 84 Stat. 1509
Susquehanna River Basin Commission.
Notice.
This notice lists the projects approved by rule by the Susquehanna River Basin Commission during the period set forth in “DATES.”
August 1-31, 2020.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, receiving approval for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22 (f)(13) and 18 CFR 806.22 (f) for the time period specified above:
1. Chesapeake Appalachia, L.L.C.; Pad ID: Slumber Valley; ABR-201008015.R2; Meshoppen Township, Wyoming County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 3, 2020.
2. XTO Energy, Inc.; Pad ID: Tome 8522H; ABR-20100556.R2; Moreland Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 4, 2020.
3. XTO Energy, Inc.; Pad ID: Moser 8521H; ABR-20100641.R2; Franklin Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 4, 2020.
4. BKV Operating, LLC; Pad ID: Sickler 5H; ABR-20100679.R2; Washington Township, Wyoming County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: August 6, 2020.
5. Chesapeake Appalachia, L.L.C.; Pad ID: Lattimer; ABR-201008038.R2; Litchfield Township, Bradford County, Pa.; Consumptive Use of Up to 7.50000 mgd; Approval Date: August 6, 2020.
6. Inflection Energy (PA), LLC.; Pad ID: Strouse Well Pad; ABR-201505002.R1; Hepburn Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 6, 2020.
7. XTO Energy, Inc.; Pad ID: Brown 8519H; ABR-20100604.R2; Moreland Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 6, 2020.
8. Chesapeake Appalachia, L.L.C.; Pad ID: Dave; ABR-201008107.R2; Albany Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 18, 2020.
9. Tilden Marcellus, LLC; Pad ID: Simonetti 817 (rev); ABR-20100545.R2; Gaines Township, Tioga County, Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: August 18, 2020.
10. Tilden Marcellus, LLC; Pad ID: Coon Hollow 904; ABR-20100560.R2; West Branch Township, Potter County, Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: August 18, 2020.
11. Range Resources—Appalachia, LLC; Pad ID: Harman, Lewis Unit #1H; ABR-20100554.R2; Moreland Township, Lycoming County, Pa.; Consumptive Use of Up to 0.1000 mgd; Approval Date: August 18, 2020.
12. ARD Operating, LLC; Pad ID: COP Tr 728 Pad A; ABR-20100631.R2; Watson Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 18, 2020.
13. ARD Operating, LLC; Pad ID: David C Duncan Pad A; ABR-20100635.R2; Cascade Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 18, 2020.
14. ARD Operating, LLC; Pad ID: COP Tr 289 C; ABR-20100636.R2; McHenry Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: August 19, 2020.
15. Chief Oil & Gas, LLC.; Pad ID: Bedford; ABR-201008139.R2; Elkland Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 21, 2020.
16. Chief Oil & Gas, LLC.; Pad ID: Hottenstein; ABR-201008148.R2; Forks Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 26, 2020.
17. Chief Oil & Gas, LLC.; Pad ID: Benspond; ABR-201008146.R2; Elkland Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 26, 2020.
18. Chesapeake Appalachia, L.L.C.; Pad ID: Fremar; ABR-201008147.R2; Fox Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 26, 2020.
19. Chesapeake Appalachia, L.L.C.; Pad ID: Roundtop; ABR-201008067.R2; Colley Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: August 26, 2020.
20. Repsol Oil & Gas USA, LLC; Pad ID: ROY (03 046) B; ABR-20100629.R2; Wells Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 26, 2020.
21. Repsol Oil & Gas USA, LLC; Pad ID: LYON (01 078) S; ABR-20100696.R2; Troy Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 26, 2020.
22. Tilden Marcellus, LLC; Pad ID: Pierson 810; ABR-20100633.R2; Gaines Township, Tioga County, Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: August 26, 2020.
23. Range Resources—Appalachia, LLC; Pad ID: Shohocken Hunt Club Unit #1H—#6H; ABR-20100646.R2; Cummings Township, Lycoming County, Pa.; Consumptive Use of Up to 2.0000 mgd; Approval Date: August 26, 2020.
24. Repsol Oil & Gas USA, LLC; Pad ID: ROY (03 040) B; ABR-20100650.R2; Wells Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 28, 2020.
25. Repsol Oil & Gas USA, LLC; Pad ID: SCHUCKER (03 006) A; ABR-20100654.R2; Columbia Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 28, 2020.
26. Repsol Oil & Gas USA, LLC; Pad ID: FEUSNER (03 053) J; ABR-201006100.R2; Columbia Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: August 28, 2020.
27. ARD Operating, LLC.; Pad ID: Larry's Creek F&G Pad D; ABR-
28. EXCO Resources (PA), LLC; Pad ID: Confer (Pad 32); ABR-20100699.R2; Burnside Township, Centre County, Pa.; Consumptive Use of Up to 3.0000 mgd; Approval Date: August 28, 2020.
Pub. L. 91-575, 84 Stat. 1509
Susquehanna River Basin Commission
Notice.
As part of its regular business meeting held on September 18, 2020, from Harrisburg, Pennsylvania, the Commission approved the applications of certain water resources projects, and took additional actions, as set forth in the Supplementary Information below.
September 18, 2020.
Susquehanna River Basin Commission, 4423 N. Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary, telephone: (717) 238-0423, ext. 1312, fax: (717) 238-2436; email:
In addition to the actions taken on projects identified in the summary above and the listings below, the following items were also presented or acted upon at the business meeting: (1) tabled action on a general permit; (2) rescission of Policy No. 98-03; (3) ratification of grants and agreements; (4) modifications to the Commission expense budget for fiscal year 2021; (5) adoption of the proposed expense budget for fiscal year 2022; (6) adoption of resolution regarding member allocation; (7) adoption of an updated Water Resources Program; (8) adoption of amendments to the Comprehensive Plan
1. Project Sponsor and Facility: Bloomfield Borough Water Authority, Centre Township, Perry County, Pa. Application for renewal of groundwater withdrawal of up to 0.056 mgd (30-day average) from Well 1 (Docket No. 19901103).
2. Project Sponsor: Byler Golf Management, Inc. Project Facility: Iron Valley Golf Club, Cornwall Borough, Lebanon County, Pa. Modification to change consumptive use mitigation method (Docket No. 19981206).
3. Project Sponsor and Facility: Cabot Oil & Gas Corporation, Eaton Township, Wyoming County, Pa. Application for renewal of groundwater withdrawal of up to 0.864 mgd (30-day average) from the Hatchery Wellfield (Wells 1, 2, and 3) (Docket No. 20160610).
4. Project Sponsor and Facility: Cabot Oil & Gas Corporation (Susquehanna River), Great Bend Township, Susquehanna County, Pa. Application for renewal of surface water withdrawal of up to 2.000 mgd (peak day) (Docket No. 20160902).
5. Project Sponsor and Facility: Chesapeake Appalachia, L.L.C. (Susquehanna River), Wilmot Township, Bradford County, Pa. Application for surface water withdrawal of up to 3.000 mgd (peak day).
6. Project Sponsor and Facility: Chesapeake Appalachia, L.L.C. (Susquehanna River), Windham Township, Wyoming County, Pa. Application for surface water withdrawal of up to 3.000 mgd (peak day).
7. Project Sponsor and Facility: Chesapeake Appalachia, L.L.C. (Wyalusing Creek), Wyalusing Township, Bradford County, Pa. Application for surface water withdrawal of up to 3.000 mgd (peak day).
8. Project Sponsor and Facility: Green Leaf Water LLC (Lycoming Creek), Lewis Township, Lycoming County, Pa. Application for renewal of surface water withdrawal of up to 0.900 mgd (peak day) (Docket No. 20160601).
9. Project Sponsor and Facility: Lake Meade Municipal Authority, Reading Township, Adams County, Pa. Application for groundwater withdrawal of up to 0.252 mgd (30-day average) from Well 3.
10. Project Sponsor and Facility: Meadia Heights Golf Club LLC, West Lampeter Township, Lancaster County, Pa. Modification to change consumptive use mitigation method (Docket No. 20000204).
11. Project Sponsor and Facility: Montgomery Water Authority, Clinton Township, Lycoming County, Pa. Application for renewal of groundwater withdrawal of up to 0.267 mgd (30-day average) from Well 1 (Docket No. 19881102).
12. Project Sponsor: Pixelle Specialty Solutions LLC. Project Facility: Spring Grove Mill (Codorus Creek and Unnamed Tributary to Codorus Creek), Spring Grove Borough, Jackson Township, and North Codorus Township, York County, Pa. Applications for existing surface water withdrawals (peak day) of up to 19.800 mgd (New Filter Plant Intake), 6.000 mgd (Old Filter Plant Intake), and 0.750 mgd (Kessler Pond Intake); consumptive use of up to 3.650 mgd (peak day); and existing groundwater withdrawals (30-day average) of up to 0.039 mgd (Well 1) and 0.021 mgd (Well 2). Proposed action to include combining all existing and new approvals into a single approval document with a single approval term.
13. Project Sponsor and Facility: Repsol Oil & Gas USA, LLC (Susquehanna River), Sheshequin Township, Bradford County, Pa. Application for renewal of surface water withdrawal of up to 1.500 mgd (peak day) (Docket No. 20160908).
14. Project Sponsor and Facility: S.T.L. Resources, LLC (West Branch Susquehanna River), Grugan Township, Clinton County, Pa. Application for surface water withdrawal of up to 3.450 mgd (peak day).
15. Project Sponsor and Facility: Shippensburg Borough Authority, Southampton Township, Cumberland County, Pa. Application for renewal of groundwater withdrawal of up to 1.280 mgd (30-day average) from Well 1 (Docket No. 19900713).
16. Project Sponsor and Facility: The Municipal Authority of the Borough of Berlin, Allegheny Township, Somerset County, Pa. Conforming the grandfathering amount with the forthcoming determination for a groundwater withdrawal up to 0.030 mgd (30-day average) from Well 6 (Docket No. 19980702).
17. Project Sponsor and Facility: Iron Masters Country Club, Bloomfield Township, Bedford County, Pa. Conforming the grandfathering amount with the forthcoming determination for groundwater withdrawals up to 0.051 mgd (30-day average) from Well 10 and
18. Project Sponsor and Facility: Sinking Valley Country Club, Tyrone Township, Blair County, Pa. Conforming the grandfathering amount with the forthcoming determination for groundwater withdrawals up to 0.081 mgd (30-day average) from the 14th Fairway Well and up to 0.099 mgd (30-day average) from the 8th Tee Well (Docket No. 20020811).
19. Project Sponsor: Togg Mountain, LLC. Project Facility: Toggenburg Mountain Winter Sports Center (West Branch Tioughnioga Creek), Town of Fabius, Onondaga County, N.Y. Modification to increase consumptive use (peak day) by an additional 0.505 mgd, for a total consumptive use of up to 0.990 mgd, and increase surface water withdrawal (peak day) by an additional 2.300 mgd, for a total surface water withdrawal of up to 4.500 mgd (Docket No. 20180911).
Pub.L. 91-575, 84 Stat. 1509
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on the determination by the Secretary of State, in consultation with the heads of relevant agencies, that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; or the Assistant Director for Licensing, tel.: 202-622-2480.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
The Secretary of State, in consultation with the Secretary of the Treasury and heads of other relevant agencies, has selected certain sanctions to be imposed upon the persons listed below, pursuant to which the property and interests in property subject to U.S. jurisdiction of the persons listed below are blocked. The Secretary of State's determination is effective September 21, 2020.
1. GHADIRIAN, Hamid Reza, Iran; DOB 23 Sep 1978; POB Aran o Bigdol, Iran; nationality Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male; National ID No. 6199152344 (Iran) (individual) [NPWMD] [IFSR].
Designated pursuant to section 1(a)(ii) of Executive Order 13382 of June 28, 2005, 70 FR 38567, 3 CFR, 2006 Comp., p. 170 (E.O. 13382) for having engaged, or attempted to engage, in activities or transactions that have materially contributed to, or pose a risk of materially contributing to, the proliferation of weapons of mass destruction or their means of delivery (including missiles capable of delivering such weapons), including any efforts to manufacture, acquire, possess, develop, transport, transfer or use such items, by an person or foreign county of proliferation concern.
2. SHIVA'I, Ahmad Asghari (a.k.a. SHIVAEI, Ahmed Asghari), Iran; DOB 03 Mar 1973; POB Tehran, Iran; nationality Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male; National ID No. 55690718 (Iran) (individual) [NPWMD] [IFSR].
Designated pursuant to section 1(a)(ii) of E.O. 13382 for having engaged, or attempted to engage, in activities or transactions that have materially contributed to, or pose a risk of materially contributing to, the proliferation of weapons of mass destruction or their means of delivery (including missiles capable of delivering such weapons), including any efforts to manufacture, acquire, possess, develop, transport, transfer or use such items, by an person or foreign county of proliferation concern.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; or the Assistant Director for Licensing, tel.: 202-622-2480.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On September 3, 2020, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following person are blocked under the relevant sanctions authorities listed below.
1. ZAGROS PETROCHEMICAL (a.k.a. “ZPC”), North Sheikh Bahaie Avenue Sheida Alley, Khoddami Street, Vanak Square, Tehran, Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Chamber of Commerce Number 2869 (Iran); Registration Number 148344 (Iran) [IRAN-EO13846] (Linked To: TRILIANCE PETROCHEMICAL CO. LTD.).
Designated pursuant to section 1(a)(iii)(B) of Executive Order 13846 of August 6, 2018, 83 FR 38939, 3 CFR, 2019 Comp., p. 854 (E.O. 13846), for, on or after November 5, 2018, having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, TRILIANCE PETROCHEMICAL CO. LTD.
2. TRIO ENERGY DMCC, Jumeirah Lake Towers Unit 2903, SABA 1 Tower, Plot JLT-
Designated pursuant to section 1(a)(iii)(B) of E.O. 13846, for, on or after November 5, 2018, having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, TRILIANCE PETROCHEMICAL CO. LTD.
3. JINGHO TECHNOLOGY CO. LIMITED, Hong Kong; Business Registration Number 2088397 (Hong Kong) [IRAN-EO13846] (Linked To: TRILIANCE PETROCHEMICAL CO. LTD.).
Designated pursuant to section 1(a)(iii)(B) of E.O. 13846, for, on or after November 5, 2018, having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, TRILIANCE PETROCHEMICAL CO. LTD.
4. DYNAPEX ENERGY LIMITED (f.k.a. SINGH DAILY CULTURE PRESS LIMITED; f.k.a. SINGH SCIENCE AND TECHNOLOGY DEVELOPMENT CO., LIMITED), Flat/Rm 1105 11/F, Hua Qin International Building, 340 Queen's Road Central, Hong Kong; Business Registration Number 2066820 (Hong Kong) [IRAN-EO13846] (Linked To: TRILIANCE PETROCHEMICAL CO. LTD.).
Designated pursuant to section 1(a)(iii)(B) of E.O. 13846, for, on or after November 5, 2018, having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, TRILIANCE PETROCHEMICAL CO. LTD.
5. PETROTECH FZE, Office Number E, 16f 35, LOB P2 E, Hamriyah Free Zone, Sharjah, United Arab Emirates [IRAN-EO13846] (Linked To: TRILIANCE PETROCHEMICAL CO. LTD.).
Designated pursuant to section 1(a)(iii)(B) of E.O. 13846, for, on or after November 5, 2018, having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, TRILIANCE PETROCHEMICAL CO. LTD.
6. DINRIN LIMITED, Hong Kong; Business Registration Number 2849056 (Hong Kong) [IRAN-EO13846] (Linked To: ZAGROS PETROCHEMICAL).
Designated pursuant to section 1(a)(iii)(B) of E.O. 13846, for, on or after November 5, 2018, having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, ZAGROS PETROCHEMICAL.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; Assistant Director for Licensing, tel.: 202-622-2480; or Assistant Director for Regulatory Affairs, tel.: 202-622-4855.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On September 21, 2020, OFAC determined that determined that the property and interests in property subject to U.S. jurisdiction of the following person are blocked under the relevant sanctions authorities listed below.
1. DEZFULIAN, Mohammed Reza (a.k.a. DEZFULIAN, Mohammad Reza), Iran; POB Tehran, Iran; nationality Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male; National ID No. 0061496766 (Iran) (individual) [NPWMD] [IFSR] (Linked To: MAMMUT DIESEL).
Designated pursuant to section 1(a)(iv) of Executive Order 13382 of June 28, 2005, 70 FR 38567, 3 CFR, 2006 Comp., p. 170 (E.O. 13382) for acting or purporting to act for or on behalf of, directly or indirectly, MAMMUT DIESEL, a person whose property and interests in property are blocked pursuant to E.O. 13382.
ESMA'ILPUR, Asghar, Iran; DOB 07 Mar 1973; POB Tehran, Iran; citizen Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male; National ID No. 0059243228 (Iran) (individual) [NPWMD] [IFSR] (Linked To: AEROSPACE INDUSTRIES ORGANIZATION).
Designated pursuant to section 1(a)(iv) of E.O. 13382 for acting or purporting to act for or on behalf of, directly or indirectly, AEROSPACE INDUSTRIES ORGANIZATION, a person whose property and interests in property are blocked pursuant to E.O. 13382.
2. FERDOWS, Behzad Daniel, Dubai, United Arab Emirates; DOB 14 Mar 1969; POB Tehran, Iran; nationality Iran; alt. nationality Germany; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male; Passport C4KNRMNCF (Germany) expires 18 Mar 2018; National ID No. 0037251910 (Iran) (individual) [NPWMD] [IFSR] (Linked To: MAMMUT INDUSTRIAL GROUP P.J.S).
Designated pursuant to section 1(a)(iv) of E.O. 13382 for acting or purporting to act for or on behalf of, directly or indirectly, MAMMUT INDUSTRIAL GROUP P.J.S, a person whose property and interests in property are blocked pursuant to E.O. 13382.
3. FERDOWS, Mehrzad Manuel, Iran; DOB 23 Jul 1970; POB Tehran, Iran; nationality Iran; alt. nationality Germany; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male; Passport C4JRGPJ7H (Germany) expires 11 Mar 2019; alt. Passport J32379304 (Iran); National ID No. 0055124240 (Iran) (individual) [NPWMD] [IFSR] (Linked To: MAMMUT INDUSTRIAL GROUP P.J.S).
Designated pursuant to section 1(a)(iv) of E.O. 13382 for acting or purporting to act for or on behalf of, directly or indirectly, MAMMUT INDUSTRIAL GROUP P.J.S, a person whose property and interests in property are blocked pursuant to E.O. 13382.
4. GHANNADI MARAGHEH, Mohammad (a.k.a. GHANNADI, Mohammad; a.k.a. GHANNADI-MARAGHEH, Mohammad; a.k.a. QANNADI, Mohammad), Tehran, Iran; DOB 13 Oct 1952; POB Maragheh, Iran; nationality Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male (individual) [NPWMD] [IFSR] (Linked To: ATOMIC ENERGY ORGANIZATION OF IRAN).
Designated pursuant to section 1(a)(iv) of E.O. 13382 for acting or purporting to act for or on behalf of, directly or indirectly, ATOMIC ENERGY ORGANIZATION OF IRAN, a person whose property and interests in property are blocked pursuant to E.O. 13382.
5. GHOLAMI, Mohammad, Iran; DOB 26 Dec 1973; POB Bojnord, Iran; nationality Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male; National ID No. 5249398618 (Iran) (individual) [NPWMD] [IFSR] (Linked To: SHAHID HEMMAT INDUSTRIAL GROUP).
Designated pursuant to section 1(a)(iv) of E.O. 13382 for acting or purporting to act for or on behalf of, directly or indirectly, SHAHID HEMMAT INDUSTRIAL GROUP, a person whose property and interests in property are blocked pursuant to E.O. 13382.
6. KAMALVANDI, Behrouz, Iran; DOB 1955; alt. DOB 1956; POB Tehran, Iran; nationality Iran; Additional Sanctions
Designated pursuant to section 1(a)(iv) of E.O. 13382 for acting or purporting to act for or on behalf of, directly or indirectly, ATOMIC ENERGY ORGANIZATION OF IRAN, a person whose property and interests in property are blocked pursuant to E.O. 13382.
7. KARIMI SABET, Javad (a.k.a. KARIMI-SABET, Javad), Iran; DOB 01 Jan 1973; POB Iran; nationality Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male (individual) [NPWMD] [IFSR] (Linked To: ATOMIC ENERGY ORGANIZATION OF IRAN).
Designated pursuant to section 1(a)(iv) of E.O. 13382 for acting or purporting to act for or on behalf of, directly or indirectly, ATOMIC ENERGY ORGANIZATION OF IRAN, a person whose property and interests in property are blocked pursuant to E.O. 13382.
8. RAHIMIAN, Pezhman (a.k.a. RAHIMIAN, Pejman), Iran; POB Esfahan, Esfahan Province, Iran; nationality Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male; National ID No. 1285917855 (Iran) (individual) [NPWMD] [IFSR] (Linked To: ATOMIC ENERGY ORGANIZATION OF IRAN).
Designated pursuant to section 1(a)(iv) of E.O. 13382 for acting or purporting to act for or on behalf of, directly or indirectly, ATOMIC ENERGY ORGANIZATION OF IRAN, a person whose property and interests in property are blocked pursuant to E.O. 13382.
9. ADVANCED TECHNOLOGIES COMPANY OF IRAN (f.k.a. GHANI SAZI ENRICHMENT; a.k.a. IRAN ADVANCED TECHNOLOGIES COMPANY; f.k.a. IRAN URANIUM ENRICHMENT COMPANY; f.k.a. IRANIAN ENRICHMENT COMPANY; a.k.a. “ADVANCED TECHNOLOGIES”; a.k.a. “ADVANCED TECHNOLOGIES COMPANY”; a.k.a. “ADVANCED TECHNOLOGIES HOLDING COMPANY”; a.k.a. “IATC”), Tehran, Iran; Additional Sanctions Information—Subject to Secondary Sanctions; National ID No. 10103378982 (Iran); Registration Number 299780 (Iran) [IRAN] [NPWMD] [IFSR] (Linked To: ATOMIC ENERGY ORGANIZATION OF IRAN).
Designated pursuant to section 1(a)(iv) of E.O. 13382 for being owned or controlled by ATOMIC ENERGY ORGANIZATION OF IRAN, a person whose property and interests in property are blocked pursuant to E.O. 13382.
10. MAMMUT DIESEL (a.k.a. MAMMUT DIESEL COMPANY), No. 158, 14th km, Makhsoos Road, Tehran 37515-335, Iran; website
Designated pursuant to section 1(a)(iv) of E.O. 13382 for being owned or controlled by MAMMUT INDUSTRIAL GROUP P.J.S, a person whose property and interests in property are blocked pursuant to E.O. 13382.
11. MAMMUT INDUSTRIAL GROUP P.J.S (a.k.a. MAMMUT INDUSTRIAL GROUP; a.k.a. MAMMUT TEHRAN INDUSTRIAL GROUP; a.k.a. “MAMMUT INDUSTRIES”), Khaled Eslamboli Street, Seventh Street No. 7, Tehran 15875-7974, Iran; No. 65 Lofti Street, Tehran, Iran; Vozara Str, 7th Str No. 7, Tehran, Iran; website
Designated pursuant to section 1(a)(iv) of E.O. 13382 for having provided, or attempted to provide, financial, material, technological or other support for, or goods or services in support of, SHAHID HEMMAT INDUSTRIAL GROUP, a person whose property and interests in property are blocked pursuant to E.O. 13382.
12. MESBAH ENERGY COMPANY (a.k.a. MESBAH ENERGY; a.k.a. MESBAH ENERGY CO.), Science & Technology Park, Shahid Ghoddousi Blvd., Arak, Iran; Tehran, Iran; website
Designated pursuant to section 1(a)(iv) of E.O. 13382 for being owned or controlled by ATOMIC ENERGY ORGANIZATION OF IRAN, a person whose property and interests in property are blocked pursuant to E.O. 13382.
13. NUCLEAR SCIENCE AND TECHNOLOGY RESEARCH INSTITUTE (a.k.a. NUCLEAR SCIENCE AND TECHNOLOGY RESEARCH CENTER; a.k.a. NUCLEAR SCIENCES AND TECHNOLOGIES RESEARCH INSTITUTE; a.k.a. RESEARCH INSTITUTE OF NUCLEAR SCIENCE AND TECHNOLOGY; a.k.a. “NSTRI”), North Kargar Street, Tehran, Iran; North Kargar Ave., Tehran, Iran; website
Designated pursuant to section 1(a)(iv) of E.O. 13382 for being owned or controlled by ATOMIC ENERGY ORGANIZATION OF IRAN, a person whose property and interests in property are blocked pursuant to E.O. 13382.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (OFAC) is updating the identifying information on its list of Specially Designated Nationals and Blocked Persons (SDN List) for two persons whose property and interests in property are blocked pursuant to Executive Order 13382.
See
OFAC: Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; Assistant Director for Licensing, tel.: 202-622-2480; or Assistant Director for Regulatory Affairs, tel.: 202-622-4855.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On September 21, 2020, OFAC published the following revised information for the following persons on OFAC's SDN List whose property and interests in property are blocked pursuant to Executive Order 13382, “Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters”:
NOOSHIN, Seyed Mirahmad (a.k.a. NOOSHIN, Seid Mir Ahmad; a.k.a. NUSHIN, Sayyed Mir Ahmad), Iran; DOB 11 Jan 1966; Additional Sanctions Information—Subject to Secondary Sanctions; Gender Male; Passport G9311208 (Iran); Director, Aerospace Industries Organization (individual) [NPWMD] [IFSR] (Linked To: SHAHID HEMMAT INDUSTRIAL GROUP).
SHAHID MOVAHED INDUSTRIES (a.k.a. SHAHID HAJ ALI MOVAHED RESEARCH CENTER; a.k.a. SHAHID MOVAHED INDUSTRY; a.k.a. SHIG DEPARTMENT 7500), c/o SHIG, Damavand Tehran Highway, P.O. Box 16595-159, Tehran, Iran; Additional Sanctions Information—Subject to Secondary Sanctions [NPWMD] [IFSR] (Linked To: SHAHID HEMMAT INDUSTRIAL GROUP).
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Form 8851, Summary of Archer MSAs.
Written comments should be received on or before November 24, 2020 to be assured of consideration.
Direct all written comments to Paul Adams, Internal Revenue Service, room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Sara Covington, (737)800-6149 or at Internal Revenue Service, Room 66526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained 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.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning generic clearance for the collection of qualitative feedback on agency service delivery.
Written comments should be received on or before November 24, 2020 to be assured of consideration.
Direct all written comments to Kinna Brewington, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis, at (202) 317-5751 or Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Danny S. Green, Enterprise Records Service (005R1B), Department of Veterans Affairs, 811 Vermont Avenue NW, Washington, DC 20420, (202) 421-1354 or email
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veteran's Benefits Information, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Danny S. Green, (202) 421-1354 or email
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
By direction of the Secretary.
U.S. Immigration and Customs Enforcement, Department of Homeland Security.
Notice of proposed rulemaking.
In fiscal year 2018, the Department of Homeland Security (DHS or the Department) admitted over 2 million foreign nationals into the United States in the F academic student, J exchange visitor, and I representatives of foreign information media nonimmigrant categories. This is a testament to the United States' exceptional academic institutions, cutting-edge technology, and environment that promotes the exchange of ideas, research, and mutual enrichment. Currently, aliens in the F, J, and I categories are admitted into the United States for the period of time that they are complying with the terms and conditions of their nonimmigrant category (“duration of status”), rather than an admission for a fixed time period. This duration of status framework generally lacks predetermined points in time for U.S. Citizenship and Immigration Services (USCIS) or U.S. Customs and Border Protection (CBP) immigration officers to directly evaluate whether F, J, and I nonimmigrants are maintaining their status and poses a challenge to the Department's ability to effectively monitor and oversee these categories of nonimmigrants. Specifically, because nonimmigrants admitted in the F, J, and I classifications generally do not currently begin to accrue unlawful presence until the day after there is a formal finding of a status violation by USCIS or an immigration judge, they are often are able to avoid accrual of unlawful presence for purposes of statutory inadmissibility grounds of unlawful presence, in part, because they do not file applications or petitions, such as extension of stay, that would result in a formal finding. The Department accordingly is concerned about the integrity of the programs and a potential for increased risk to national security. To address these issues, DHS proposes to amend its regulations by changing the admission period of F, J, and I aliens from duration of status to an admission for a fixed time period. Admitting individuals in the F, J, and I categories for a fixed period of time will require all F, J, and I nonimmigrants who wish to remain in the United States beyond their specifically authorized admission period to apply for an extension of stay directly with USCIS or to depart the country and apply for admission with CBP at a port of entry (POE). This change would provide the Department with additional protections and mechanisms to exercise the oversight necessary to vigorously enforce our nation's immigration laws, protect the integrity of these nonimmigrant programs, and promptly detect national security concerns.
Written comments and related material must be submitted on or before October 26, 2020.
You must submit comments on the proposed rule identified by DHS Docket No. ICEB-2019-0006, only through the following method:
•
Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or U.S. Immigration and Customs Enforcement (ICE) officials, will not be considered comments on the proposed rule and may not receive a response from DHS. Please note that DHS and ICE cannot accept any comments that are hand delivered or couriered. In addition, due to COVID-19, ICE cannot accept mailed comments whether paper or contained on any form of digital media storage devices, such as CDs/DVDs and USB drives.
•
•
•
For additional instructions on sending comments, see the “Public Participation” heading of the
Sharon Hageman, Acting Regulatory Unit Chief, Office of Policy and Planning, U.S. Immigration and Customs Enforcement, Department of Homeland Security, 500 12th Street SW, Washington, DC 20536. Telephone 202-732-6960 (not a toll-free number).
This supplementary information section is organized as follows:
DHS encourages all interested parties to participate in this rulemaking by submitting written data, views, comments and arguments on all aspects of this proposed rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Under the guidelines of the Office of the Federal Register, all properly submitted comments will be posted to
You must submit your comments in English or provide an English translation. The most helpful comments will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority supporting the recommended change. If you submit comments, please include the docket number for this rulemaking (ICEB-2019-0006), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and materials online. Due to COVID-19-related restrictions, ICE has temporarily suspended its ability to receive public comments by mail.
DHS will post them to the Federal eRulemaking Portal at
DHS will consider all properly submitted comments and materials received during the comment period and may change this rule based on your comments.
As stated in the Submitting Comments section above, please be aware that anyone can search the electronic form of comments received in any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. The Department may withhold information from public viewing that it determines is offensive. For additional information, please read the Privacy and Security Notice posted on
Studying and participating in exchange visitor and academic programs in the United States offers foreign nationals access to world-renowned faculty, cutting edge resources, state-of-the art courses, and individualized instructional programs. Similarly, the United States fosters an environment that promotes the exchange of ideas and encourages open discussions when there are differences of opinions, which the United States also encourages by allowing foreign news and media members the same unimpeded access and opportunity to share in the constitutional freedoms of the press as domestic news and media members. These benefits have attracted hundreds of thousands of foreign nationals to the United States in the F academic student,
Unlike aliens in most nonimmigrant categories who are admitted until a specific departure date, F, J, and I nonimmigrants are admitted into the United States for an unspecified period of time to engage in activities authorized under their respective nonimmigrant classifications. This unspecified period of time is referred to as “duration of status” (D/S). D/S for F academic students is generally the time during which a student is pursuing a full course of study at an educational institution approved by DHS, or engaging in authorized practical training following completion of studies, plus authorized time to depart the country.
However, the significant increase in the volume of F academic students, J exchange visitors, and I foreign information media representatives poses a challenge to the Department's ability to monitor and oversee these categories of nonimmigrants while they are in the United States. During the length of their stay for D/S, a period of admission without a specified end date, these nonimmigrants are not required to have direct interaction with DHS, except for a few limited instances, such as when applying for employment authorization for optional practical training or for reinstatement if they have failed to maintain status. Admission for D/S, in general, does not afford immigration officers enough predetermined opportunities to directly verify that aliens granted such nonimmigrant statuses are engaging only in those activities their respective classifications authorize while they are in the United States. In turn, this has undermined DHS's ability to effectively enforce compliance with the statutory inadmissibility grounds related to unlawful presence and has created incentives for fraud and abuse.
Given these concerns, DHS believes that the admission of F, J, and I nonimmigrants for D/S is no longer appropriate. With this notice of proposed rulemaking (NPRM), DHS proposes to replace the D/S framework for F, J, and I nonimmigrants with an admission period with a specific date upon which an authorized stay ends. Nonimmigrants who would like to stay in the United States beyond their fixed date of admission would need to apply directly with DHS for an extension of stay.
Replacing admissions for D/S with admissions for a fixed period of authorized stay is consistent with most other nonimmigrant categories,
These changes would ensure that the Department has an effective mechanism to periodically and directly assess whether these nonimmigrants are complying with the conditions of their classifications and U.S. immigration laws, and to obtain timely and accurate information about the activities they have engaged in and plan to engage in during their temporary stay in the United States. If immigration officers discover a nonimmigrant in one of these categories has overstayed or otherwise violated his or her status, the proposed changes may result in the alien beginning to accrue unlawful presence for purposes of unlawful presence-related statutory grounds of inadmissibility under the Immigration and Nationality Act (INA). DHS believes this greater oversight would deter F, J, or I nonimmigrants from engaging in fraud and abuse and strengthen the integrity of these nonimmigrant classifications.
The Department believes that the provisions of each new regulatory
DHS proposes the following major changes:
• Amend 8 CFR 214.1, Requirements for admission, extension, and maintenance of status, by:
○ Striking all references to D/S for F, J, and I nonimmigrants;
○ Describing requirements for F and J nonimmigrants seeking admission;
○ Updating the cross reference and clarifying the standards for admission in the automatic extension visa validity provisions that cover F and J nonimmigrants applying at a port-of-entry after an absence not exceeding 30 days solely in a contiguous territory or adjacent islands;
○ Outlining the process for extension of stay (EOS) applications for F, J, and I nonimmigrants;
○ Specifying the effect of departure while an F or J nonimmigrant's application for an EOS in F or J nonimmigrant status and/or employment authorization (and an associated employment authorization document (EAD)) is pending;
○ Providing procedures specific to the transition from D/S to admission for a fixed time period of authorized stay for F, J, and I nonimmigrants; and
○ Replacing references to specific form names and numbers with general language, to account for future changes to form names and numbers.
• Amend 8 CFR 214.2, Special requirements for admission, extension, maintenance, and change of status, by:
○ Setting the authorized admission and extension periods for F and J nonimmigrants (with limited exceptions) up to the program length, not to exceed a 2- or 4-year period;
○ Listing the circumstances, including factors that relate to national security and program integrity concerns, when the period of admission for F and J nonimmigrants may be limited to a maximum of 2 years;
○ Outlining procedures and requirements for F-1 nonimmigrants who change educational levels while in F-1 status;
○ Providing limits on the number of times that F-1 nonimmigrants can change educational levels while in F-1 status;
○ Decreasing from 60 to 30 days the allowed period for F aliens to prepare to depart from the United States after completion of a course of study or authorized period of post-completion practical training;
○ Proposing to lengthen the automatic EOS for individuals covered by the authorized status and employment authorization provided by 8 CFR 214.2(f)(5)(vi) (the H-1B cap gap provisions);
○ Initiating a routine biometrics collection in conjunction with an EOS application for F, J, and I nonimmigrants;
○ Limiting language training students to an aggregate 24-month period of stay, including breaks and an annual vacation;
○ Providing that a delay in completing one's program by the program end date on Form I-20, due to a pattern of behavior demonstrating a student is repeatedly unable or unwilling to complete his or her course of study, such as failing grades, in addition to academic probation or suspension, is an unacceptable reason for program extensions for F nonimmigrants;
○ Providing that F nonimmigrants who have timely filed an EOS application and whose EOS application is still pending after their admission period indicated on Form I-94 has expired will receive an automatic extension of their F nonimmigrant status and, as applicable, of their on-campus employment authorization, off-campus employment authorization due to severe economic hardship, or Science Technology Engineering and Mathematics Optional Practical Training (STEM OPT) employment authorization, as well as evidence of employment authorization, for up to 180 days or until the relevant application is adjudicated, whichever is earlier;
○ Allowing F nonimmigrants whose timely filed EOS applications remain pending after their admission period has expired to receive an auto-extension of their current authorization for on-campus and off-campus employment based on severe economic hardship resulting from emergent circumstances under 8 CFR 214.2(f)(5)(v). The length of the auto-extension of employment authorization would be up to 180 days or the end date of the
○ Prohibiting F nonimmigrants whose admission period, as indicated on their Form I-94, has expired while their timely filed EOS applications and applications for employment authorization based on either an internship with an international organization, curricular practical training (CPT), pre-completion Optional Practical Training (OPT), or post-completion OPT are pending to engage in such employment until their applications are approved;
○ Replacing D/S for I nonimmigrants with admission for a fixed time period until they complete the activities or assignments consistent with the I classification, not to exceed 240 days, with an EOS available for I nonimmigrants who can meet specified EOS requirements;
○ Codifying the definition of a foreign media organization for I nonimmigrant status, consistent with long-standing USCIS and Department of State (DOS) practice;
○ Updating the evidence an alien must submit to demonstrate eligibility for the I nonimmigrant category;
○ Clarifying that I and J-1 nonimmigrants, who are employment authorized with a specific employer incident to status, continue to be authorized for such employment for up to 240 days under the existing regulatory provision at 8 CFR 274a.12(b)(20), if their status expires while their timely filed EOS application is pending, whereas J-2 spouses, who must apply for employment authorization as evidenced by an EAD, do not have the benefit of continued work authorization once the EAD expires;
○ Striking all references to “duration of status” and/or “duration of employment” for the F, J, and I nonimmigrant categories; and
○ Including a severability clause. In the event that any provision is not implemented for whatever reason, DHS proposes that the remaining provisions be implemented in accordance with the stated purposes of this rule.
• Amend 8 CFR 248.1, Eligibility, by:
○ Establishing requirements to determine the period of stay for F or J nonimmigrants whose change of status application was approved before the Final Rule's effective date and who depart the United States, then seek readmission after the Final Rule's effective date; and
○ Codifying the long-standing policy under which DHS deems abandoned an application to change to another nonimmigrant status, including F or J status, if the alien who timely filed the application departs the United States while the application is pending.
• Amend 8 CFR 274a.12, Classes of aliens authorized to accept employment, by:
○ Striking references to “duration of status,” to Form I-539, Application to Extend/Change a Nonimmigrant Status, and to Form I-765, Application for Employment Authorization;
○ Updating the employment authorization provisions to incorporate the proposed revisions in 8 CFR 214.2.
The Secretary of Homeland Security's (the Secretary) authority to propose the regulatory amendments in this rule can be found in various provisions of the immigration laws and the changes in this rule are proposed pursuant to these statutory authorities.
Section 102 of the Homeland Security Act of 2002 (HSA) (Pub. L. 107-296, 116 Stat. 2135), 6 U.S.C. 112, and section 103(a)(1) and (3) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103 (a)(1), (3), charge the Secretary with the administration and enforcement of the immigration and naturalization laws of the United States. Section 214(a) of the INA, 8 U.S.C. 1184(a), gives the Secretary the authority to prescribe, by regulation, the time and conditions of admission of any alien as a nonimmigrant, including F, J, and I nonimmigrant aliens.
Section 248 of the INA, 8 U.S.C. 1258, permits DHS to allow certain nonimmigrants to change their status from one nonimmigrant status to another nonimmigrant status, with certain exceptions, as long as they continue to maintain their current nonimmigrant status and are not inadmissible under section 212(a)(9)(B)(i) of the Act, 8 U.S.C. 1182(a)(9)(B)(i). Like extensions of stay, change of status adjudications are discretionary determinations.
Finally, the INA establishes who may be admitted as F, J, or I aliens. Specifically, section 101(a)(15)(F) of the INA, 8 U.S.C. 1101(a)(15)(F)(i), established the F nonimmigrant classification for, among others, bona fide students qualified to pursue a full course of study who wish to enter the United States temporarily and solely for the purpose of pursuing a full course of study at an academic or language training school certified by ICE, Student and Exchange Visitor Program (SEVP), as well as for the spouse and minor children of such aliens.
Section 101(a)(15)(I) of the INA, 8 U.S.C. 1101(a)(15)(I), established, upon a basis of reciprocity, the I nonimmigrant classification for bona fide representatives of foreign information media (such as press, radio, film, print) seeking to enter the United States to engage in such vocation, as well as for the spouses and children of such aliens.
Section 101(a)(15)(J) of the INA, 8 U.S.C. 1101(a)(15)(J), established the J nonimmigrant classification for aliens who wish to come to the United States temporarily to participate in exchange visitor programs designated by the DOS, as well as for the spouses and minor children of such aliens.
Within DHS, ICE's SEVP is authorized to administer the program to collect information related to nonimmigrant students and exchange visitors under various statutory authorities. Section 641 of The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 110 Stat. 3009-546, 3009-704 (Sep. 30, 1996) (codified as amended at 8 U.S.C. 1372) (IIRIRA), authorizes the creation of a program to collect current and ongoing information provided by schools and exchange visitor programs regarding F and J nonimmigrants during the course of their stays in the United States, using electronic reporting technology where practicable. Consistent with this statutory authority, DHS manages these programs pursuant to Homeland Security Presidential Directive-2 (HSPD-2), Combating Terrorism Through Immigration Policies (Oct. 29, 2001), as amended,
Currently, aliens in the F (academic student), J (exchange visitor), and I (representatives of foreign information media) categories are admitted to the United States under the duration of status framework. However, admitting a nonimmigrant for duration of status creates a challenge to the Department's ability to efficiently monitor and oversee these nonimmigrants, because they may remain in the United States for indefinite periods of time without being required to have immigration officers periodically assess whether they are complying with the terms and conditions of their status. Nor are immigration officers required to make periodic assessments of whether these nonimmigrants present national security concerns. Under the D/S framework, these nonimmigrants are required to have direct interaction with DHS officials only if they file certain applications, such as when applying for employment authorization for optional practical training or for reinstatement if they have failed to maintain status, or if they are the subject of an enforcement action. To address these vulnerabilities, DHS proposes to replace D/S with an admission for a fixed time period. Admitting individuals in the F, J, and I categories for a fixed period of time would require all F, J, and I nonimmigrants who wish to remain in the United States beyond their specific authorized admission period to apply for authorization to extend their stay with USCIS if in the United States or if abroad then to apply for admission at a POE with CBP, thus requiring periodic assessments by DHS in order to remain in the United States for a longer period. This change would impose incremental costs on F, J, and I nonimmigrants, but would in turn protect the integrity of the F, J and I programs by having immigration officers evaluate and assess the appropriate length of stay for these nonimmigrants.
The period of analysis for the rule covers 10 years and assumes the proposed rule would go into effect in 2020. Therefore, the analysis period goes from 2020 through 2029. This analysis estimates the annualized value of future costs using two discount rates: 3 percent and 7 percent. In Circular A-4, OMB recommends that a 3 percent discount rate be used when a regulation
Section 101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i), permits aliens who are bona fide students to temporarily be admitted to the United States solely for the purpose for pursuing a full course of study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic language training program. Principal applicants are categorized as F-1 nonimmigrant aliens and their spouses and minor children may accompany or follow to join them as F-2 dependents.
From 1973 to 1979, F students were admitted for 1-year and could be granted an EOS in increments of up to 1-year if they established that they were maintaining status.
Subsequently, the regulations addressing the admission periods for nonimmigrant students were amended four more times between January 23, 1981, and October 29, 1991.
On April 5, 1983, legacy INS reinstituted D/S, while addressing areas of concern identified after the 1978 implementation of D/S for nonimmigrant students.
On April 22, 1987, legacy INS refined the April 5, 1983, regulatory package, again amending regulations regarding F-1 students.
In 1991, the regulations were further revised to implement Section 221(a) of the Immigration Act of 1990 (IMMACT 90), Public Law 101-649, 104 Stat. 4978, which established a three-year off-campus program for F-1 students.
The J nonimmigrant classification was created in 1961 by the Mutual Educational and Cultural Exchange Act of 1961, also known as the Fulbright-Hays Act of 1961, Public Law 87-256, 75 Stat. 527 (22 U.S.C. 2451,
Prior to 1985, J exchange visitors were granted an initial admission for the period of their program up to one year.
A prospective exchange visitor must be sponsored by a DOS-designated program sponsor to be admitted to the United States in the J nonimmigrant category and participate in an exchange visitor program. The DOS designated sponsor will issue a prospective J exchange visitor a Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status. The DS-2019 permits a prospective exchange visitor to apply for a J-1 nonimmigrant visa at a U.S. embassy or consulate abroad or seek admission as a J-1 nonimmigrant at a port of entry. A J-1 exchange visitor is admitted into the United States for D/S, which is the length of his or her exchange visitor program.
Extensions of J exchange visitor programs are governed by DOS regulations.
Section 101(a)(15)(I) of the INA defines the I classification as, upon a basis of reciprocity, an alien who is a bona fide representative of foreign press, radio, film, or other foreign information media who seeks to enter the United States solely to engage in such vocation, and the spouse and children of such a representative, if accompanying or following to join him. Nonimmigrant foreign information media representatives are currently admitted for the duration of their employment. They are not permitted to change their information medium or employer until they obtain permission from USCIS.
From 1973 to 1985, aliens admitted to the United States in I nonimmigrant status were admitted for a period of 1 year with the possibility of extensions.
DHS welcomes F academic students, J exchange visitors, and I representatives of foreign information media, but it also acknowledges that the sheer size of the population complicates its oversight and vetting functions. Since legacy INS introduced D/S in 1979, the number of F nonimmigrant students admitted into the United States has more than quadrupled. Similarly, since D/S was introduced for J and I nonimmigrants in 1985, the number of exchange visitors admitted into the United States has more than quadrupled while the number of representatives of foreign information media has more than doubled.
The Department uses the Student and Exchange Visitor Information System (SEVIS), a web-based system, to maintain information regarding: SEVP-certified schools; F-1 students studying in the United States (and their F-2
Employees of educational institutions and program sponsors, specifically DSOs and ROs, play a large role in SEVIS. They are responsible for monitoring students and exchange visitors, accurately entering information about the students' and exchange visitors' activities into SEVIS, and properly determining whether the student or exchange visitor's SEVIS record should remain in active status or change to reflect a change in circumstances.
Additionally, DHS expects this change would deter and prevent fraud, as a requirement to check-in directly with an immigration officer inherently is likely to deter some bad actors from exploiting perceived vulnerabilities in the F and J nonimmigrant categories. The same benefits of direct evaluation, better recordkeeping, and fraud prevention also would apply to the I population.
While the F program provides enormous benefits to academic institutions and local communities, the Department is aware that the F-1 program is subject to fraud, exploitation, and abuse. Since 2008, multiple school owners and others have been criminally prosecuted for “pay-to-stay” fraud, in which school officials, in return for cash payments, falsely report that F-1 students who do not attend school are maintaining their student status.
Apart from concerns about DSOs and school owners involved in fraudulent schemes, DHS also has concerns about the actions of the aliens themselves. Some aliens have used the F classification to reside in the United States for decades by continuously enrolling in or transferring between schools, a practice facilitated by the D/S framework.
The use of the F classification to remain in the United States for decades raises doubts that the alien's intention was to stay in the United States temporarily, as required by the INA.
Further, while some school owners and school executives have faced legal consequences for their violation of the law, nonimmigrants admitted for D/S generally do not accrue unlawful presence for purposes of the 3- and 10-year bars described in INA 212(a)(9)(B) and (C), 8 U.S.C. 1182(a)(9)(B) and (C) unless an immigration officer finds they have violated their status in the context of adjudicating an immigration benefit request, or an immigration judge orders them excluded, deported, or removed.
The U.S. Government Accountability Office (GAO) has reported on DHS's concerns about DSOs and nonimmigrant students. In 2019, GAO and ICE published a report identifying fraud risks to SEVP related to managing school recertification and program training. The report included vulnerabilities associated with involving school owners and DSOs in overseeing the maintenance of status of F-1 students.
DHS believes it can mitigate these fraud risks in part through, as this rule proposes, setting the authorized admission and extension periods for F nonimmigrants as the length of the F nonimmigrant's specific program, not to exceed a 2- or 4-year period. It would establish a mechanism for immigration officers to assess these nonimmigrants at defined periods (such as when applying for an extension of stay in the United States beyond a 2- or 4-year admission period) and determine whether they are complying with the conditions of their classification. Immigration officers receive background checks, clearances, and training before DHS authorizes them to implement the nation's immigration laws, which includes as part of adjudicating the application, whether nonimmigrants meet the requirements to extend their stay, whether a student has violated his or her nonimmigrant status without the DSO's awareness or whether DSOs are engaging in fraud by not requiring students to attend classes or by falsifying documents. Immigration officers are further trained to assess applications for fraud indicators, and conduct reviews and vetting that may assist in the detection of fraud or abuse. This would allow DHS to identify and hold accountable aliens who violate their F-1 status and their educational institutions. Under the current D/S framework, DHS might not detect an individual F-1 status violation for an extended period if the student stays enrolled in a school, does not seek readmission to the United States, and does not apply for additional immigration benefits. If DHS makes periodic assessments to verify that F-1 students are maintaining their student status, DHS could better detect and mitigate against these violations as well as violations by their school.
Finally, the D/S framework, because it reduces opportunities for direct vetting of foreign academic students by immigration officers, creates opportunities for foreign adversaries to exploit the F-1 program and undermine U.S. national security. An open education environment in the United States offers enormous benefits, but it also places research universities and the nation at risk for economic, academic, or military espionage by foreign students. Foreign adversaries are using progressively sophisticated and resourceful methods to exploit the U.S. educational environment, including well-documented cases of espionage through the student program.
DHS believes that the national security risks posed by D/S admissions for individuals admitted under the J classification are similar to those posed by the F classification.
Exchange visitor program categories include college and university students, which share similarities with the F-1 nonimmigrant classification. Students enrolled in such programs are pursuing post-secondary studies alongside F-1 nonimmigrants. J-1 college and
Admitting I nonimmigrants for duration of status affords them different treatment from most other nonimmigrants, who are admitted for a specified period of time. The Department believes admitting aliens temporarily in the United States for a fixed period would strengthen vetting and information collection and help immigration officers ensure that the I nonimmigrants are, and will be, engaged in activities that are permissible under INA 101(a)(15)(I). In addition, this rulemaking proposes to require individuals who wish to remain in I nonimmigrant status beyond the end date for their authorized stay to apply for an EOS with USCIS, at which point immigration officers can review their activities in the United States. It also clarifies what DHS would require these individuals to present as evidence supporting their EOS request.
All persons arriving at a port-of-entry to the United States must be inspected by a CBP officer and must apply for admission into the United States with CBP.
However, as described above, certain nonimmigrant categories, including F academic students, J exchange visitors, and I representatives of foreign information media, and their dependents, may be admitted into the United States for D/S instead of a period of time with a specific departure date. DHS is proposing changes to the admission provisions for these particular nonimmigrant classifications, including replacing admissions for “duration of status” with a fixed admission period. This would enable immigration officers to independently and directly verify the continued eligibility of foreign visitors in F, J, or I nonimmigrant status. It would also require aliens who fall under certain criteria to apply more frequently for additional admission periods.
As a foundational matter, DHS proposes to add a new paragraph explaining the period of admission for nonimmigrants described in section 101(a)(15)(F) and (J) who are seeking admission after [effective date of the final rule]. In formulating this proposed rule, DHS considered and addressed various circumstances that might apply when F and J nonimmigrants apply for admission at a POE.
Aliens applying for an admission in either F or J status who, under this proposal, would be eligible to be admitted for the length of time indicated by the program end date noted in their Form I-20 or DS-2019, not to exceed 4 years, unless they are subject to a 2-year admission proposed in 8 CFR 214.2(f)(20) or (j)(6), plus a period of 30 days following their program end date, to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States.
Aliens who departed the United States and are applying for admission before their timely filed EOS application has been adjudicated, but after their previously authorized period of stay has
Aliens who departed the United States and are applying for admission before their timely filed EOS application has been adjudicated, but before their previously authorized period of stay has expired, could be eligible to be admitted either for:
i. The length of time as indicated by the program end date noted in their most recent Form I-20 or DS-2019, not to exceed 4 years, unless they are subject to the 2-year admission proposed in 8 CFR 214.2(f)(20) or (j)(6), plus a period of 30 days to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States, similar to an initial period of admission. If the alien is admitted for the program length (not to exceed 2 or 4 years, as applicable), USCIS would consider the alien's EOS application abandoned because the alien's new fixed date of admission based on the most recent I-20 or DS-2019 had already been determined by CBP upon the most recent admission to the United States, and thus the pending EOS application is extraneous; or
ii. The period of time remaining on their previously authorized period of admission. As proposed, CBP could admit the alien for a period of time not to exceed the unexpired period of stay that was authorized before the alien's departure, plus a period of 30 days to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States. In this scenario, in accordance with proposed 8 CFR 214.1(c)(6), an alien's EOS application is not considered abandoned and USCIS will grant a new period of stay upon subsequent adjudication of the EOS.
Aliens who departed the United States and are applying for admission in F or J status would be eligible to be admitted up to the length of their program listed on the Form I-20 or Form DS-2019, not to exceed a period of 4 years, plus an additional 30 days at the end of the program, as specified in 8 CFR 214.2(f)(5) and (j)(1)(ii)(A), respectively, if the alien seeks admission with a Form I-20 or DS-2019 for a program end date beyond their previously authorized period of admission, or for a period up to the unexpired period of stay authorized prior to departure.
For aliens who departed the United States after timely filing an EOS application and are applying for admission in F or J status after their EOS application is granted, DHS proposes that CBP could admit them for a period of time not to exceed the time authorized by their approved EOS, plus a period of 30 days to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States.
F nonimmigrants who departed the U.S. and are applying for admission to engage in post-completion or STEM OPT.
When applying for admission at a POE while their application for employment authorization is pending, they should have a notice issued by USCIS indicating receipt of the employment authorization application necessary for post-completion or STEM OPT (currently Form I-797).
Finally, under this proposal, aliens applying for admission pursuant to the provisions relating to automatic extension of visa validity could be admitted for the unexpired period of stay authorized prior to their departure.
All of these cases assume, consistent with this proposed rule, that the admission period any F or J nonimmigrant previously admitted for D/S would be transitioned to a fixed date of admission. To provide adequate notice to aliens previously admitted for D/S regarding the date when their admission period ends pursuant to the proposed transition, DHS proposes that an alien's period of admission would expire on the program end date on the alien's Form I-20 or DS-2019 that is valid on the final rule's effective date, not to exceed a period of 4 years from the final rule's effective date, plus an additional period of 60 days for F nonimmigrants and 30 days for J nonimmigrants.
Although some F and J nonimmigrants may have program end dates longer than 4 years, DHS believes that using the program end date on the Form I-20 or DS-2019, up to 4 years from the effective date of the final rule, as the fixed date of admission best aligns with the normal progress these nonimmigrants should be making. This alignment is based on the general structure of post-secondary education in the United States. According to the Department of Education (ED), students can normally earn a bachelor's degree in 4 years.
The proposed 4-year period of admission would not apply to all F and J nonimmigrants. DHS believes a shorter admission period, up to 2 years, would be appropriate for a subset of the F and J population due to heightened concerns related to fraud, abuse, and national security, as discussed below.
Before arriving at the 2- and 4-year admission periods, DHS considered various options. DHS considered a standard 1-year admission for all F and J nonimmigrants. This option would treat all nonimmigrants with F and J status equally and would likely allow for easier implementation by CBP at the POEs. Nevertheless, it could result in significant costs to nonimmigrants and the Department. There are more than 1 million F students enrolled in programs of study that last longer than 1 year.
Another alternative DHS considered was to admit all F and J nonimmigrants to their program end date, not to exceed 3 years. This option would give the Department more frequent direct check-in points with nonimmigrants than a 4-year maximum period of admission would. However, DHS was concerned it would unduly burden many F and J nonimmigrants. As discussed above, 4 years best accounts for the normal progress for most programs. Even considering those F or J nonimmigrants who are admitted into the U.S. after having already completed a portion of their program outside of the U.S., instituting a 3-year maximum period of stay would have required each nonimmigrant pursuing a 4 year program to extend, while 4 years allows additional time to complete a 4-year degree. This alternative also would place greater administrative burdens on USCIS and CBP compared to the proposed 4-year maximum period of admission. USCIS would have to adjudicate EOS applications more frequently, and CBP's workload would increase as individuals would travel to request admission at the POE, with a 3-year maximum period of stay than a 4-year one. Therefore, DHS believes an admission for the program end date, not to exceed 4 years (except for limited exceptions that would limit admissions to 2 years) is the best option. DHS welcomes comments on this proposal.
DHS proposes to change the admission language in the provision relating to extension of visa validity from “shall” to “may” clarifying that CBP always maintains the discretion to determine whether to admit an alien and for the period of admission. This change removes any ambiguity about whether CBP has an absolute duty to admit an alien to clarify that CBP has the discretion to admit an alien for a certain period of time.
DHS proposes technical revisions to the visa revalidation provisions that allow certain F, J, and M nonimmigrants to apply for readmission if eligible for admission as an F, J, or M nonimmigrant and if they are applying for readmission after an absence from the United States not exceeding thirty days solely in contiguous territory or adjacent islands.
DHS proposes minor technical updates to account for inaccurate or no longer applicable terms and cites: First, DHS proposes to strike the reference to INA 101(a)(15)(Q)(ii) and reserve it, as that program no longer exists and is no longer in the INA.
This proposed rule would not create a new form for an EOS application; however, USCIS is in the process of transitioning from paper-based to electronic form processing and some form names and numbers may change. While DHS plans to update existing forms allowing F, J, and I nonimmigrants to apply for an EOS with USCIS, DHS believes it would be more efficient to replace references to specific form names and numbers throughout the current regulations with generally applicable language, specifically, “extension request in the manner and on the form prescribed by USCIS, together with the required fees and all initial evidence specified in the applicable provisions of 8 CFR 214.2, and in the form instructions, including any biometrics required by 8 CFR 103.16.”
Using general language in the regulatory text instead of referring to specific form names and numbers helps both the Department and stakeholders. It allows for technical changes without requiring an entirely new rulemaking to update form names. Stakeholders would receive notice and specific guidance on USCIS' website and in the appropriate form instructions, as they already do for various other benefits. Therefore, DHS proposes to use this language in 8 CFR 214.1(c)(2) and to strike the current phrase exempting F and J nonimmigrants from the requirement to file an EOS, as they would be required to file an EOS if they wish to remain in the United States beyond their specified date of admission.
Like the technical updates to strike the specific form name from 8 CFR 214.1(c)(2), DHS is proposing to strike the references to forms “I-129” and “I-539” in 8 CFR 214.1(c)(5), replacing those specific form numbers with the aforementioned general language.
Additionally, DHS proposes to strike “other than as provided in 214.2(f)(7)” from 8 CFR 214.1(c)(3)(v) to make it clear students must apply for an EOS. This requirement would not apply to other nonimmigrants admitted for D/S, such as A-1 or A-2 representatives of foreign governments and their immediate family members; they would remain ineligible to file an EOS.
As part of the EOS application, USCIS requires biometric collection and will require such collection from F, J, and I nonimmigrants under the proposed rule. USCIS has the general authority to require and collect biometrics (such as fingerprints, photograph, and or a digital signature) from applicants, petitioners, sponsors, beneficiaries, or other individuals residing in the United States for any immigration and naturalization benefit.
Finally, DHS considered how to address the admission of F, J, and I nonimmigrants who timely filed an EOS and any corresponding applications for employment authorization but left the United States before receiving a decision from USCIS. DHS anticipates this scenario would apply mostly to F-1 students applying for post-completion OPT and STEM OPT extensions.
While USCIS generally does not consider an application for EOS abandoned when the nonimmigrant leaves the United States,
Where an alien in F, J, or I status timely files an application for EOS, leaves the United States before USCIS approves that EOS application, and applies for admission to continue his or her activities for the balance of the previously authorized admission period, USCIS would not consider the EOS application abandoned.
However, where the alien leaves the United States and applies for admission while his or her EOS application is pending and is admitted with a Form I-20 or DS-2019 for a program end date beyond their previously authorized period of admission, the pending EOS is deemed abandoned, and the admit until date provided by CBP on the alien's Form I-94 governs.
The Department considered a policy whereby an F, J, or I nonimmigrant would automatically abandon an EOS application upon departing the United States. However, the Department believes such a strict requirement would not be practical, because people cannot always predict when they will have to travel.
Regarding applications for employment authorization for F-1s and J-2s, CBP does not adjudicate applications for employment authorization. USCIS would continue processing any such applications, notwithstanding a departure, and, if the application is approved, USCIS will not issue an EAD with a validity date that exceeds the fixed date of admission provided to the alien at the POE. For example, an F-1 student wishing to engage in post-completion or a STEM OPT extension would need to file both an EOS application and an application for employment authorization. Where the alien had departed the United States before his or her application are
In all events, when an F-1 or a J-2 nonimmigrant travels while the employment authorization or EOS application is pending, he or she is still expected to respond to any Request for Evidence (RFE) and to timely submit the requested documents. Because USCIS only sends RFEs to U.S. addresses, aliens traveling outside the United States while applications are pending are advised to make necessary arrangements to determine whether they have received an RFE relating to their application and to timely respond to any RFE.
DHS proposes to generally allow all F and J nonimmigrants present in the United States on [the Final Rule's effective date], who are validly maintaining that status and who were admitted for D/S, to remain in the United States in F or J status, without filing an EOS request, up to the program end date reflected on their Form I-20 or DS-2019 that is valid on the Final Rule's effective date, not to exceed 4 years from the effective date of the Final Rule, plus an additional 60 days for F nonimmigrants and 30 days for J nonimmigrants. An alien who departs the United States and seeks admission after the Final Rule's effective date becomes subject to the fixed date framework imposed by this rule.
F and J nonimmigrants who depart the United States after the rule's effective date and before the end date reflected on their Form I-20 or DS-2019 would be readmitted with a new fixed admission period, like any other newly admitted F or J nonimmigrant, as provided for in proposed 8 CFR 214.1(a)(4). Aliens whose admission period is converted from D/S to a fixed period who would like to seek additional time to complete their studies, including those requesting post-completion OPT or STEM OPT extensions or starting a new course of study or exchange visitor program, would need to file an EOS application with USCIS for an admission period up to the new program end date listed on the Form I-20 or DS-2019, or successor form, reflecting such an extension or transfer, up to a maximum of 4-years, or 2 years, as appropriate.
Regarding pending applications for employment authorization during the transition period, aliens in F status who are subject to the transition and who are seeking post-completion OPT and STEM-OPT employment authorization would be authorized to remain in the United States while the application is pending with USCIS if: (1) They are in the United States on the effective date of the final rule with admission for D/S; (2) they properly filed an application for employment authorization; and (3) their application is pending on the final rule's effective date. Unless otherwise advised by USCIS, they would not have to file for an EOS or re-file an application for employment authorization.
Aliens in F-1 status with pending employment authorization applications, other than post-completion OPT and STEM OPT, also do not need to file for an extension or refile an employment authorization application. As long as these F-1s continue to pursue a full course of study and otherwise meet the requirements for F-1 status, they continue to be authorized to remain in the United States until the program end date listed on the Form I-20, plus 60 days, regardless of whether the employment authorization is approved or denied.
DHS believes that this transition proposal would not be unreasonably burdensome on F and J nonimmigrants. Many would be able to complete their programs per the terms of their initial admission (D/S) using the original program end date as an expiration of their authorized period of stay. DHS would grant such periods, which include an additional 60 days for Fs and 30 days for Js as provided in their previous admission, automatically without an application or fee. With this option, DHS believes that the majority of F and J nonimmigrants will be shifted to a fixed period of admission of 4 years or less, except for some F-1 students and J-1 exchange visitors. For example, J-1 research scholars and alien physicians who have program end dates for up to 5 or 7 years respectively, would need to apply for an EOS before the 4-year maximum period of stay expires,
Another benefit of this option is that it would enable DHS to transition F and J nonimmigrants to an admission for a fixed time period without unduly burdening them, USCIS or CBP. This option would ensure that no F and J nonimmigrants remain in the United States indefinitely by requiring all F and J nonimmigrants admitted for D/S who wish to extend their stay beyond their program end date or the four year maximum, whichever is applicable, to either file an EOS request or depart the United States and apply for admission at a POE by their program end date or the four year maximum period of stay from the final rule's effective date, plus an additional 60 days for Fs, and 30 days for Js.
In proposing these transition procedures, DHS took into consideration the effect of transitioning to a fixed period of admission will have on F and J nonimmigrants originally admitted for D/S who chose to temporarily come to the United States to pursue a program of study or an exchange visitor program. DHS believes the proposed changes would not significantly affect the reliance interests of these nonimmigrants admitted for D/S. DHS is not proposing to change the fundamental requirements to qualify for these nonimmigrant statuses, rather the proposal is only to change the length of time that an individual may lawfully remain in the United States in F or J status without filing an extension of stay. Admitting these categories of nonimmigrants for a fixed period of admission simply confirms that the admission is temporary and clearly communicates when that temporary admission period ends. Further, as is the case for the fixed period of admission policy more generally, a fixed
At the same time, this proposed process would provide immigration officials an opportunity to directly review and determine whether F and J nonimmigrants who wish to remain in the United States beyond their fixed period of admission are complying with U.S. immigration law and are indeed eligible to retain their nonimmigrant status. If there are F or J nonimmigrants relying on a D/S admission in an attempt to permanently remain in the United States, or otherwise circumvent their authorized status, this proposed process would allow DHS to detect and deny an extension of stay request.
DHS considered several alternatives before determining the above proposal was the best option. First, DHS considered whether to impose a consistent length for the fixed admission for all F and J nonimmigrants transitioning from a D/S admission, such as 1 or 3 years from the final rule's effective date. While this proposal would provide a standard end date, DHS was concerned about the expense and workload implications of this option on all stakeholders and DHS. As noted, DHS expects most F and J nonimmigrants to complete their program of study or exchange visitor program within a 4-year period. A date that does not align with this expectation could place a significant burden on the affected F and J nonimmigrants and on their academic institutions or exchange visitor programs' sponsors and employers, as applicable. USCIS would be especially affected if a significant percentage of these nonimmigrants chose to remain in the United States and file for an EOS in order to complete the balance of their program, study, or work activity. While USCIS could try to anticipate the volume, the sheer number of simultaneous nonimmigrants filing for EOS could significantly lengthen processing times. Because the proposed option is less burdensome on F and J nonimmigrants and on DHS, DHS does not believe that ending D/S for all F and J nonimmigrants at timeframes that do not align with the expected length of stay presents the best way to transition from D/S to admission for a fixed time period. The proposed transition period is consistent with the generally applicable policy and allows for the normal progress for most programs that nonimmigrants should be making. Further, it ensures that these nonimmigrants are complying with the terms and conditions of their status by requiring them to apply to extend their status by the end date on the I-20 or DS-2019, not to exceed four years.
A second option that DHS considered was to allow F and J nonimmigrants to keep their D/S period of admission until they depart the United States. The Department rejected this alternative, however, because one of the main reasons for proposing this rule is to address current abuse tied to the D/S period of authorized admission. Adopting this alternative would allow aliens currently violating their nonimmigrant status to largely avoid the consequences of non-compliance with U.S. immigration laws by simply remaining in the United States, as otherwise described in this rule.
Third, DHS evaluated an option to allow F and J nonimmigrants to retain their D/S admission up to their program end date, with the transfer to a fixed admission date implemented through any of the following actions of the nonimmigrant: (i) Departure from the United States; (ii) transfer to a different institution or sponsor; (iii) failure to maintain a full course of study; (iv) approval for reinstatement;
Fourth, DHS weighed whether requiring various categories of F or J nonimmigrants to apply for an EOS within 60 days after the final rule's effective date would better address national security and fraud issues rather than transitioning all nonimmigrants from D/S to an admission for a fixed time period by using the program end date up to a maximum period of four years. To identify the categories that would be required to file an EOS soon after the final rule's effective date, DHS considered adopting the limiting factors listed at proposed 8 CFR 214.2(f)(20) and (j)(6) (including certain countries and U.S. national interests, unaccredited institutions, E-Verify participation, and language training programs). While such an approach could prioritize certain aliens for prompt, direct vetting and oversight, applying it to hundreds of thousands of nonimmigrants who had been admitted into the United States under D/S could have a significant impact. DHS believes that this approach could result in lengthy processing timeframes as the affected population would be required to file an EOS at the same time. Given USCIS' processing times, DHS does not believe there would be significant efficiency to excepting certain F or J categories from applying for EOS later than other F or J categories. In addition, this short timeframe to file EOS may be burdensome on F, Js, and the institutions and sponsors as they adapt to a new process, as compared with the proposed transition period within the 4-year period.
In sum, DHS's proposal is to transition all F and J nonimmigrants to a fixed admission date by using the program end date noted on their Form I-20 or DS-2019 (with the exception of F students engaging in post-completion or a STEM OPT extension who would use their EAD's expiration date), not to exceed 4 years, plus an additional 60 days for Fs and 30 days for Js as provided in their previous admission. DHS believes this is a natural way to transition the majority of these nonimmigrants to a fixed admission date without creating any loopholes, such as those that could be created by allowing Fs and Js to retain their duration of status, potentially permitting those who are abusing their status to continue to do so without the oversight and vetting conducted through
Turning to I nonimmigrants, DHS proposes an automatic extension of the length of time it takes the alien to complete his or her activity, for a period of up to 240 days.
Finally, the transition procedures would not apply to F, J, or I aliens who are outside the United States when the final rule takes effect, or to any aliens present in the United States in violation of their status.
DHS is proposing various changes under the regulations that provide the framework for admission, extension, and maintenance of status for F nonimmigrants. These changes would eliminate D/S, require students to file an EOS if requesting to remain in the United States beyond the period of their admission, and clarify terms to ensure that the activities an F nonimmigrant has engaged in are consistent with those of a bona fide student.
As a preliminary matter, DHS is proposing to strike the current regulation that allows F nonimmigrants to be admitted for D/S. DHS would replace it with a provision allowing F nonimmigrants to be granted status for the length of their program, not to exceed 4 years and subject to eligibility limitations, as well as national security and fraud concerns.
Second, DHS proposes to retain in the regulations the statutory limitation that restricts public high school students to an aggregate of 12 months of study at any public high school(s).
Third, F-1 students who are applying to attend an approved private elementary or middle school or private academic high school would continue to be covered by the provisions of paragraph (f)(6)(i)(E). These provisions require the DSO to certify a minimum number of class hours per week prescribed by the school for normal progress toward graduation.
Fourth, DHS is proposing to exempt border commuter students from the general length of admission provisions.
Fifth, F-1 students in a language training program would be restricted to a lifetime aggregate of 24 months of language study, which would include breaks and an annual vacation.
Sixth, DHS proposes a maximum admission period of up to 2 years for certain students.
• Aliens who were born in or are citizens of countries on the State Sponsor of Terrorism List. The State Sponsor of Terrorism List are countries, as determined by the Secretary of State, to have repeatedly provided support for acts of international terrorism pursuant to three laws: Section 6(j) of the Export Administration Act, section 40 of the Arms Export Control Act, and section 620A of the Foreign Assistance Act. Designation as a “State Sponsor of Terrorism” under these authorities also implicates other sanctions laws that penalize persons and countries engaging in certain trade with state sponsors. There are currently four countries designated as a state sponsor of terrorism under these authorities: The Democratic People's Republic of Korea (North Korea), Iran, Sudan, and Syria. Under this proposal, DHS anticipates admitting those who were born in or are citizens of those countries for a maximum period of up to 2 years. The Department believes it is appropriate to apply additional scrutiny on those born in these countries and citizens of these countries who are temporarily studying in the United States to ensure that these aliens do not pose risks to the national security of the United States. For easier reference and to ensure affected stakeholders have advanced notice of the countries on the State Sponsors of Terrorism List prior to choosing a country and institution to study in, DHS proposes to publish a
• Aliens who are citizens of countries with a student and exchange visitor total overstay rate of greater than 10 percent according to the most recent DHS Entry/Exit Overstay report.
A primary aim of this proposed rule is to institute policies that would encourage aliens to maintain lawful status and reduce instances in which F, J, and I nonimmigrants unlawfully remain in the United States after their program or practical training ends. Under this proposed rule, aliens who remain in the United States beyond a fixed time period generally would begin accruing unlawful presence. Depending on the extent of unlawful presence accrual, an alien may become inadmissible upon departing the United States and will be ineligible for benefits for which admissibility is required, such as adjustment of status to that of a lawful permanent resident.
Finally, the “greater than 10%” student and exchange visitor overstay rate threshold aligns with the percentage described by the Administration as a `high' overstay rate for the purpose of enabling DHS and DOS to “immediately begin taking all appropriate actions that are within the scope of their respective authorities to reduce overstay rates for all classes of nonimmigrant visas.”
To ensure affected stakeholders have notice of which countries have an overstay rate exceeding that threshold, DHS proposes to issue FRNs listing countries with overstay rates triggering the 2-year admission period. The first such FRN would also list countries that have been designated as State Sponsors of Terrorism, and provide a link where
DHS proposes to publish this FRN contemporaneously with the final rule. Any changes to the list would be made by a new FRN.
• U.S. national interest. Other factors that would be incorporated into a FRN would be a limitation of a student's period of stay to a maximum of a 2-year period based on factors determined to be in the U.S. national interest, which may include but not be limited to circumstances where they may be national security concerns or risks of fraud and abuse. For example, the Secretary of Homeland Security could determine that it is appropriate to limit the length of admission of students who are enrolled in specific courses of study, such as nuclear science. DHS believes collecting information more often and applying additional vetting helps mitigate national security risks. If the DHS Secretary determines that U.S. national interests warrant limiting admission to a 2-year maximum period in certain circumstances, then it would publish an FRN to give the public advance notice of such circumstance.
• Aliens who are not attending institutions accredited by an accrediting agency recognized by the Secretary of Education. The goal of accreditation is to ensure that by post-secondary institution provides an education that meets acceptable levels of quality. Specifically, the accreditation process involves the periodic review of institutions and programs to determine whether they meet established standards. and are achieving their stated educational objectives. Schools meeting the accreditation requirement are subjected to significant oversight by the accrediting body, including recurring assessment of the institutions' programs to ascertain their effectiveness in helping students attain both academic knowledge and professional skills. The intervals at which schools must submit to accreditation review vary across accrediting agencies, but review typically occurs at least every 10 years, with the accrediting agencies themselves subject to review by ED, to determine whether to grant or renew recognition, at least every 5 years.
Accreditation may be institutional, meaning it applies to the school as a whole and covers any educational programs the school offers, or specialized/programmatic, meaning it covers specific programs only.
The history of problems encountered at unaccredited schools approved for the attendance of F-1 students demonstrates the value of promoting attendance at accredited schools. For example, in 2014, the founder of Tri-Valley University, an unaccredited institution in Pleasanton, California, Susan Xiao-Ping Su, was sentenced to more than 16 years in prison for her role in a massive, highly profitable visa fraud scheme that lasted 2 years.
Also in 2014, the former head of College Prep Academy in Duluth, Georgia, another unaccredited institution, was sentenced to nearly 2 years in prison for overseeing an immigration fraud scheme that brought women into the country through illegally obtained F-1 visas.
More recently, in 2018, the owner of four unaccredited schools in and around Los Angeles was sentenced to over 1 year in prison for his role in conducting a “sophisticated, extensive, and lucrative” immigration document fraud scheme that lasted for at least 5 years.
DHS believes that the accreditation limitation will curtail the potential for fraudulent use of F-1 student status. It will provide a direct check-in point with the Department if a nonimmigrant enrolled in an unaccredited school wishes to remain in the U.S. beyond 2 years. While DHS is not imposing an ED-accreditation requirement on post-secondary institutions in order to be certified by SEVP to accept foreign students, the Department is proposing to rely on the accreditation process as a means to promote the integrity of the immigration system. DHS hopes that post-secondary institutions enrolling foreign students thereby would be incentivized to pursue accreditation by an ED-recognized agency, including meeting all requirements, rather than potentially lose future international students and associated revenue to those schools that do.
Because ED only has the authority to recognize post-secondary accreditors, aliens attending elementary, middle or high school would not be subject to this limitation and may be eligible for the maximum 4-year period of admission. A link to information about ED-accredited agencies would be included in a FRN that would be published concurrently with the final rule and updated as needed (including if ED changes the web page where it publishes accredited agencies).
• E-Verify Participation. USCIS administers E-Verify, a web-based
DHS believes that schools that are willing to go above and beyond to ensure compliance with immigration law in one respect (verifying identity and employment eligibility as required under section 274A of the INA and taking the additional step to confirm Form I-9 information using E-Verify) are more likely to comply with immigration law in other respects (SEVP purposes) by successfully monitoring their F students. DHS therefore proposes that E-Verify participation warrants a 4-year admission period for students of those schools, subject to other limitations on admission that may apply. Conversely, there is less confidence in schools that are unwilling to do all they can to ensure they have a legal workforce to support students' academic programs by participating in E-Verify. Accordingly, DHS proposes that it would monitor whether students of such schools maintain status more frequently by limiting their admission period to 2 years.
DHS believes that the E-Verify proposal would incentivize more schools to enroll in E-Verify. Should more schools enroll in E-Verify, DHS would be better assured that schools were meeting the certification standards at 8 CFR 214.3(a)(3). This provision is associated with evaluating whether an educational institution is a bona fide school possessing the necessary facilities, personnel, and finances. It helps ensure that F nonimmigrants are choosing educational institutions that have demonstrated a willingness to best ensure compliance with immigration laws in one respect (
E-Verify could also provide DHS another data point to assess and independently verify whether an educational institution has teachers, employees, and/or offices proportionate to the number of students that are enrolled and in attendance. When enrolling in E-Verify, employers indicate the size of the organization which can provide DHS with additional information about whether the school has necessary personnel as required by 8 CFR 213.3(a)(3). A school that uses E-Verify when they hire such employees is doing as much as it can to ensure they have a stable workforce to operate as a school. While the school's certification requirements would not be assessed when a student applies for EOS, the fact that a school participates in E-Verify should give DHS a greater level of assurance that the school is likely to comply with all other federal requirements and operates in accordance with the certification standards for which it is responsible.
When determining how to apply the 2-year admission limitation, DHS considered how to address situations when an alien admitted in F status for a 4-year period subsequently would become subject to a 2-year period if seeking admission. For example, a student may have a 4-year period of admission, but in the midst of this period, an FRN may be published indicating that his or her home country now has a student and exchange visitor total overstay rate of greater than 10 percent, as stated in the DHS Entry/Exit Overstay Report. Notwithstanding such intervening events, aliens will remain subject to the period of admission approved upon his or her application for admission, extension of stay, or change of status. Further, changing the terms of admission at irregular intervals for particular classes of F nonimmigrants would introduce significant confusion, make their stay unpredictable, and so potentially discourage some students from pursuing their studies in the United States. Therefore, DHS is proposing to allow such aliens to remain in the United States for the remainder of whatever period of admission is afforded them when they are admitted in, extend their stay in, or change status to F-1 status.
However, if such aliens depart the United States, the departure and subsequent application for admission would trigger a new review and these aliens would be treated the same as any other aliens applying for admission. At that point they would become subject to applicable terms and conditions of admission, including the 2-year limitation. Similarly if a student needs to file an EOS application in the midst of his or her 4-year admission period (for example, a student decides to request pre-completion OPT and receives a Form I-20 reflecting the new program end date), and their EOS application is filed on or after the student is subject to a 2-year maximum period of stay, that would trigger the new 2-year maximum period of stay. Similarly, if a student needs to file an EOS or departs and applies for readmission, and the student files or applies after he or she is no longer subject to the 2-year limitation, that would trigger the 4-year maximum period of stay.
DHS invites comments on all these proposals, and specifically the limitations on the language training schools, the U.S. national interest factor, E-Verify, whether additional limitations should be added, and whether exemptions to the limitations on admission should be possible.
Under current regulations, F-1 students who continue from one educational level to another are considered to be maintaining status.
While there are legitimate cases of students wishing to gain knowledge at a lower or the same educational level, the traditional path of study progresses from a lower educational program to a higher one. The regulations contemplate a model consistent with the vast majority of bona fide students following
DHS thus proposes to limit the number of times a student can change to another program within an educational level, such as to pursue another bachelor's or master's degree. Specifically, any student who has completed a program at one educational level would be allowed to change to another program at the same educational level no more than two additional times while in F-1 status, for a total of three programs for the lifetime of the student.
DHS believes that it is reasonable in most cases for a student to progress to a higher educational level rather than continue at the same level or pursue a lower level of education. When, after completion of one program, an F-1 wishes to pursue a new program at a lower educational level more than once or a new degree at the same educational level more than twice (for a total of three programs), concerns are raised regarding whether the F-1 alien is a bona fide student who intends to temporarily and solely pursue a full course of study rather than pursuing different degrees as a de facto way to permanently stay in the United States.
Aliens in F-1 status seeking to change to a new program following completion of a program at the same educational level (up to two additional times after completion of the initial program) or seeking to change to a lower educational level (no more than one additional time after completion of the initial program) would need to obtain a new Form I-20 from their DSO reflecting the new program. If the new program completion date exceeds the authorized period of admission, the alien would then apply for EOS on the form designated by USCIS, with the required fee and in accordance with form instructions, including any biometrics required by 8 CFR 103.16.
DHS, of course, determines in all instances on a case-by-case basis whether an alien who has completed his or her initial program and seeks to change programs within the same level or to a lower educational level, has the requisite nonimmigrant intent, is a bona fide student, and has adequate financial resources to continue their studies, or is misusing the F-1 program as a pretext to unlawfully extend their stay in the United States.
DHS recognizes that this proposal will require updates to SEVIS and other systems. Because the timeframe for those updates is not fixed and there could be technical issues regarding implementation, DHS is proposing to include a provision whereby the Department may delay or suspend implementation, in its discretion, if it determines that the change in educational level limitation is inoperable for any reason.
DHS considered a complete ban on changes to a lower or same educational level, supported by the assumption that these F-1 aliens are not reliably continuing to make normal progress towards the completion of their educational objectives. However, the Department believes such an option to be overbroad—there may be exceptions to the general upward progression in educational levels. For example, a student might wish to pursue an MBA following the completion of his or her Ph.D.
Additionally, DHS proposes to retain the term “educational” with respect to the change in level as the Department believes it more accurately reflects current academic models. Specifically, “educational” captures programs for non-degree students, whereas using a term such as “degree” may not. For example, currently, an F-1 student would not qualify for additional post-completion OPT if he or she changes to a certificate program, given that the certificate program is not a “higher educational level.” Similarly, certificate programs for professional advancement are typically not considered to be a “higher educational level” allowing students to qualify for additional post-completion OPT.
DHS believes these proposals will encourage foreign students to pursue a general upward progression in degree levels, which is expected from a qualified bona fide student who is coming to the United States temporarily and solely to pursue a course of study. While this change could dissuade some foreign nationals from choosing to study in the United States, the Department believes that this restriction would not significantly impact the choice of bona fide students who come to the United States temporarily to complete a full course of study. The F-1 program, with its statutory requirement that an alien be a bona fide student who seeks to enter the United States temporarily and solely for the purpose of pursuing a full course of study, should not be used by aliens wishing to remain in the United States permanently or indefinitely. These proposals would better ensure that this statutory intent is fulfilled without hindering the options presented to bona fide students seeking higher educational levels and thus create a balanced solution to this issue. DHS welcomes comments on this proposal.
DHS believes that the time allotted for F students to prepare for departure should be revised. Under current regulations, F-1 students are provided 60 days following the completion of
This 60-day period is also six times longer than certain nonimmigrants who are authorized to remain in the United States for years, but are only provided with a 10-day period to depart the United States. For example, DHS provides a 10-day period following the end of the alien's admission period as stated on his or her Form I-94 for individuals in the E-1, E-2, E-3, H-1B, L-1, and TN classifications in a 2016 rulemaking.
DHS believes that 30 days for the F nonimmigrant population is the appropriate balance between a 60-day and a 10-day period of departure. DHS believes that the F category, albeit distinct from M or J, shares a core similarity in that many aliens in these categories are seeking admission to the United States to study at United States educational institutions. Thus, DHS thinks that these categories should have a standard period of time to prepare for departure, or take other actions to extend, change, or otherwise maintain lawful status. DHS thinks that 30 days is an adequate period for F-1 students to prepare for departure and is in line with similar categories (the M and J departure periods) but welcomes comments on whether a different period for departure would be more appropriate for the F nonimmigrant classification, including whether there are meaningful distinctions between F nonimmigrant students and both J exchange visitors and M vocational students that should be considered. DHS also welcomes comments regarding whether the 30-day departure period should be reflected in the Form I-94.
Additionally, in the 2016 rulemaking establishing a 10-day grace period for certain nonimmigrant classifications, DHS chose to remove the phrase “to prepare for departure from the United States or to seek an extension or change of status based on a subsequent offer of employment” from the proposed regulatory text relating to the purpose of the grace period, with the justification that it was unnecessarily limiting and did not fully comport with how the existing 10-day grace period may be used by individuals in the H, O and P nonimmigrant [visa] classifications.
DHS also proposes to clarify that the proposed period to prepare for departure or otherwise maintain status is 30 days from the Form I-94 (or successor form) end date or the expiration date noted on the Employment Authorization Document (Form I-766 or successor form), as applicable, to prepare for departure from the United States, or otherwise obtain lawful status.
Finally, DHS proposes to retain the current regulatory language that allows a 15-day period for departure from the United States if an alien is authorized by the DSO to withdraw from classes, but no additional time for departure if the alien fails to maintain a full course of study without the approval of the DSO or otherwise fails to maintain status.
Each year, a number of U.S. employers seek to employ F-1 students and file a Form I-129, Petition for a Nonimmigrant Worker, with USCIS, along with a change of status request, to obtain classification of the F-1 student as an H-1B nonimmigrant worker. The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor's or higher degree in the specific specialty, or its equivalent.
DHS proposes to retain the cap-gap provisions automatically granting, for a certain period of time, the extension of F-1 students' stay and grant of employment authorization for aliens who are the beneficiaries of timely filed H-1B cap-subject petitions with an employment start date of October 1, and requesting a change of status. Under current regulations, the automatic cap-gap extension is valid only until October 1 of the fiscal year for which H-1B status is being requested.
To account for this operational issue, DHS is proposing to revise 8 CFR 214.2(f)(5)(vi) to provide an automatic extension of F-1 status and post-completion OPT, as applicable, until April 1 of the fiscal year for which the H-1B petition is filed. The F-1 student would not need to file a separate EOS if their fixed date of admission passed during the period before April 1, as this provision would extend the applicant's F-1 status automatically if an H-1B petition requesting a change of status is timely filed on behalf of the F-1 student.
DHS believes that proposing to change the automatic extension end date from October 1 to April 1 would avoid disruptions in employment authorization that some F nonimmigrants seeking cap gap extensions have been experiencing over the past several years. DHS fully expects USCIS would be able to adjudicate all H-1B cap-subject petitions requesting a change of status from F-1 to H-1B by that April 1 deadline. In addition to avoiding employment disruptions, the lengthier extension of F status and employment authorization for aliens with pending H-1B petitions until April 1, up to one year, depending on when the H-1B petition was filed, accounts for USCIS' competing operational considerations and would enable the agency to more appropriately balance workloads across petition types.
DHS is also proposing to clarify that the cap-gap provision does not authorize employment for dependents who seek to change status from F-2 status to H-1B or H-4 (spouse or child of H nonimmigrant) status.
DHS believes that these changes would result in more flexibility for both students and the Department and would help to avoid disruption to U.S. employers who are lawfully employing F-1 students while a qualifying H-1B petition is pending. However, DHS is concerned with the impacts of this provision on U.S. workers and students, especially if it would result in increased competition for certain jobs, and invites comments from the public on this issue.
DHS proposes to strike “duration of status” from 8 CFR 214.2(f)(5)(vi) and clarify that an alien with F-1 status whose admission period as indicated on his or her Form I-94 has expired, but who has timely filed an EOS application, would be authorized to continue pursuing a full course of study after the end date of his or her admission until USCIS adjudicates the EOS application.
The shift to a fixed date of admission has implications for employment authorization. Currently, DSOs may authorize certain types of employment authorization, including on campus employment and CPT,
For on-campus employment where no EAD is needed, DHS proposes to allow aliens in F-1 status to continue to be authorized for on-campus employment while their EOS applications with USCIS are pending, not to exceed a period of 180 days.
Likewise, DHS is proposing an automatic extension of off-campus employment authorization for up to 180-days during the pendency of the EOS application, for F-1 aliens who have demonstrated severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C). These circumstances may include loss of financial aid or on-campus employment without fault on the part of the student, substantial fluctuations in the value of currency or exchange rate, inordinate increases in tuition and/or living costs, unexpected changes in the financial condition of the student's source of support, medical bills, or other substantial and unexpected expenses.
For F-1 aliens granted off-campus employment authorization on the basis of severe economic hardship resulting from emergent circumstances pursuant to 8 CFR 214.2(f)(5)(v), DHS is proposing an automatic extension of such employment authorization with a different validity period than the general 8 CFR 214.2(f)(9)(ii)(C) severe economic hardship employment authorization extension described above while their EOS applications are pending. As first promulgated in 1998, the regulations provide necessary flexibility to address unforeseeable emergencies by allowing DHS, by notice in the
As evidence of these automatic extensions of employment authorization, DHS is proposing that the F-1 aliens' Form I-94 (or successor form) or Employment Authorization Document (EAD, Form I-766, or successor form), for F-1s requiring an EAD, when combined with a notice issued by USCIS indicating receipt of a timely filed extension of stay application (such as the Form I-797), would be considered unexpired until USCIS issues a decision on the EOS application, not to exceed 180 days.
DHS believes that continued employment authorization for aliens wishing to work as an intern for an international organization, engage in CPT, or in pre- or post-completion OPT present materially different circumstances from those pertaining to aliens who are experiencing emergent circumstances, severe economic hardship, or engaging in on campus employment, and that the same automatic extension policies therefore should not apply to them.
First, related to the employment authorization requests to engage in an internship with an international organization, such requests arise when a student has an opportunity for an internship with certain organizations and these make up a smaller proportion of employment authorization applications. These requests are not tied to economic necessity or emergent circumstances. Therefore, DHS is not
Second, students engaging in CPT or pre-completion OPT are still enrolled in school and pursuing a curriculum. DHS expects that DSOs would not authorize any practical training for a length of time beyond their fixed date of admission on the I-94, so an automatic extension of employment authorization would be inappropriate. DHS proposes to add a sentence at the end of 8 CFR 214.2(f)(10)(i) stating that curricular practical training may not be granted for a period exceeding the alien's fixed date of admission as noted on his or her Form I-94, and that such alien must not engage in curricular practical training until USCIS approves his or her timely-filed EOS request.
Third, where a student timely files an EOS and an application to engage in post-completion OPT employment, DHS believes the current and longstanding policy of obtaining authorization from USCIS, in the form of an EAD, before an alien may work in the United States is appropriate. Applications must be reviewed and adjudicated to determine that students are eligible for OPT. Students engaging in post-completion OPT often have less contact with their schools and DSOs, and this underscores the importance for DHS to directly examine these applicants, ensuring that their contact information is accurate, as well as checking that they have not engaged in any unauthorized activities.
DHS does not propose any changes to the STEM OPT extension provision at 8 CFR 274a.12(b)(6)(iv) under which an Employment Authorization Document issued for OPT is automatically extended for a period of up to 180 days while a timely filed application for employment authorization (Form I-765) for STEM OPT extension is pending. Students who are eligible for the STEM OPT extension have previously applied for OPT and received an EAD. Their applications were adjudicated by USCIS to determine that they were eligible for OPT. In addition, the STEM OPT program has requirements and safeguards for both students and employers that other practical training programs do not. For example, the student's STEM OPT employer is required to be enrolled in E-Verify, and the terms and conditions of a STEM practical training opportunity, including duties, hours, and compensation, must be commensurate with the terms and conditions applicable to the employer's similarly situated U.S. workers in the area of employment.
Finally, DHS is proposing some technical amendments. In 8 CFR 214.2(f)(9)(i), the word “Commissioner” would be replaced by “Secretary”; the term “residents” following “United States” would be replaced by “workers” for better accuracy; the term “Form I-20 A-B” would be replaced by the currently used form, “Form I-20”; and the end of the paragraph would be revised to clarify that an alien who has a timely filed application for an EOS may engage in on-campus employment for a period not to exceed 180 days, or until USCIS approves his or her application, whichever is earlier.
Under current regulations, F-1 students are able to obtain a program extension from a DSO as long as they are maintaining status and making normal progress toward the completion of their educational objectives.
Therefore, DHS proposes not to use a “normal progress” standard with respect to seeking an extension of an authorized period of stay. In addition to the requirement that the applicant obtain an I-20 from the DSO recommending extension of the program, the applicant will be required to file an EOS application to request additional time to complete their current course of study beyond their authorized period of admission.
Apart from pursuing a new course of study, DHS appreciates that the time for study can legitimately fluctuate given the changing goals and actions of the student. For example, a student may experience compelling academic or medical reasons, or circumstances beyond their control that cause them to need additional time in the United States beyond the predetermined end date of the program in which they were initially enrolled. DHS understands these circumstances arise and believes these scenarios present an appropriate situation for the Department to directly evaluate the nonimmigrant's eligibility for additional time in the United States. However, instead of effectively extending their stay through a DSO's program extension recommendation in SEVIS, students would have to obtain an I-20 from the DSO recommending a program extension and apply to USCIS for an extension of stay. Immigration officers thereby would be able to conduct appropriate background and security checks on the applicant at the time of the extension of stay application and directly review the proffered evidence to ensure that the alien is eligible for the requested extension of stay, including through assessing whether the alien remains admissible.
In these circumstances, the Department would only extend the stay beyond the prior admission date (typically the program end date for which the student was admitted to the United States as a F-1 nonimmigrant or was granted based on a change of status or extension of stay) of an otherwise eligible F-1 student requesting additional time to complete their program if the additional time needed is due to a compelling academic reason, documented medical illness or medical condition, or circumstance that was beyond the student's control. As with all nonimmigrant extensions of stay, an alien seeking an extension of stay generally must have continually maintained status.
By way of illustration, a student with a fixed date of admission may request an additional 4 months to complete his program because he was authorized to drop below a full course of study for one semester due to illness. The student would need to request an updated I-20 from the DSO recommending a program extension. In such an instance, an immigration officer could review the proffered evidence and ensure that the claim is supported by documentation from a medical doctor. Conversely, a student may request an EOS for additional time to complete an associate program, but fail to submit evidence they were properly authorized to drop below a full course of study. Under the proposed regulation, the immigration officer would have discretion to request transcripts from the student. If a student's transcripts reflect the student failed multiple classes one semester, an immigration officer could determine the student has failed to maintain status due to a failure to carry a full course of study as required. In another example, a student could submit an EOS request to continue in the same program because he or she was unable to take all the required classes for his or her major due to over-enrollment at the school. Again, an officer could request additional information, if needed, to determine that the student was maintaining a full course of study (or, if not, was properly authorized to reduce his or her course load), but due to the school's high enrollment, the student may validly require an additional semester to complete the degree requirements in order to graduate.
Therefore, DHS is proposing to eliminate a reference to “normal progress” with respect to seeking a program extension, and incorporate a new standard that makes it clear that acceptable reasons for requesting an extension of a stay for additional time to complete a program are: (1) Compelling academic reasons; (2) a documented illness or medical condition; and (3) exceptional circumstances beyond the control of the alien.
Next, DHS is proposing to clarify that a student can qualify for a program extension and corresponding extension of stay based on a medical reason, but it must be a documented illness or medical condition. To provide an objective standard, DHS proposes to codify standards already included in 8 CFR 214.2(f)(6)(iii)(B), which requires a student to provide medical documentation from a licensed medical doctor, doctor of osteopathy, or licensed clinical psychologist to substantiate the illness or medical condition if seeking a reduced course load.
DHS is also proposing a new factor in the extension of stay provisions—circumstances beyond the student's control, including a natural disaster, a national health crisis, or the closure of an institution.
Therefore, DHS is proposing a third prong that would encompass scenarios that are not envisioned in the current provisions governing the extension of a program end date, such as those noted above. Some of these examples are currently in the reinstatement provisions, 8 CFR 214.2(f)(16)(i)(F), and DHS believes that they merit favorable consideration in extension requests. However, the circumstances surrounding the closure of a school, if relevant, may be considered in determining whether the student qualifies for an extension of stay. For
The requirements to timely request an extension of the program end date would remain largely unchanged; however, DHS proposes a technical change to replace all references to the DSO “granting” an extension of the program with the term “recommend” an extension of the program in order for the student to file for EOS because USCIS, not the DSO, would “grant” the extension of stay.
If seeking an EOS to engage in any type of practical training, the alien in F-1 status would also need to have a valid Form I-20, properly endorsed for practical training, and be eligible to receive the specific type of practical training requested. Finally, as with all immigration benefit requests, an immigration officer would generally not grant an EOS where an alien in F-1 status failed to maintain his or her status.
Finally, a student's failure to timely request from the DSO a recommendation for extension of the program end date, which would result in the DSO recommending an extension of the program end date in SEVIS
With the transition from D/S to admission for a fixed time period, F-1 students would need to apply for an EOS directly with USCIS, by submitting the appropriate form and following the requirements outlined in the form instructions. USCIS anticipates accepting the Form I-539, Application to Change/Extend Nonimmigrant Status, for this population but would like the flexibility to use a new form if more efficient or responsive to workload needs. Thus, DHS is proposing to use general language to account for a possible change in form in the future. If the form ever changes, USCIS would provide stakeholder's advanced notice on its web page and comply with Paperwork Reduction Act requirements.
Like all other aliens who file a Form I-539, F-1 applicants would be required to submit biometrics and may be required to appear for an interview pursuant to 8 CFR 103.2(b)(9). In addition, applicants would need to demonstrate that they are eligible for the nonimmigrant classification sought. Accordingly, applicants must submit evidence of sufficient funds to cover expenses. A failure to provide such evidence would render the applicant ineligible for the extension of stay.
While the sponsoring school is required to verify the availability of financial support before issuing the Form I-20, they may not be well-versed in foreign documentation submitted by applicants and circumstances may change between issuance of a Form I-20 and a request for an extension of stay Further, it is incumbent upon DHS to determine the veracity of the evidence submitted, and officers must ensure that the student has sufficient funds to study in the United States without resorting to unauthorized employment. The phrase “sufficient funds to cover expenses” is referred to in Department of State regulations concerning issuance of F and M nonimmigrant student visas, 22 CFR 41.61(b)(1)(ii), and Department of State policy requires an applicant to provide documentary evidence that sufficient funds are, or will be, available to defray all expenses during the
F-1 applicants would need to timely file their EOS application—meaning that USCIS would need to receive the application on or before the date the authorized admission period expires.
The length of the extension granted could be up to the period of time needed to complete the program or requested practical training, not to exceed 4 years, unless the alien is a border commuter, enrolled in language training, attending a public high school, or the two-year limits on admission at paragraph (f)(20) apply in which case further restrictions apply, as described above. By permitting admission only “up to” the prescribed period, USCIS and CBP are afforded discretion as to the ultimate length of time to grant the applicant, and consider factors such as program length. Additionally, this proposal would replace the current provision at 8 CFR 214.2(f)(7)(iv), which references SEVIS and non-SEVIS schools and is outdated.
F-2 dependents seeking to accompany the F-1 principal student would need to file applications for an EOS or reinstatement, as applicable.
USCIS would need to receive the extension applications before the expiration of the previously authorized period of admission, including the 30-day period following the completion of the course of study, as indicated on the F-2 dependent's Form I-94. To qualify for an EOS, the F-2 dependent would need to demonstrate the qualifying relationship with the principal F-1 student who is maintaining status, also be maintaining his or her own status, and not have engaged in any unauthorized employment.
Under proposed 8 CFR 214.2(f)(7)(viii), if USCIS denies the request for an extension, and the period of admission for the student and his or her dependents has expired, then the student and his or her dependents would need to immediately depart the United States. As with other nonimmigrant categories, they would not be given any period of time to prepare for departure from the United States after the denial, and there may be significant immigration consequences for failing to depart the country immediately. For example, such aliens generally would begin to accrue unlawful presence the day after the issuance of the denial. DHS believes this standard provides parity across nonimmigrant categories and invites the public to submit comments on this issue as well as the proposed EOS application process.
As discussed above, a significant concern with the current D/S framework is that it has enabled “pay-to-stay” fraud in which school owners falsely report to DHS that a student is maintaining status in return for cash payments even though the student is not attending or is otherwise violating his or her status. In some cases, school owners have operated multiple schools and transferred students between these schools to conceal this fraud. For example, in 2018, a defendant was sentenced by a federal judge in the Central District of California to 15 months in prison and ordered to forfeit more than $450,000 for running such a scheme involving three schools that he owned.
In addition to proposing new restrictions for the number of programs an F-1 nonimmigrant can complete at the same or a lower educational level, DHS proposes to retain some of the current school transfer and change of educational level conditions. First, as is the case currently, aliens would need to begin classes at the transfer school or program within 5 months of transferring out of the current school or within 5 months of the program completion date on his or her current Form I-20; and second, if the alien is authorized to engage in post-completion OPT, he or she must be able to resume classes within 5 months of changing programs or transferring out of the school that recommended OPT or the date the OPT authorization ends, whichever is earlier.
Another indication of a violation of F-1 status is failing to pursue a full course of study at the school that the alien is authorized to attend.
Finally, DHS proposes some technical updates. First, the Department would strike outdated provisions in 8 CFR 214.2(f)(8)(ii) to account for the fact that all schools must now be SEVP-certified and to clarify that the transfer provision applies only to transfers from a SEVIS school to a SEVIS school.
Currently, 8 CFR 214.2(f)(10)(ii)(D) provides for “duration of status” to include periods students spend in the United States on post-completion OPT. As D/S admissions would be replaced with admission for a fixed time period throughout this rulemaking, DHS is proposing to clarify that an alien in F-1 status recommended for post-completion OPT must apply for employment authorization and an EOS, and may not engage in post-completion OPT unless such employment authorization is granted.
Like several other types of employment, a student would need to stop working if USCIS does not adjudicate the employment authorization application before the specific end date for the period of authorized stay is reached. While DHS recognizes the challenge presented by the transition from a D/S regime to a fixed time period, the proposition that employment must cease until the EAD grant or renewal is approved is not unique to this scenario. 8 CFR 274a.13(d) automatically extends EADs upon the filing of a renewal request for 180 days, after which the alien must cease employment if the renewal is still pending. This policy is thus consistent with the treatment of several other nonimmigrant categories and DHS does not believe it would cause significant disruption to F-1 students as most are not working prior to this application for post-completion OPT.
Where the application for EOS and post-completion OPT are granted, the alien would receive an additional 30-day period [from the program end date or EAD end date, as applicable to prepare for departure from or otherwise maintain status in the United States following the expiration of the status approved to complete post-completion OPT.
DHS proposes to remove references in paragraphs 8 CFR 214.2(f)(11)(i)(A) and (C) to the Form I-765 currently used by nonimmigrants to request employment authorization and replace them with language used throughout the proposed rule: “by filing the form designated by USCIS with the required fee and in accordance with form instructions.” The Department believes that such language gives USCIS the flexibility to change the form number or name without having to engage in a full rulemaking. In all cases, DHS would provide applicants with advanced notice of which form to use and the accompanying instructions. Additionally, DHS proposes technical changes in 8 CFR 214.2(f)(11), such as replacing the term `student' with `alien in F-1 status' and other edits reorganizing and rewording some paragraphs to improve readability.
The other change that DHS proposes regarding filing applications for OPT-based employment authorization is to provide more time for aliens to submit their applications. Currently, the following filing deadlines are in place:
• Pre-completion OPT: Aliens may file the application for employment authorization up to 90 days before being enrolled for one full academic year, provided that the employment will not begin prior to the completion of the full academic year. 8 CFR 214.2(f)(11)(i)(B)(
• Post-completion OPT: File the application for employment authorization up to 90 days before program end date and no later than 60 days after program end date. 8 CFR 214.2(f)(11)(i)(B)(
• STEM OPT: File the application for employment authorization up to 90 days before the expiration of current EAD and within 60 days of the DSO's recommendation. 8 CFR 214.2(f)(11)(i)(C).
DHS proposes to increase the number of days applicants have to file prior to the program end date from 90 days to 120 days and shorten the number of days students have to file an application for post-completion OPT after the program end date from 60 days to 30 days.
While USCIS anticipates timely processing these cases, there would be an increase in volume of EOS applications following the effective date of the final rule as those nonimmigrants who are required to file EOS begin to do so, and the Department believes that allowing applicants more time to file an EOS application would stagger the applications, helping to maintain a consistent volume. This, in turn, could enable USCIS to more efficiently manage this OPT-related workload, so the agency may be better equipped to adjudicate these requests in a timely manner and diminish the likelihood of gaps in employment. Additionally, DHS believes that shortening the filing window after the program end date would better align with the proposed period to prepare for departure. And, finally, DHS recommends technical changes such as replacing “shall” with “will” and clarifying edits throughout proposed 8 CFR 214.2(f)(11) for readability.
DHS proposes to strike and reserve 8 CFR 214.2(f)(13), which specifies how an F-1 student who has been granted employment authorization may apply for admission and resume employment, if readmitted to attend the same school which granted the employment authorization, when he or she returns to the U.S. from a temporary absence abroad.
DHS proposes to replace “nonimmigrant student” with “alien with F-1 status” consistent with proposed revisions throughout the NPRM, and to strike the sentence referencing how “duration of status” is inapplicable to border commuter students because DHS is proposing to eliminate duration of status for all F nonimmigrants.
Changes in technology and in the way that the public consumes media information have raised novel questions as to whether certain individuals fit within the statutory and regulatory provisions that are applicable to representatives of foreign information media. To address these questions, DHS proposes to define a foreign media organization as “an organization engaged in the regular gathering, production, or dissemination via print, radio, television, internet distribution, or other media, of journalistic information and has a home office in a foreign country.”
DOS is the entity that determines whether an alien qualifies for an I visa, while USCIS is the entity that determines whether an alien who is in the United States in another nonimmigrant status can change to I status or whether an I alien who is already in the United States and seeks to change his or her employer or information medium continues to qualify for an I status. USCIS and DOS guidance discuss the distinction between journalistic content and content that is primarily for entertainment. DOS considers journalistic information as “content that is primarily informational in nature, such as the reporting on recent or important events, investigative reporting, or producing educational materials, such as documentaries. It does not include content that is primarily designed to provide entertainment rather than information, including scripted or contrived situations, such as most “reality television” shows. It also does not include most personal content, such as discussions of personal experiences in the United States or materials aimed at fan engagement, or works produced for promotional or marketing purposes.”
Consistent with DOS guidance and current USCIS practice, whether content is journalistic information would depend on the nature of the content featured on the new media outlet. For example, a political blogger traveling to the United States to cover an election could qualify for I status, as election coverage would generally be considered journalistic information. In this example, the applicant would still need to demonstrate that he or she satisfies the other qualifications of an information media representative, including that he or she represents an organization involved in the regular gathering, production, or dissemination of journalistic information that has a home office in another country.
Similarly, a professional travel blogger traveling to the United States to obtain and produce materials on national parks in the United States could also qualify for I classification if all aspects of the definition of an information media representative are established, including the requirement that the media content generated will be journalistic information and that he or she represents an organization having an office in a foreign country and that is involved in the regular gathering, production, or dissemination of journalistic information. However, a blogger traveling to the United States to report on his or her own activities at a national park may not qualify for I status if the applicant does not represent an organization involved in the regular gathering, production, or dissemination of journalistic information and the media content is not primarily journalistic information. Individuals who are not professional bloggers, but maintain a personal blog and will produce content on their blog based on their personal experiences in the United States, such as providing information and reviews of their personal vacation, generally would not qualify for I classification, but may qualify for a B classification, depending on the circumstances. Likewise, a blogger promoting a line of products would not qualify for I status.
These standards facilitate the travel of representatives of foreign information
In order to be granted I classification, an alien would need to meet his or her burden of proof to establish eligibility for admission in that nonimmigrant category. DHS believes that evidence presented by such individuals to establish employment as a bona fide representative of foreign press, radio, film or other journalistic information media should be provided in a letter from the employing foreign media organization verifying the employment, the work to be performed, and the remuneration involved. This evidence would provide a standard basis for DHS to evaluate whether the applicant intends to comply with the I category and only engage in the regular gathering, production or dissemination via print, radio, television, internet distribution or other media of journalistic information and represents, as an employee or under contract, an organization with an office in a foreign country. For example, such a letter would be able to describe the content that the foreign information media representative is covering in the United States, which must be primarily journalistic information in nature
Where an alien is self-employed or freelancing, the alien must provide an attestation that verifies the employment, establishes that he or she is a representative of a qualifying foreign media organization that meets the foreign home office requirement, and describes the remuneration and work to be performed. In order to maintain the home office in another country, a self-employed applicant would need to demonstrate that he or she intends to depart the United States within a reasonable time frame consistent with the intended purpose of travel. Like the letter from the employing foreign media organization, the attestation from the alien would help to ensure that the individual is engaging in qualifying activities, not activities primarily intended for personal fan engagement, or promotional or marketing purposes, which are unrelated to the regular gathering, production, or dissemination of journalistic information.
DHS is proposing an admission period for I nonimmigrants of up to 240 days and another period of up to 240 days for an extension, based on the length of the activity.
Aliens applying for an EOS currently file a Form I-539 with USCIS, with required fee and in accordance with form instructions, but DHS is using general terms in the proposed regulatory text when referencing the EOS application. DHS is using general terms, rather than referencing form names and numbers, in the regulatory text to provide flexibility for the future—if the form name or number changes, the Department would not need to engage in rulemaking to make the update.
DHS proposes to retain the requirement that aliens in I status may not change the information medium or the employer they will be working with until they receive permission from USCIS.
Earlier this year, DHS published a final rule (85 FR 27645, May 11, 2020) amending the I nonimmigrant provision in 8 CFR 214.2(i). The rule amended the regulations to achieve greater reciprocity in the treatment of certain foreign nationals admitted to the United States in I nonimmigrant status as bona fide representatives of foreign information media who are foreign nationals travelling on a passport issued by the PRC, with the exception of Hong Kong Special Administrative Region (SAR) and Macau SAR passport holders. Under the rule, DHS has begun to admit aliens in I nonimmigrant status or otherwise grant I nonimmigrant status to aliens only for the period necessary to accomplish the authorized purpose of their stay in the United States, not to exceed 90 days. The rule also allows such visitors to apply for extensions of stay. Since the effective date of this rulemaking involving I nonimmigrants from the PRC, the National People's Congress of China announced in late
The proposed revisions to the J regulations at 8 CFR closely align with the proposed changes for F nonimmigrants. Under proposed 8 CFR 214.2(j)(1), J exchange visitors would be able to receive a period of admission not to exceed the program end date as stated on the Form DS-2019, up to a period of 4 years, unless otherwise limited to a shorter period under proposed section 8 CFR 214.2(j)(6). Currently, the permissible initial time periods for the J programs (as opposed to the periods of admission) are as follows, though further extensions are possible with DOS approval for all categories:
• Professors and research scholars: The length of program, not to exceed 5 years.
• Short-term scholars: The length of program, not to exceed 6 months.
• Trainees and interns: General trainees may be granted 18 months; trainees in the field of agriculture, hospitality and tourism may be granted 12 months, and interns may be granted 12 months.
• College and university students: The length of time necessary to complete the goals and objectives of the training.
• Student intern: Up to 12 months.
• Teachers: The length of time necessary to complete the program, not to exceed 3 years, unless a specific extension of 1 or 2 years is authorized by DOS.
• Secondary school students: Not more than two academic semesters (or quarter equivalency).
• Specialists: The length of time necessary to complete the program, not to exceed 1 year.
• Alien physicians: Limited to 7 years, unless the alien physician has demonstrated to the satisfaction of the Secretary of State that the country to which the alien physician will return at the end of additional specialty education or training has an exceptional need for an individual with such additional qualification.
• International visitors: The length of time necessary to complete the program, not to exceed 1 year.
• Government visitors: The length of time necessary to complete the program, not to exceed 18 months.
• Camp counselors: 4 months.
• Au pairs: Not more than 1 year.
• Summer work travel: Up to 4 months.
As with the F category, many J exchange visitors are admitted to participate in programs shorter than 4 years. Some J exchange visitors, like most F nonimmigrants, enter as post-secondary students. Similar to the F-1 Ph.D. student, some J nonimmigrants, like physicians, may need to stay longer than a 4-year period to complete their J program. However, many categories of J nonimmigrants would be covered by the same 4-year period proposed for F nonimmigrants. As such, it makes sense for DHS to treat these similarly situated nonimmigrants in a consistent manner by providing them with the same proposed, maximum admission period.
DHS proposes to retain the 30-day period that J nonimmigrants are provided before the report date or start of the approved program listed on the DS-2019 and the 30-day period at the end of the program. As DHS expects these nonimmigrants to use the 30-day period of time after the program ends to prepare for departure, the Department proposes to revise the language currently in 8 CFR 214.2(j)(1)(ii) that reads, “period of 30 days for the purposes of travel or for the period designated by the Commissioner. . .,” to instead read “a period of 30 days at the end of the program for the purposes of departure or to otherwise maintain status.”
Similar to the limitations proposed in 8 CFR 214.2(f)(20), the factors proposed in section (j)(6) focus on fraud and national security concerns. The factors DHS identified for limiting initial admission to a maximum of 2 years are:
• Certain countries. Like F nonimmigrants, exchange visitors who were born in or are citizens of countries listed in the State Sponsor of Terrorism List. DHS would publish a notice in the
• Countries with high overstay rates. Like F nonimmigrants, exchange visitors who are citizens of countries with a nonimmigrant student and exchange visitor total overstay rate greater than 10 percent according to the most recent DHS Entry/Exit Overstay report.
• U.S. national interest. DHS proposes to include a factor to limit the maximum period of admission to 2 years if it serves the U.S. national interest. As in the F program, this provision would provide the Secretary of Homeland Security and Secretary of State the requisite flexibility to identify potential risks of fraud and abuse to the United States' immigration programs and risks to national security that do not fit precisely within the other named categories. If the Department determines that certain technical fields pose a national security risk, more frequent vetting of the exchange visitors may serve in the national interest to mitigate the threats. If DHS determines that certain circumstances would be in the U.S. national interest to limit admission to a 2-year maximum period, then it would provide the public advance notice of such circumstance through publication of a
• E-Verify participation. While this proposed change would not impose a requirement that the program sponsor or host institution be enrolled in or be a participant in good standing in E-Verify, it would encourage those organizations that are not currently enrolled or in good standing to attain such status rather than potentially lose future exchange visitors. E-Verify participation helps to combat document fraud, identifies errors in certain Government records belonging to employees, and may be used by law enforcement agencies to aid in the prevention of identity theft.
Like the limiting factors for admission of F students, any one factor could trigger the designation of a maximum 2-year period of stay. And, like F students, J exchange visitors who depart the United States or for any reason would need to file an EOS application become subject to all terms and conditions of admission, including the 2-year limitation. This would include cases where an exchange visitor is admitted for a 4-year period, but in the midst of their 4-year admission, a new
The ultimate decision as to whether to admit the alien, and the maximum period of admission for such alien, would remain with the Secretary of Homeland Security, consistent with the Secretary's statutory obligation to administer and enforce the nation's immigration laws.
Consistent with the extension of stay eligibility requirements for the J-1 found at 8 CFR 214.1(c)(4), DHS proposes to codify the policy that extensions for spouses or children who are granted J-2 status based on their derivative relationship as a spouse or child of the principal J-1 nonimmigrant may not exceed the period of authorized admission of the principal J-1. The current regulations state that the initial admission of a spouse or child may not be for longer than the principal exchange visitor.
The shift from D/S to admission for a fixed time period would mean that J nonimmigrants wishing to remain in the United States beyond their authorized period of stay would need to file an EOS application with USCIS. Like other nonimmigrants applying for EOS, they would currently need to file a Form I-539 in accordance with that form's instructions, with the required fee, and including any biometrics or interview as required by 8 CFR 103.16.
Dependent J-2 spouses and children seeking to accompany the J-1 exchange visitor during the additional period of admission would either need to be included on the primary applicant's request for extension or file their own EOS applications on the form designated by USCIS, and may be required to provide biometrics consistent with 8 CFR 103.16.
Like I nonimmigrants, J-1 exchange visitors are authorized to engage in employment incident to status.
If the alien's initial date of admission passes, DHS proposes to consider the alien's Form I-94 unexpired when combined with a USCIS receipt notice indicating receipt of a timely filed EOS application and a valid, properly endorsed Form DS-2019 indicating his or her program's end date. An EOS application would be considered timely filed if the receipt notice for the application of EOS is on or before the date the authorized stay expires. The extension of an alien's authorized employment would terminate on the date of denial of an individual's application for an EOS.
Unlike J-1 exchange visitors, J-2 spouses and minor children may only engage in employment with authorization by USCIS.
If a J-2 dependent nonimmigrant's requested period of employment authorization exceeds his or her current admission period, the J-2 dependent would need to file an EOS application, in addition to a new application for employment authorization, in the manner designated by USCIS, with the required fee and in accordance with form instructions.
As noted above in the discussion concerning EOS applications for F nonimmigrants, DHS considered but declined to adopt a policy that would result in abandonment of the EOS application upon traveling outside the United States while the EOS is pending. A J-1 or J-2 alien who travels during the time the EOS is pending will not be considered to have abandoned the EOS application.
Finally, DHS proposes minor technical updates. First, DHS proposes to update outdated terms such as “Commissioner” and “Service” in 8 CFR 214.2(j)(1)(vi), replacing them with USCIS. Second, in 8 CFR 214.2(j)(1)(vi) DHS proposes to strike the reference to duration of status and replace it with
DHS is proposing to add two provisions to 8 CFR part 248, which governs changes of status. First, DHS is proposing to clarify that aliens who were granted a change to F or J status before the effective date of the final rule, and are applying for admission as an F or J after the final rule's effective date may be admitted up to the program end date as noted on the Form I-20 or DS-2019 that accompanied the change of status application that was approved prior to the alien's departure, not to exceed 4 years, unless they are subject to a 2-year admission proposed in 8 CFR 214.2(f)(20) or (j)(6), plus a period of 30 days following their program end date, to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States.
Second, DHS is proposing to codify long-standing policy that, when an alien timely files an application to change to another nonimmigrant status, including F or J status, but departs the United States while the application is pending, USCIS will consider the application abandoned.
Additionally, DHS proposes minor technical edits: Replacing the words “A district director” in newly re-designated paragraph (g) with “USCIS”; replacing “shall” in newly re-designated paragraph (g) with “will”; and replacing all instances of “shall” with “will” in newly re-designated paragraph (h).
DHS is proposing the following updates to regulations pertaining to employment authorization: First, as discussed above, DHS proposes to change 8 CFR 274a.12(b)(6)(i) to conform with proposed revisions in 8 CFR 214.2(f)(9)(i), which as discussed above, would terminate on-campus employment as of the alien's fixed date of admission as noted on his or her Form I-94. If the alien has timely applied for an extension of stay, however, pursuant to proposed 8 CFR 214.2(f)(5)(vii), the current on-campus and severe economic hardship employment authorization of such an alien may be automatically extended for up to 180 days, or until adjudicated by USCIS, whichever is earlier, as described in that section.
Second, as discussed above, DHS proposes to clarify that CPT terminates on the alien's fixed date of admission as noted on their Form I-94. An F-1 alien whose fixed date of admission noted on their Form I-94 has expired may not engage in CPT until USCIS approves an alien's EOS request.
Third, as discussed above, DHS proposes to strike the reference to D/S in 8 CFR 274a.12(b)(6)(v) and update the language to be consistent with proposed cap-gap provisions at 8 CFR 214.2(f)(5)(vi).
Fourth, as discussed above, in proposed 8 CFR 274a.12(b)(10), DHS proposes to cross-reference proposed language in 8 CFR 214.2(i) for I nonimmigrants, which clarifies that limitations currently in the provision (an alien in this status may be employed only for the sponsoring foreign news agency or bureau) allow for freelance and self-employment situations where the I nonimmigrant may not have a “sponsoring” foreign news agency or bureau, and instead would need to show, among other requirements indicated in proposed 8 CFR 214.2(i), that they are working for a qualifying foreign media organization.
DHS developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. The below sections summarize our analyses based on a number of these statutes or executive orders.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules and promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
This rule has been designated a “significant regulatory action” that is economically significant, under section 3(f)(1) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
Currently, aliens in the F (academic student), J (exchange visitor), and I
The period of analysis for the rule covers 10 years and assumes the proposed rule would go into effect in 2020. Therefore, the analysis period goes from 2020 through 2029. This analysis estimates the annualized value of future costs using two discount rates: 3 percent and 7 percent. In Circular A-4, OMB recommends that a 3 percent discount rate be used when a regulation affects private consumption, and a 7 percent discount rate be used in evaluating a regulation that will mainly displace or alter the use of capital in the private sector. The discount rate accounts for how costs that occur sooner are more valuable. As shown in Table 1, the NPRM would have an annualized cost ranging from $229.9 million to $237.8 million (with 3 and 7 percent discount rates, respectively).
Unlike aliens in most nonimmigrant categories who are admitted until a specific departure date, F, J, and I nonimmigrants are admitted into the United States for a period of time necessary to engage in activities authorized under their respective [visa] classifications. This period of time is referred to as “duration of status” (D/S) and, under the D/S framework, nonimmigrants do not receive a fixed period of admission. Since the introduction of D/S, the number of F, J, and I nonimmigrants admitted into the United States has significantly increased. Admission for D/S, in general, does not give immigration officers enough opportunities to directly verify that aliens granted such nonimmigrant status are engaging only in those activities authorized by their respective classifications while they are in the United States. In turn, this has undermined DHS's ability to effectively enforce the statutory inadmissibility grounds related to unlawful presence and has created incentives for fraud and abuse.
Additionally, the D/S framework creates opportunities for foreign adversaries to exploit these programs and undermine U.S. national security, in part due to the reduced opportunities for direct vetting of foreign academic students by immigration officers. An open education environment in the United States offers enormous benefits, but it also places research universities and the nation at risk for economic, academic, or military espionage by foreign students and exchange visitors. DHS believes that replacing admissions for D/S for F-1 students and J-1 exchange visitors with admission for a fixed time period would help mitigate these national security risks, by ensuring an immigration official directly and periodically vets their applications for extension of stay and, in doing so, confirm they are engaged only in activities consistent with their student or exchange visitor status. Under the proposed changes, DHS would more frequently collect biometrics and other information, enhancing the Government's oversight and monitoring of these aliens.
To address these concerns, the proposed rule would replace the D/S framework for F, J, and I nonimmigrants with a framework that authorizes an admission period with a specific date upon which an authorized stay ends. Nonimmigrants who would like to stay in the United States beyond their fixed date of admission would need to apply directly with DHS for an extension of stay. As the admission for a fixed time period of authorized stay is already in place for most other nonimmigrant categories, this change brings F, J and I nonimmigrants in line with most other classifications. Providing F, J and I nonimmigrants a fixed time period of authorized stay would require them to apply to extend their stay, change their nonimmigrant status, or otherwise seek to obtain authorization to remain in the United States (
The proposed rule would ensure an effective mechanism for the Department to periodically and directly assess whether these nonimmigrants are complying with the conditions of their classifications and U.S. immigration laws, as well as to obtain timely and accurate information about the activities they have engaged in and plan to engage in during their temporary stay in the United States. In addition, as F, J, and I nonimmigrants would be admitted for a fixed period of admission under the proposed rule, they would generally begin to accrue unlawful presence following the expiration of their authorized period of admission, as noted on the Form I-94, and could potentially become inadmissible based on that accrual of unlawful presence under section 212(a)(9)(B) and (C), 8 U.S.C. 1182(a)(9)(B) and (C), upon departing the United States. Those grounds of inadmissibility have important and far-reaching implications on an alien's future eligibility for a nonimmigrant visa, admission to the United States, an immigrant visa, or adjustment of status to that of a lawful permanent resident, and therefore may deter F, J, and I nonimmigrants from failing to maintain status or engaging in fraud and abuse and strengthen the integrity of these nonimmigrant. classifications.
The proposed rule would primarily affect F, J, and I nonimmigrants and their dependents by requiring some nonimmigrants in these categories to file an EOS application to extend their stay beyond their fixed period of admission. F nonimmigrants are individuals enrolled as bona fide students at SEVP-certified schools, J nonimmigrants are individuals participating in work and study-based exchange visitor programs, and I nonimmigrants are foreign information media representatives. In the sections below, DHS describes the data and methods used to (1) estimate the annual population size for each analyzed visa classification, (2) characterize these annual populations with respect to the need to file an EOS request, and (3) develop projections for the annual number of EOS requests for the evaluation period from 2020 to 2029. These analytical steps have been implemented using the R Project for Statistical Computing, an open-source
To identify potentially affected nonimmigrants, DHS used data from several agencies. Data for F and J nonimmigrants were extracted from the Student and Exchange Visitor Information System (SEVIS), including data on student participation in OPT, and J exchange visitor program sponsors. The Student and Exchange Visitor Program (SEVP) oversees schools certified to enroll F and M nonimmigrant students and their dependents. The Department of State (DOS) manages Exchange Visitor Programs for nonimmigrant exchange visitors in the J classification, and their dependents. Both SEVP and DOS use SEVIS to track and monitor schools; exchange visitor programs; and F, M, and J nonimmigrants while they are temporarily in the United States.
Data on I nonimmigrants were extracted from the CBP Arrival and Departure Information System (ADIS). ADIS consolidates entry, exit, and admission status information from DHS components, DOS, and the Canada Border Services Agency. ADIS contains biographic information, biometric indicators, and encounter data.
DHS used nonimmigrant student and exchange visitor program sponsor data from SEVIS and ADIS for fiscal year (FY) 2016, FY 2017, and FY 2018 to estimate the potentially affected population. For each year of data, DHS estimated the total number of nonimmigrants in each category and the total number of individuals who would have to file an EOS in that year if the rule were in effect. Next, DHS used an average of these 3 years as a best estimate of the affected population.
To estimate the total population of nonimmigrants in each year of the analysis, DHS took steps to remove incomplete and incorrect data entries from the SEVIS and ADIS data. For F and J nonimmigrants, DHS first eliminated records that were missing data critical to the analysis such as data entries without start and end dates for the individual's current program or entries that had a program start date that occurred after the program end date as this indicates that the start and end dates were entered improperly. In each fiscal year of data, this resulted in elimination of approximately 4 percent of unique SEVIS entries for F nonimmigrants but no appreciable data loss for J nonimmigrants. In order to only select individuals who were enrolled during the year of analysis, DHS selected entries that had a program end date that occurred on or after the beginning of the year of analysis,
Table 2 shows the estimated total number of F, J, and I nonimmigrants for each fiscal year from 2016 to 2018, as well as the 3-year average. The F estimates include F-1 and F-2 nonimmigrants, J estimates include J-1 and J-2 nonimmigrants, and I estimates include both principal I and dependent I nonimmigrants as there are no multiple categories of I visas. Over the 3-year period, there were approximately 1.7 million F nonimmigrants, 607,000 J nonimmigrants, and 35,000 I nonimmigrants active per year. Overall, approximately 2.3 million persons participated annually in the F, J, and I nonimmigrant programs combined.
Each year, only a subset of the total nonimmigrant F, J, and I population would be affected by the proposed rule provisions. DHS applied the criteria contained within the proposed rule to estimate the subset of nonimmigrants that would be required to extend their authorized period of admission in each year of the analysis in order to continue the duration of studies observed in the fiscal year 2016-2018 SEVIS data. These criteria vary across the nonimmigrant categories.
F-1 nonimmigrants are bona fide students who seek to enter the United States temporarily and solely for the purpose of pursuing a full course of study at an academic or language training school certified by SEVP. F-2 nonimmigrants are their dependents. F nonimmigrants include, but are not limited to, individuals enrolled in language training, bachelor's degrees, and those engaged in OPT.
This rule proposes a fixed period of admission of up to 2 or 4 years for F nonimmigrants, depending on whether a nonimmigrant presents heightened concerns related to fraud, abuse, and national security. The proposed rule
• Program Length. The nonimmigrant's program length exceeds 4 years;
• Certain Countries. The nonimmigrant was born in or is a citizen of a country on the State Sponsors of Terrorism list, or is a citizen of a country with a student and exchange visitor total overstay rate greater than 10 percent according to the most recent DHS Entry/Exit Overstay report;
• Other Factors of U.S. National Interest. The nonimmigrant is subject to other factors determined to be in the U.S. national interest, which may include but not be limited to circumstances where there may be national security concerns or risks of fraud and abuse. These factors may be incorporated into a
• Accreditation. The nonimmigrant is enrolled at a post-secondary school that is not accredited by an accrediting body recognized by the Secretary of Education;
• Extended Period of Admission. The nonimmigrant makes a change to his or her program that affects the program end date and requires an extension of stay, such as a change from OPT to a STEM OPT extension or a change in educational level; and
• E-Verify Enrollment. The nonimmigrant's school is not enrolled in E-Verify or is not a participant in good standing in E-Verify as determined by USCIS.
In this analysis, DHS does not present the number of individuals meeting each limitation criterion, as some individuals may meet multiple criteria. The affected population estimates reflect the overall effect of all of the NPRM's limitations, rather than the marginal effects of each limitation. To estimate EOS requests, DHS analyzed nonimmigrant data to identify individuals who would be subject to the limitation criteria in the year of analysis using the following steps:
1. Program Length. This analysis assumes that individuals would require an EOS in the year of analysis if they had a program duration longer than 4 years, were not in the final year of their program, and were in a year of their program that was a multiple of four (
2. Certain Countries. The rule proposes to limit the fixed time period of admission of up to 2 years for F nonimmigrants who were born in or are citizens of countries listed on the State Sponsors of Terrorism List or who are citizens of countries with a student and exchange visitor total overstay rate greater than 10 percent according to the most recent DHS Entry/Exit Overstay report.
3. Other Factors of U.S. National Interest. Although the proposed rule does not explicitly list other factors that may serve the U.S. national interest, the analysis uses enrollment in the nuclear physics or nuclear engineering courses as examples of courses that could pose a risk to U.S. national security to estimate the potential impacts of this proposed requirement. The analysis assumes that nonimmigrants would require an EOS in the year of analysis if they were enrolled in these courses of study, not in the last year of their program, in a year of their program that was a multiple of two (
4. Accreditation. Similarly, the analysis assumes that nonimmigrants would require an EOS if they were enrolled at a post-secondary school not accredited by an accrediting body recognized by ED, not in the last year of their program, in a year of their program that was a multiple of two (
5. Extended Period of Admission. DHS identified nonimmigrants within each fiscal year who needed to change their authorized period of admission in the year of analysis. Individuals switching from an OPT program to a Science, Technology, Engineering, or Math (STEM) OPT extension program, individuals requesting additional time to complete their program of study, and individuals changing from one educational level to another, among others, were included. Individuals changing majors, transferring schools, enrolling in pre-completion OPT, or making other changes to their course of study that would not affect their program end date were not considered to require an EOS in the year of analysis if they did not meet any other limiting criteria that would require them to extend.
6. E-Verify Enrollment. To estimate the number of students affected by this proposed provision, DHS needed to identify nonimmigrants that were enrolled at a post-secondary school not enrolled in E-Verify or not a participant in good standing in E-Verify, not in the last year of their program, in a year of their program that was a multiple of two
DHS calculated the total number of expected EOS requests from these criteria for FY 2016, FY 2017, and FY 2018, and used these yearly estimates to calculate the annual average number of EOS requests for both F-1 and F-2 nonimmigrants.
J-1 exchange visitor participants are individuals approved to participate in work and study-based exchange visitor programs, and J-2 nonimmigrants are their dependents. For example, J exchange visitor participants include individuals enrolled in alien physician programs, camp counselors, and au pairs, among others.
The proposed rule would impose a fixed period of admission of up to 2 or 4 years on J nonimmigrants, depending on limitations on the length of admission. In order to identify the potentially affected J nonimmigrants, DHS estimated the number of individuals in FY 2016, FY 2017, and FY 2018 meeting the following limitation criteria which would require an EOS under the NPRM:
• Program Length. The nonimmigrant's program length exceeds 4 years;
• Certain Countries. The nonimmigrant was born in or is a citizen of a country on the State Sponsors of Terrorism list or is a citizen of a country with a greater than 10 percent total overstay rate for students and exchange visitors according to the most recent DHS Entry/Exit Overstay report;
• Other Factors of U.S. National Interest. The nonimmigrant is subject to other factors determined to be in the U.S. national interest, which may include but not be limited to circumstances where there may be national security concerns or risks of fraud and abuse. These factors may be incorporated into an FRN to limit a student's period of stay to a 2-year maximum;
• E-Verify Enrollment. The nonimmigrant's program sponsor is either not enrolled in E-Verify or, if enrolled, is not a participant in good standing in E-Verify as determined by USCIS.
In this analysis, DHS does not present the number of individuals meeting each limitation criterion, as some individuals may meet multiple criteria. The affected population estimates reflect the overall effect of all of the NPRM's limitations, rather than the marginal effects of each limitation. To estimate EOS requests, DHS analyzed nonimmigrant data to identify who would be subject to the limitation criteria in the year of analysis. DHS took the following steps to identify individuals who would be subject to these criteria in the year of analysis:
1. Program Length. For J nonimmigrants, DHS used the same
2. Certain Countries. For J nonimmigrants, DHS used the same approach described for F nonimmigrants to estimate individuals needing to file an EOS due to meeting 2-year limitation criteria for their country of citizenship or country of birth;
3. Other Factors of U.S. National Interest. For J nonimmigrants, DHS applied the same approach described for F nonimmigrants, using participation in the field of nuclear physics or nuclear engineering as examples of programs that could pose a risk to U.S. national security, to estimate individuals needing to file an EOS due to meeting 2-year limitation criteria for factors that serve the U.S. national interest;
4. E-Verify Enrollment. DHS determined that any individual not employed by an employer enrolled in E-Verify
DHS calculated the total number of expected EOS requests from these criteria for FY 2016, FY 2017, and FY 2018, and used these yearly estimates to calculate the annual average number of EOS requests for both J-1 and J-2 nonimmigrants.
I nonimmigrants are bona fide representatives of foreign information media (such as press, radio, film, print) seeking to enter the United States to engage in such vocation, as well as the spouses and children of such aliens.
DHS proposes to give I nonimmigrants an admission period of up to 240 days, after which an EOS may be available for those who can meet EOS requirements. In order to estimate the number of EOS requests that would likely be filed by I nonimmigrants, DHS calculated the number of individuals in I status in FY 2016, FY 2017, and FY 2018 staying for greater than 240 days.
These estimates do not include I nonimmigrants with an initial admission period shorter than 240 days because they departed the United States before their total in-country time during the initial admission exceeds 240 days. After a very short departure from the United States, these same individuals could have returned to the United States, and their cumulative total period of stay for both admissions could have been longer than 240 days. Therefore, more than 1,200 I nonimmigrants may request an EOS per year, as this number does not capture the number of I nonimmigrants requesting additional time, only those with a period of stay longer than 240 days. DHS seeks public comment on ways to improve the estimate of the affected I nonimmigrant population.
Proposed 8 CFR 214.1(m)(1) would establish a transition period for phasing in admissions for a fixed time period. Specifically, F and J nonimmigrants present in the United States on the final rule's effective date who are in D/S may remain in the United States in F or J status, without filing an EOS request and would be provided an authorized period of admission up to the program end date reflected on their Form I-20 or DS-2019 that is valid on the Final Rule's effective date, not to exceed 4 years from the effective date of the Final Rule, as long as they do not depart the United States.
To align with the proposed transition period, DHS adjusted the annual EOS estimates for F and J nonimmigrants over the 10-year period of analysis. The transition period for the I nonimmigrants did not require adjustments to the EOS estimates over the 10-year period of analysis as I nonimmigrants would not receive a period of admission over 240 days [going forward]. DHS anticipates that the rule would become effective in 2020 and estimated the number of EOS requests in each year from 2020 through 2029 (the 10-year period of analysis).
F and J nonimmigrants would not automatically be required to file an EOS request when the rule goes into effect. Rather, F and J nonimmigrants would be required to request an additional period of admission by filing an EOS if they meet the criteria associated with the period of admission limitations discussed above or the transition period requirements or alternatively they could depart the United States and apply for readmission with CBP under the new rule. In order to estimate the number of EOS requests in each year, DHS segmented the period of analysis into three distinct phases: (1) The early transition period, (2) the end of transition period, and (3) the full implementation period. Figure 1 describes the F and J nonimmigrants affected in each of these phases.
In the early transition period, DHS assumes that, from 2020-2021, only F and J nonimmigrants extending their program end date beyond the program end date noted on their Form I-20 or DS-2019 would be filing an EOS because no other period of stay limitation would be triggered within the first 2 years of the transition period. Using FY 2016, FY 2017, and FY 2018 data, DHS estimates that approximately 203,000 EOS requests would be filed annually in 2020 and 2021.
Beginning in 2022, DHS assumes that individuals subject to a 2-year limitation on the period of admission who were admitted after the effective date of the rule would begin filing EOS requests. Therefore, in 2022 and 2023, there would be two types of EOS requests filed: Those from individuals requesting an EOS due to a 2-year period of admission, and those from individuals requesting extensions to continue their same program or degree. Using FY 2016, FY 2017, and FY 2018 data, DHS estimates that approximately 259,000 EOS requests will be filed annually in the years 2022-2023.
DHS anticipates that there would not be any nonimmigrants currently in the country in F, J, or I status at the time that the rule becomes effective who would receive a fixed period of admission that extends past 2024 because the transition period has a 4-
After the end of the transition period, DHS assumes that all F, J and I nonimmigrants would have a fixed date of admission. During this time, all nonimmigrants needing to file an EOS for any reason would need to request an additional period of admission from DHS, either by filing an EOS with USCIS or by applying for admission with CBP.
DHS estimates that between 2025-2029 approximately 301,000 EOS applications would be filed with USCIS annually. Table 6 provides the estimated number of EOS requests per year from each nonimmigrant category for the full 10-year period of analysis, showing the fluctuations across the early transition period, the end of the transition period, and the full implementation period.
DHS proposes to admit nonimmigrants seeking entry under the F, J, and I nonimmigrant categories for the period required to complete their academic program, foreign information media employment, or exchange visitor program. For F and J nonimmigrants, the period of admission would not exceed 4 years, or 2 years for F and J nonimmigrants meeting certain factors. For I nonimmigrants, the period of admission would not exceed 240 days. As these nonimmigrants would have a fixed time period of admission, this proposal includes provisions that would require nonimmigrants to apply for an EOS directly with USCIS or apply for admission with CBP and receive an admit until date on their Form I-94 if seeking to continue their studies, to participate in any type of post completion training related to their academic course of study, to continue working in their information medium, or to participate in an exchange visitor program beyond the initial admission period granted at entry.
DHS assessed the costs and benefits of the proposed rule relative to the existing baseline, that is, the current practice of admitting F, J, and I nonimmigrants for D/S, as well as monitoring and overseeing these categories of nonimmigrants. As summarized in RIA Section VI.A.1 Table 1, some impacts of the proposed requirements are discussed throughout this section qualitatively. In accordance with the regulatory analysis guidance articulated in OMB Circular A-4 and consistent with DHS's practices in previous rulemakings, this regulatory analysis focuses on the likely consequences of the proposed rule (
The proposed rule would impact DSOs and ROs from SEVP-certified schools and exchange visitor programs that run a SEVP or DOS approved program by requiring time for rule familiarization training, modification of training materials, and institutional awareness and response (during the first year only). I foreign information media representatives would not incur similar costs from the proposed rule as those incurred by DSOs and ROs because the burden for filing an EOS request falls on the I nonimmigrant, who, DHS assumes that in the baseline familiarize themselves with the pertinent visa requirements at the time the visa is needed, not at the point in time that Federal regulations change. DHS expects this behavior would not change as a result of the rule and, as a result, there would be no incremental costs associated with rule familiarization and adaptation for I foreign information media representatives.
Based on best professional judgment, SEVP estimates that DSOs and ROs would require 8 hours to complete rule familiarization training, 16 hours to create and modify training materials, and 16 hours to adapt to the proposed rule through system wide briefings and systemic changes. DHS welcomes public comments on these estimates. To estimate these costs, DHS multiplied the total time requirement (40 hours) by the loaded wage rate for DSOs and ROs ($28.93 wage rate * a 1.46 loaded wage rate factor
Under the proposed rule, nonimmigrants who would like to extend their stay beyond their fixed period of admission would need to apply for additional time directly with DHS. Under the proposed framework, nonimmigrants could choose to file an EOS using the appropriate form from USCIS or apply for admission with CBP at a POE. DHS assumes nonimmigrants with existing international travel plans would prefer to request extensions with CBP at a POE rather than incurring the costs of filing an EOS. Because DHS is unable to estimate how many nonimmigrants would prefer to extend with CBP, DHS' best assessment of the cost of the proposed rule to the affected population is based on the assumption that each extension will require a Form I-539 filing. Actual costs to the affected population could be lower for those nonimmigrants able to extend while traveling through a POE.
During the transition, F and J nonimmigrants who are properly maintaining their status, are present in the United States when the rule takes effect, and were admitted for D/S would be authorized to remain in the United States for a period of time up to the program end date noted on their Form I-20 or DS-2019, plus 30 days, not to exceed a period of 4 years. I nonimmigrants who are properly maintaining their status and are present in the United States when the rule takes effect would have their status, and employment authorization incident to such status, automatically extended for a period necessary to complete their activity, not to exceed 240 days after the rule takes effect. Any F academic students, J exchange visitors, and I representatives of foreign information media who are present when the rule takes effect would need to apply for an EOS if they require additional time required beyond the maximum specified transition time period.
EOS applicants would need to file Form I-539 (F-1, J-1, and I nonimmigrants) or Form I-539A (F-2, J-2 nonimmigrants, and I dependents), depending on the nonimmigrant category, in order to extend their period of stay. DHS assumes that all F-2 nonimmigrants, J-2 nonimmigrants, and I dependents would complete the I-539A instead of completing a separate Form I-539 because the I-539A is less burdensome to complete and does not require a separate application fee.
The most recently approved Paperwork Reduction Act (PRA) Information Collection Package Supporting Statement for Form I-539 at the time of this analysis, which provides the average applicant burden estimates for completing and submitting the form, states that F-1, J-1, and I nonimmigrants require 2.0 hours to complete a paper version of the Form I-539 (70 percent of applicants) or 1.08 hours to complete an electronic version (30 percent of applicants), and F-2 and J-2 nonimmigrants require 0.5 hours to complete the I-539A form.
In addition to completing the Form I-539/I-539A, all F, J, and I applicants would be required submit biometrics. The submission of biometrics requires travel to an application support center (ASC) for the biometric services appointment,
F, J, and I nonimmigrants would pay fees to USCIS to file the Form I-539 and complete biometric processing, as described in the Supporting Statement for Form I-539. F-1, J-1, and I nonimmigrants would pay a $370 fee when submitting the Form I-539 (F-2 and J-2 nonimmigrants would not be required to pay a fee when submitting
Table 7 provides the unit cost and references for the costs for completing and submitting the Form I-539/I-539A and biometrics for each nonimmigrant category.
DHS multiplied the expected number of EOS requests for F, J, and I nonimmigrants (Table 6) by the appropriate applicant unit costs (Table 7) to estimate EOS filing costs. As shown in Table 7, DHS assumed that 45.5 percent of F-1, J-1, and I nonimmigrants would incur burden costs for paper applications without outside help, 19.5 percent would incur burden costs for electronic applications without outside help, 24.5 percent would incur burden costs for paper applications with outside help, and 10.5 percent would incur burden costs for electronic applications with outside help. Burden costs for F-2 and J-2 nonimmigrants remain constant because their labor burden does not vary depending on paper versus electronic filing, and DHS assumes that F-2 and J-2 nonimmigrants would not pay for outside assistance with the I-539A form.
Table 8 presents undiscounted EOS filing costs by nonimmigrant category and year, along with a breakdown of costs based on filing type (paper or electronic) and the need for outside help to complete the form. EOS filing costs are lowest during the early transition period (2020-2023) and highest at the end of the transition period (2024) because of the variation in the estimated number of EOS requests (Table 6).
The total estimated cost for EOS filing in 2018 dollars would be $1.8 billion undiscounted,
SEVIS is a web-based system that DHS and DOS use to maintain information regarding: SEVP-certified schools; F-1 and M-1 students studying in the United States (and their F-2 and M-2 dependents); DOS-designated Exchange Visitor Program sponsors; and J-1 Exchange Visitor Program participants (and their J-2 dependents). Under the proposed rule, DSOs and ROs would need to process program extension requests, update SEVIS entries, and provide counseling for any students requesting a program extension. Based on best professional judgment, SEVP estimates that DSOs/ROs would require 3 hours per EOS request for reviewing the program extension requests by the student (1 hour), updating the SEVIS record and tracking program extension requests (1 hour), and advising the student or exchange visitor about the extension process and the requirements to file an EOS with USCIS (1 hour).
To estimate DSO/RO costs for processing program extension requests and updating SEVIS, DHS multiplied the estimated number of EOS requests for F-1 and J-1 nonimmigrants (Table 6) by the expected DSO/RO time requirement per EOS request (3 hours) and the DSO/RO loaded wage rate ($28.93 × 1.46 loaded wage rate factor). DHS assumed that, on average, the 3-hour time estimate accounted for time required to update SEVIS entries for F-2 and J-2 dependents. The per-program extension DSO/RO costs would be $126.72 (3 hours × $28.93 × 1.46 loaded wage rate factor).
Table 9 presents undiscounted DSO/RO costs for processing program extension requests and updating SEVIS throughout the 2020-2029 study period. Similar to EOS filing costs, DSO/RO costs for processing program extension requests and updating SEVIS are lowest during the early transition period (2020-2023) and highest at the end of the transition period (2024) because of the variation in the estimated number of EOS requests (Table 6).
The total cost estimate for DSO/RO program extension requests processing and SEVIS updates would be $308.7 million undiscounted,
DHS acknowledges that there may be additional costs to the government to upgrade SEVIS and provide additional support services to implement the proposed rule. DHS anticipates there may be costs for SEVIS development, supplemental Federal staff to assist in the development, increased call center volume, and operation and maintenance of SEVIS databases and other DHS IT systems. The costs for the SEVIS upgrade and support services would depend on the timeline for completion of the initial upgrade. DHS preliminary estimates show that under a 6-month timeline for upgrades, the costs in FY 2020 would be $22.5 million. This estimate includes costs for 55 additional Federal employees to handle the SEVIS development, additional call center volume, and operation and maintenance. Of the 55 additional positions, 23 of the positions would be temporary one-year positions to develop SEVIS and 32 of the positions would be permanent positions to handle the ongoing operation and maintenance and the additional call center volume. In FY 2021- FY 2029, there would be an annual cost of $16 million for the 32 additional Federal employees to handle the ongoing operation and maintenance of SEVIS databases and other DHS IT systems and to account for the additional call center volume.
The timeline for completion would impact the total SEVIS upgrade cost estimate. If DHS lengthens the timeline for implementing the provisions of this rule, DHS may be able to use existing resources to complete the necessary upgrades.
In addition to the changes due to this proposed rule, DHS is updating SEVIS due to other SEVP programmatic goals. The cost estimates of $22.5 million in FY 2020 and $16 million in FY 2021- FY 2029 include costs that are necessary to implement the provisions of this proposed rule but may have been implemented without this proposed rule. Therefore, these costs are not accounted for in the total cost of this proposed rule.
For a subset of EOS request cases, USCIS may request additional information or conduct an in-person interview if the applicant has raised concerns of a risk to national security or public safety, possible criminal activity, or status violation. These requests would result in costs for both USCIS and the nonimmigrant EOS applicant. The additional burden on USCIS would depend on the time required to obtain and review the additional information or conduct the in-person interview. DHS anticipates that the additional burden on applicants, on average, would be equivalent to the added expense of seeking third party assistance for completing the Form I-539, or $490. Because the percentage of nonimmigrants that USCIS would ask to provide additional information or participate in an in-person interview is uncertain, this analysis does not quantify the costs of such requests on either nonimmigrants or USCIS.
While the intent of the proposed rule is to enhance national security, the elimination of duration of status has the potential to reduce the nonimmigrant student enrollment and exchange visitor participation. This regulatory impact
The proposed rule may adversely affect U.S. competitiveness in the international market for nonimmigrant student enrollment and exchange visitor participation. Specifically, the proposed changes could decrease nonimmigrant student enrollments in the United States with corresponding increased enrollments in other English-speaking countries, notably in Canada, Australia, and the United Kingdom. Student visas and resulting nonimmigrant status in other English-speaking countries are typically valid for the duration of the student's course enrollment, so students are not generally required to file an EOS application. For example, Australia's most common student visa (Subclass 500) provides for an admission for a length of stay that corresponds to the student's enrollment, which may be more than 4 years.
Nonimmigrant student enrollment and exchange visitor participation contributes to the U.S. economy. The Institute of International Education estimates that during the 2018 academic year, international students alone had an economic impact of $44.7 billion from tuition and fees, food, clothing, travel, textbooks, and other spending.
For other J exchange visitors, such as government visitors and alien physicians, DHS does not believe there would be a significant impact in participation. Alternatives to U.S.-based exchange visitor programs (outside of academia) may be more difficult to find in other countries, providing less of an incentive for nonimmigrants to choose an alternative. S.
Similar to J exchange visitors not affiliated with SEVP-certified schools, DHS does not believe the proposed rule would have a significant impact on I nonimmigrants. Using ADIS data from 2016-2018, DHS found that on average, 97 percent of I nonimmigrants have a period of stay shorter than 240 days, and there are fewer proposed changes to the I category relative to other nonimmigrants, such as F nonimmigrants. Therefore, DHS does not expect a reduction in admissions of I nonimmigrants.
DHS appreciates the importance of nonimmigrant student enrollment and exchange visitor participation to the U.S. culture and economy, but acknowledges the potential for the proposed rule to affect future nonimmigrant student enrollment and exchange visitor participation and associated revenue. DHS requests comment on this potential impact, including literature, data, and research estimating nonimmigrant student enrollment and exchange visitor participation impacts and the potential effect of the requirements on schools or sponsors and the larger economy.
DHS acknowledges there would be implementation and operational costs to the U.S. Government associated with assessing aliens at the POE for purposes of authorizing an admission period of 2 or 4 years. CBP officers would need training on new systems and procedures for conducting inspections at the POE. Once the rule is effective, CBP officers would need readily accessible information on the applicant to assist in
DHS is proposing a 2-year limitation on F nonimmigrants accepted to and attending schools not enrolled in E-Verify, or if enrolled, not a participant in good standing in E-Verify as determined by USCIS. DHS also is proposing a 2-year limitation on J nonimmigrants participating in an exchange visitor program whose sponsor is not enrolled in E-Verify, or if enrolled, not a participant in good standing in E-Verify as determined by USCIS. The proposed rule would require these nonimmigrants to file an EOS request every 2 years to extend their stay.
The EOS estimates and quantitative cost impacts incorporate E-Verify enrollment for J exchange visitor program sponsors. This was done by matching the employer identification number for J exchange visitor program sponsors with the employer identification number for employers enrolled in E-Verify. However, DHS was not able to control for E-Verify enrollment for schools attended by F nonimmigrants because the student data did not contain the employer identification number for schools attended by F nonimmigrants. DHS attempted to manually identify schools enrolled in E-Verify using fields such as school name and employer name, but was unsuccessful. For this reason, DHS did not quantify the impact of the E-Verify provision on F nonimmigrants in this analysis.
Batch processing is a data-based transaction between a school and the SEVIS information database maintained by DHS. Batch processing is intended to help DSOs and ROs update and report their nonimmigrant student and exchange visitor information to SEVIS in a timely manner by automating the exchange of data. Rather than updating individual nonimmigrant student and exchange visitor information manually through SEVIS, batch processing allows schools and program sponsors to pool together and automatically process updates at the same time. The intended benefit of using batch processing is to streamline the SEVIS updating process. Instead of updating individual record information one-by-one through the SEVIS Portal, DSOs can update multiple records at once, automatically.
DSOs are required to submit changes or updates to the nonimmigrant student and exchange visitor information to the SEVIS database system. When using batch processing to submit information to SEVIS, DSOs are required to comply with the proper documentation by submitting their updates as Extensible Markup Language (“XML”) documents. Using the XML format allows the SEVIS batch system to recognize the new or updated student data automatically. The changes are stored in the SEVIS batch system and an updated report is returned to the school for record keeping and verification. Schools can develop their own software or use third-party software suppliers to organize, update, and store their student data according to the SEVIS XML requirements.
If finalized, the rule could lead to system upgrades by schools and program sponsors that currently use batch processing to interface with SEVIS. DHS acknowledges that there are many factors that affect the magnitude of system upgrade costs incurred by schools. For example, there may be one-time software development costs to implement an updated system capable of storing and converting a higher volume of nonimmigrant student and exchange visitor records. There also may be differences in the burden of the proposed rule according to the size of the nonimmigrant student and exchange visitor population at the school, the willingness of the school to maintain up-to-date system-wide software and hardware, and other factors. DHS requests comment on this potential impact, including the potential effect of the requirements on schools or sponsors and any data associated with the impact, such as the typical expenses for third-party software licenses or the potential impact of system-wide hardware or software updates.
Preparing the SEVIS batch system to accept novel categories of information from schools and program sponsors could require new database management procedures. DHS acknowledges that accepting the updated XML files sent from DSOs has the potential to impact the functionality of its internal system. The SEVIS batch system may require system updates to maintain proper operations and system execution during the exchange between the user-system (the DSO's system) and the SEVIS batch system. Because of the uncertainty of the scope and scale of the system upgrades needed as a result of this proposed rule, DHS has not monetized the cost of these potential, future information technology investments.
DHS is proposing a limitation of an aggregate 24-month period of stay, including breaks and an annual vacation, for language training students. Unlike degree programs, there are no nationally-recognized, standard completion requirements for language training programs, allowing students to exploit the current system and stay for an excessive period of time. The proposed 24-month period of stay would allow students a reasonable period of time to attain proficiency in the English language while mitigating the Department's concerns of fraud with the program. DHS estimates that an average of 136,000 students participate in English language training programs annually.
DHS is proposing a limitation on the number of program changes at the same or lower educational levels that students would be permitted to further strengthen the integrity of the F visa category. Specifically, DHS proposes to restrict the number of program changes between educational levels after completion of their first program by limiting F-1 students to two additional changes in programs at the same level and one additional transfer to a lower level.
The proposed rule also would establish certain adjustments for F nonimmigrants with pending EOS applications. Specifically, F nonimmigrants with a timely filed EOS application and whose EOS application is still pending after their admission period indicated on Form I-94 has expired would:
• Receive an automatic extension of their F nonimmigrant status and, as applicable, of their on-campus employment authorization, off-campus employment authorization due to severe economic hardship, or STEM OPT employment authorization, as well as evidence of employment authorization, for up to 180 days or until the applicable applications are approved, whichever is earlier;
• receive an automatic extension of their current authorization for on-campus and off-campus employment based on severe economic hardship resulting from emergent circumstances under 8 CFR 214.2(f)(5)(v), for up to 180 days or the end date of the
• be prohibited from engaging in employment until their EOS applications and applications for employment authorization based on either an internship with an international organization, CPT, pre-completion OPT, or post-completion OPT are approved.
DHS acknowledges that these requirements would affect a cohort of F nonimmigrants. The total impact would depend on the number of F nonimmigrants with a timely filed EOS application and whose EOS application is still pending after their admission period indicated on Form I-94 has expired. DHS does not have data to estimate this sub-population. DHS believes that the incremental impact from these proposed requirements would not have a material impact on the results of this analysis, but requests public comment on these impacts.
Table 12 summarizes the impacts of the proposed rule. Total monetized costs of the proposed rule include DSO and RO rule familiarization and adaptation costs, EOS filing costs, and DSO/RO program extension request processing and SEVIS update costs. The 10-year discounted costs of the proposed rule in 2018 dollars would range from $1.7 billion to $2.0 billion (with 7 and 3 percent discount rates, respectively). The annualized costs of the proposed rule would range from $229.9 million to $237.7 million (with 3 and 7 percent discount rates, respectively).
Should there be a reduction in the number of nonimmigrant students and exchange visitors applying for visas or for F or J status in the United States, then there would be an impact on the amount of fees collected by SEVP and DOS from nonimmigrant students and exchange visitors through visa applications and SEVIS fees. These fees are used to cover the operational costs associated with processing the applications and adjudications. Nonetheless, DHS anticipates that any impacts resulting from potential decreased nonimmigrant student enrollment and exchange visitor participation would be outweighed by the national security benefits anticipated as a result of the proposed requirements.
Among the unquantified benefits of the proposed rule is the opportunity for DHS to have additional opportunities to evaluate whether F, J, and I nonimmigrants are complying with their status requirements. Currently, the D/S framework does not require immigration officers to assess whether these nonimmigrants are complying with the terms and conditions of their stay, or whether they present a national security concern, unless some triggering event (such as an encounter in an enforcement setting, or a request for a benefit from USCIS) leads to a review of the nonimmigrant's compliance. By implementing fixed periods of admission for these nonimmigrants, they will be required to submit an application for EOS or travel and apply for admission, which they are not currently required to do, in order to stay beyond their period of admission. This gives DHS additional opportunities to evaluate whether they are complying with the requirements of their status, or if they present a national security concern. Requiring nonimmigrant academic students, exchange visitors, and representatives of foreign information media to request an additional period of admission directly with the Department would improve consistency of admissions between nonimmigrant categories, enable stronger oversight by immigration officers who would review the nonimmigrant's request and assess whether the nonimmigrant had been complying with the terms and conditions of his or her status, enhance DHS's ability to effectively enforce the statutory inadmissibility grounds related to unlawful presence, and deter aliens and entities from engaging in fraud and abuse within these nonimmigrant programs. Accordingly, these proposed changes would provide the Department with additional protections and mechanisms to exercise the oversight necessary to vigorously enforce our nation's immigration laws, protect the integrity of these categories, and promptly detect national security concerns.
DHS believes this proposed rule could result in reduced fraud, abuse, and national security risks for these nonimmigrant programs, but whether the rule will in fact result in a reduction will be borne out when the final rule is implemented. Compared to the current D/S framework in which a nonimmigrant's substantive compliance might never be reviewed by DHS, DHS believes that the rule would be likely to result in more prompt detection of national security concerns or abuse by F, J and I nonimmigrants and could serve as a deterrent to those who would otherwise plan to engage in fraud or otherwise abuse these nonimmigrant classifications. The rule proposes additional oversight of these individuals. Without this oversight, there is no data on prevalence of fraud and abuse by F, J, and I nonimmigrants and only limited data on these individuals' impact on national security.
Before arriving at a fixed admission period of up to either 2 or 4-years, DHS considered various options, including no action, a 1- and 3-year fixed admission period alternative, and a standard 1-year fixed admission period for all F and J nonimmigrants.
DHS first considered a “no action” alternative, under which F, J, and I nonimmigrants would continue being admitted for D/S. DHS determined that this alternative would not address the lack of pre-determined points for immigration officers to directly evaluate whether F, J and I nonimmigrants are maintaining their status, currently lacking because of the D/S framework. Additionally, DSOs and ROs would continue extending the program and therefore the nonimmigrant status of F and J aliens, instead of having immigration officers, who are government officials, make this assessment. As a result, there would continue to be challenges to the Department's ability to effectively monitor and oversee these categories of nonimmigrants. With this option, the Department would continue to be concerned about the integrity of the programs and the potential for increased risk to national security.
An alternative that DHS considered was to admit F and J nonimmigrants to their program end date, not to exceed 3 years, or 1 year for nonimmigrants
DHS calculated the costs for this alternative. DSO and RO rule familiarization and adaptation costs would remain the same under this alternative ($93.3 million during the first year after the rule takes effect). To calculate EOS filing costs, DHS multiplied the expected number of extension of stay requests under the 3-year and 1-year fixed admission period alternative for F, I, and J nonimmigrants (Table 13) by the appropriate applicant unit costs (Table 7).
Table 14 presents undiscounted EOS filing costs under the 3-year and 1-year fixed admission period alternative by nonimmigrant category and year, along with a breakdown of costs based on filing type (paper or electronic) and the use or nonuse of outside help to complete the form. EOS filing costs are lowest during the early transition period (2020-2022) and highest at the end of the transition period (2023) because of the variation in the estimated number of EOS requests (Table 13).
The total costs for EOS request filing under the 3-year and 1-year fixed period of admission alternative would be $3.1 billion undiscounted,
To estimate costs for DSOs and ROs to process program extension requests and update SEVIS under the 3-year and 1-year fixed period of admission alternative, DHS multiplied the expected number of F-1 and J-1 EOS requests under the 3-year and 1-year fixed admission period alternative (Table 13) by the expected DSO and RO time requirement per EOS request (3 hours) and the DSO and RO loaded wage rate ($28.93 × 1.46 loaded wage rate factor).
Table 15 presents undiscounted DSO/RO costs to process program extension requests and update SEVIS throughout the 2020-2029 study period under the 3-year and 1-year fixed admission period alternative. Similar to EOS filing costs, DSO/RO costs to process program extension requests and update SEVIS are lowest during the early transition period (2020-2022) and highest at the end of the transition period (2023) because of the variation in the estimated number of EOS requests (Table 13).
The total cost estimate for DSOs and ROs to process program extension requests and update SEVIS under the 3-year and 1-year fixed period of admission alternative would be $508.2 million undiscounted,
Total monetized costs of the 3-year and 1-year fixed period of admission alternative include DSO and RO rule familiarization and adaptation costs, EOS filing costs, and DSO/RO costs for processing program extension requests and updating SEVIS. The 10-year discounted total costs of the 3-year and 1-year fixed period of admission alternative would be $3.2 billion with a 3 percent discount rate and $2.7 billion
DHS also considered a standard 1-year fixed admission period for all F and J nonimmigrants. This option would treat all F and J nonimmigrants equally and would likely allow for easier implementation by USCIS and CBP by reducing the complexity of implementation and enforcement. Nevertheless, it could result in significant costs to nonimmigrants and the Department. There are more than 1 million F students who are enrolled in programs of study that last longer than 1 year. With a 1-year admission period, DHS expects that all of them would be required to apply for additional time. This would be a significant cost to students and exchange visitors, especially those who comply with the terms and conditions of their admission and those attending undergraduate programs that typically require 4 years to complete. Further, such a restrictive admission period could have unintended consequences. For example, if USCIS's EOS processing time is significantly lengthened due to a 1-year admission period, cases presenting national security or fraud concerns would not necessarily be prioritized, thereby allowing a mala fide student or exchange visitor to remain in the United States until USCIS adjudicated his or her petition.
DHS also considered whether the Department could utilize data from SEVIS to identify potentially problematic F and J nonimmigrants and require only this targeted subset of F and J nonimmigrants to complete an EOS. SEVIS information is used when aliens apply for a visa and admission to the U.S. as an F or J nonimmigrant, as well as to track and monitor their status. While this information is likely to be helpful in identifying aliens who should be subjected to further review, in some cases the information may not be sufficient for determining whether these nonimmigrants are engaging in fraudulent behavior or otherwise have fallen out of status. The data received when applying for an EOS provides additional information not contained in SEVIS that helps the Department effectively monitor and oversee F and J nonimmigrants. Further, an EOS provides a direct interaction with an immigration officer. As a potential remedy, the Department considered whether the SEVIS data could be used to classify a subset of nonimmigrants as higher risk of being a national security threat or committing fraud. The identified subset would then be required to complete an EOS as described in the proposal. Depending on how the Department targeted higher risk aliens, a smaller number of EOS's would need to be completed as compared to the current proposal, thus lowering the burden on nonimmigrants, program sponsors, and the Department. The Department rejected this alternative in favor of moving all F and J nonimmigrants to a fixed period admission because SEVIS does not readily lend itself to this purpose, as it is used to gather information regarding technical compliance, and the data cannot replace the information that can be developed in the course of an adjudication, in which USCIS has the opportunity to ask questions via a request for evidence and, if necessary, conduct an interview. The Department also rejected this alternative due to the operational burden and challenges that would exist if some F and J nonimmigrants were admitted for D/S, but others for a fixed period of admission. In addition, by requiring all of the F and J nonimmigrants to be admitted for a fixed period, this allows for the opportunity for improved detection of fraud or abuse, as the Department has observed that abuse is not limited to one particular type of school or program. By fixing a date certain period of admission, all of these nonimmigrants are on notice as to the date their period of stay expires, and the Department will be in a position to provide greater oversight to help deter F and J nonimmigrants from engaging in fraud and abuse, including staying beyond that fixed date. All those who overstay would begin to accrue unlawful presence, generally the day after their period of stay expires, when admitted for a fixed period of admission. Lastly, the Department believes that a fixed period of admission for these populations may deter fraud, allow for earlier detection of national security concerns, and help reduce overstays which outweighs reducing the number of EOS requests that may be required.
Table 16 compares the quantitative costs and qualitative benefits of the various alternatives. The “no action” alternative has zero costs but does not address how the D/S framework challenges the Department's ability to effectively implement the statutory inadmissibility grounds of unlawful presence, undermines the integrity of these programs, and presents a risk to national security. The alternative with a 3-year maximum period of admission (or 1-year for nonimmigrants meeting certain conditions) would provide the Department with more frequent direct check in points on the nonimmigrants than a 4-year maximum period of admission, but DHS determined that the expense and workload implications of this option would be too burdensome on all stakeholders. DHS thus selected the proposed rule, which would impose lower costs while providing the Department with an effective mechanism to exercise the oversight necessary to vigorously enforce our nation's immigration laws, protect the integrity of these categories, and promptly detect national security concerns.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small business, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. DHS requests information and data from the public that would assist in better understanding the impact of this proposed rule on small entities. DHS also seeks input from the public on alternatives that will accomplish the same objectives and minimize the proposed rule's economic impact on small entities. An initial regulatory flexibility analysis (IRFA) follows.
DHS proposes to amend its regulations to eliminate the practice of admitting F academic students, I representatives of foreign information media, and J exchange visitors for the period of time that they are complying with the conditions of their nonimmigrant category (“duration of status”) and replace it with a fixed period of admission. The proposed rule would enable DHS to more effectively combat fraud and abuse, more accurately account for the accrual of unlawful presence grounds of inadmissibility, and better protect our nation's immigration system. DHS's objectives and legal authority for this proposed rule are further discussed throughout this NPRM.
The objective of the proposed rule is to establish requirements that would help: (1) Ensure that the Department has an effective mechanism to periodically and directly assess whether these nonimmigrants are complying with the conditions of their classifications and U.S. immigration laws; and (2), obtain timely and accurate information about the activities they engage in during their temporary stay in the United States. If immigration officers discover a nonimmigrant in one of these categories has overstayed or otherwise violated his or her status, the proposed changes would ensure the Department is better able to carry out the unlawful presence provisions of the Immigration and Nationality Act (INA). DHS believes this greater oversight would deter F, J, or I nonimmigrants from engaging in fraud and abuse and strengthen the integrity of these nonimmigrant classifications.
The legal basis for this proposed rule is grounded in the Secretary of Homeland Security's broad authority to administer and enforce the nation's immigration laws. Under Section 102 of the Homeland Security Act of 2002 (HSA) (Pub. L. 107-296, 116 Stat. 2135), 6 U.S.C. 112 and section 103(a)(1) and (3) of the INA, 8 U.S.C. 1103 (a)(1),(3), charge the Secretary with the administration and enforcement of the immigration and naturalization laws of the United States. Section 402(4) of the HSA, 6 U.S.C. 202(4), expressly authorizes the Secretary, consistent with 6 U.S.C. 236 (the DOS's statutory authority concerning visa issuance and refusal), to establish and administer rules governing the granting of visas or other forms of permission to enter the United States to individuals who are not U.S. citizens or lawful permanent residents. See also 6 U.S.C. 271(a)(3), (b) (describing certain USCIS functions and authorities, including USCIS' authority to establish national immigration services policies and priorities and adjudicate applications) and 6 U.S.C. 252(a)(4) (describing ICE's authority to collect information relating to foreign students and program participants and to use such information to carry out its enforcement functions). Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), and Title IV of the Homeland Security Act of 2002, Public Law 107-296, the Secretary of Homeland Security has the authority to prescribe, by regulation, the time and conditions of admission of all nonimmigrants.
The small entities to which the proposed rule would apply include all small SEVP-certified schools and J exchange visitor program sponsors. Employers of I foreign information media representatives would incur negligible costs from the proposed rule because the burden for filing an EOS request falls on the I nonimmigrant, not the employer. Employers of I foreign information media representatives are thus excluded from the small business impact analysis. SEVP-Certified Institutions Certified to Enroll Nonimmigrant Students
As of 2018, there were a total of 6,754 SEVP-certified institutions (schools) authorized to enroll F nonimmigrant students that would be subject to the proposed rule because they are authorized to enroll F-1 nonimmigrants for a length of time greater than 1 year. Of these schools, 1,346 are public, 655 are for-profit, 4,183 are private nonprofit, and 570 are private without a for-profit/nonprofit specification.
DHS estimated the percentage of public schools that are small entities using a random sample of the 1,346 SEVP-certified public schools. DHS does not keep data on the size of the jurisdiction where each SEVP-certified school is located and, therefore, needed to do additional research to determine which schools are small. Due to the large number of SEVP-certified public schools and the level of effort associated with additional data collection, DHS assessed the jurisdiction size for a sample of 299 public schools selected randomly from the 1,346 SEVP-certified public schools.
DHS conservatively assumes that all 4,183 private nonprofit schools are small entities because they are not dominant in their field.
To determine which of the remaining 655 private for-profit schools are considered a small entity, DHS sampled 243 for-profit schools.
DHS found that the revenue of 163 of the 243 sampled for-profit schools fell below the SBA size standard of a small business according to their industry. Therefore, DHS estimates that 67 percent of all for-profit schools authorized to enroll F nonimmigrants fall below the SBA size standard of a small business according to their industry. As a result, DHS estimates that 439 of the 655 for-profit schools fall below the SBA size standard of a small business according and are considered small entities (67% × 655 = 438.85, rounded to 439). Table 17 shows a breakdown of the number of small for-profit SEVP-certified schools by industry.
DHS estimated each private school's annual receipts by multiplying the approximate annual cost of room, board, and tuition by the average annual number of total students based on data provided by the schools to SEVP. DHS acknowledges that this method of estimating receipts may be an incomplete account of a school's income, which may also include contributions from private individuals or other endowments. Because these data reflect a snapshot of all SEVP-certified schools authorized to enroll F students in 2018, DHS acknowledges there may be changes in the school's enrollment numbers and that a school's estimated revenue may differ from actual revenue, which could include income generated from other sources.
Table 18 shows a summary by school type of the number of SEVP certified schools authorized to enroll F nonimmigrants and estimated small entities. DHS estimates that 5,192 schools meet the SBA definition of a small entity, or approximately 77 percent of the 6,754 schools included in this analysis.
As of 2018, there were a total of 1,171 J exchange visitor program sponsors that would be subject to the proposed rule because they are authorized by DOS to sponsor J exchange visitor programs for a length of time greater than 1 year. Of these sponsors, 54 are government entities, 891 are schools, 23 are hospitals and related institutions, 141 are nonprofit institutions, and 62 are for-profit institutions. These sponsors issue DS-2019s according to certain designation codes that map to specific programs. Table 19 shows the type for each J exchange visitor program designation code.
DHS determined that all 54 government entities (G-1, G-2, G-3, G-4, G-5, and G-7 program sponsors) are large entities because 30 are federal government entities and 24 are state or local government entities. Of the 24 state or local government entities, all represented jurisdictions with populations greater than 50,000. Therefore, DHS classified all 54 government entities as large entities.
DHS identified 891 schools that are J exchange visitor program sponsors. To identify which J exchange visitor program sponsors were small entities, DHS compared the 891 schools sponsoring J exchange visitor programs to the schools authorized to enroll F nonimmigrants. Of the 891 schools sponsoring J exchange visitor programs, 713 (80 percent) also enrolled F nonimmigrants. Of the 713 schools sponsoring both F and J nonimmigrants, 357 (50 percent) of the schools are public schools and 357 (50 percent) are private, nonprofit schools. DHS assumes that the remaining 178 (20 percent) of schools sponsoring only J exchange visitors are also 50 percent public and 50 percent private, nonprofit schools. DHS thus estimates that there would be 446 public schools and 446 private, nonprofit schools (50 percent each of the 891 J-sponsor schools). Since all affected public schools have been found to be large entities and all affected private, nonprofit schools are assumed to be small entities, DHS estimates that 446 of the 891 J-sponsor schools are small entities.
DHS identified 23 hospitals and related institutions sponsoring J exchange visitor programs. Of these 23 hospitals, 22 are nonprofit. DHS assumes that all 22 private nonprofit hospitals are small entities because they are not dominant in their fields. Only one hospital and related institution, a health maintenance organization medical health center with six-digit NAICS code 621491, sponsoring J exchange visitor programs is a for-profit institution that exceeded the threshold of $32.5 million annually in receipts for being a large entity.
DHS conservatively assumes that all 141 nonprofits sponsoring J exchange visitor programs are small entities because they are not dominant in their field. DHS requests comments on these assumptions.
DHS identified a total of 62 potentially affected for-profit organizations sponsoring J exchange visitor programs. In order to determine which of these for-profit entities may be
Overall, DHS identified 1,171 unique entities sponsoring J exchange visitor programs. Of these 1,171 entities, DHS identified 642 small entities that may be affected by the proposed rule. Table 20 shows a summary by sponsor type of the number of J exchange visitor program sponsors and estimated small entities. DHS requests comments on these assumptions, particularly with regard to J exchange visitor program nonprofit sponsors.
The proposed rule would increase costs for SEVP-certified schools and J exchange visitor program sponsors because DSOs and ROs would have to spend approximately 40 hours for rule familiarization and adaptation (in the first year only; 8 hours to complete rule familiarization training, 16 hours to create and modify training materials, and 16 hours to adapt to the proposed rule through system wide briefings and systemic changes) and approximately 3 hours per F-1/J-1 program extension request to review the Form I-539 completed by the F-1/J-1 nonimmigrant (1 hour), update the SEVIS record and track program extension requests (1 hour), and advise the F-1/J-1 nonimmigrant about the extension process and the requirements to file an EOS with USCIS (1 hour annually). DHS estimates the annual impact to small SEVP-certified schools and J exchange visitor program sponsors based on the cost of compliance as represented as a percentage of their annual revenue. This analysis examines the impact that the proposed rule would have on small SEVP-certified schools and J exchange visitor program sponsors.
The IRFA evaluates the impacts that have been quantitatively estimated in the regulatory impact analysis. As discussed in the regulatory impact analysis, there are other proposed rule requirements that could impact small SEVP-certified schools and J exchange visitor program sponsors. The regulatory impact analysis qualitatively discusses proposed requirements affecting English language training programs; changes in educational levels; and extensions to employment authorizations. Therefore, the potential impacts of these requirements on small entities is not quantitatively evaluated in this IRFA.
As shown in Table18, DHS estimates that 5,192 SEVP-certified schools that are authorized to enroll F nonimmigrants meet the SBA definition of a small entity, including 4,183 private, nonprofit schools; 570 private schools without a for-profit/nonprofit designation; and 439 for-profit schools. DHS determined a SEVP-certified school's annual revenue by multiplying the average cost per F student by average annual enrollment. DHS acknowledges that this method to estimate revenue may be an incomplete account of a SEVP-certified school's revenue, which may also include contributions from private individuals or other endowments.
DHS examined all 5,192 small SEVP-certified schools authorized to enroll F nonimmigrants to estimate the impact of estimated DSO rule familiarization and adaptation costs in the first year of the rule. For this analysis, DHS assumed that each small SEVP-certified school has three DSOs that will incur rule familiarization and adaptation costs.
Table 21 shows the number of small schools within the range of impact to each school's estimated annual revenue. Of the 5,192 small schools, 5,007, or 96.4 percent, would experience an impact less than or equal to 1 percent of their estimated annual revenue as a result of the rule familiarization and adaptation costs. DHS estimates 118 small schools (2.3 percent) would realize an impact between 1 percent and 2 percent of their estimated annual revenue, 29 small schools (0.6 percent) would realize an impact between 2 percent and 3 percent, and 38 small schools (0.7 percent) would realize an impact greater than or equal to 3 percent.
DHS also examined all 5,192 small SEVP-certified schools to estimate the impact of annual DSO costs for processing program extension requests and updating SEVIS. For this analysis, DHS estimated the number of program extension requests that each school is expected to process by dividing the estimated annual number of F-1 nonimmigrant EOS requests from the full implementation period (249,017; see Table 6) by the total number of SEVP-certified schools, small and large (6,754). This methodology produced an estimated average of 37 annual EOS requests for each school. The DSO cost per EOS request is $127 (3 hours × $28.93 × 1.46 loaded wage rate factor).
Of the 5,192 small schools, 5,025, or 96.8 percent, would experience an impact less than or equal to 1 percent of their estimated annual revenue. DHS estimates 108 small schools (2.1 percent) would realize an impact between 1 percent and 2 percent of their estimated annual revenue, 27 small schools (0.5 percent) would realize an impact between 2 percent and 3 percent, and 32 small schools (0.6 percent) would realize an impact greater than or equal to 3 percent. Table 22 shows the number of small schools within the range of impact to each school's estimated annual revenue.
DHS recognizes that the 37 annual EOS requests assumption for each SEVP-certified school may overestimate the costs for schools with low average annual enrollment. As shown in Table 23, approximately 72 percent of the small schools identified as having EOS processing cost impacts greater than or equal to 3 percent of annual school revenue have 37 or fewer students enrolled on average, implying that the analysis may be overestimating the number of schools with impacts greater than 3 percent.
As shown in Table 20, 642 J exchange visitor program sponsors meet the SBA definition of a small entity. Because reliable financial information is not available for all J sponsors, DHS did not assess impacts of the proposed rule for each small J exchange visitor program sponsor. Instead, DHS determined the minimum earnings required for proposed rule costs to equal 1 percent, 2 percent, and 3 percent of J sponsor revenue. For this analysis, DHS assumed that each small J exchange visitor program sponsor will have three ROs that will incur rule familiarization and adaptation costs in the first year.
Table 24 provides the minimum annual earnings required for proposed rule costs to equal 1 percent, 2 percent, and 3 percent of J exchange visitor program visitor sponsor revenue. The impact of the RO rule familiarization and adaptation costs of the proposed rule ($5,069) will not exceed 1 percent of sponsor earnings if earnings are at least $506,854. If J exchange visitor program sponsors earnings are at least $168,951 or $253,427, the rule familiarization and adaption costs of the proposed rule will not exceed 3 percent or 2 percent, respectively, of sponsor earnings. DHS anticipates that the majority of small J sponsors will have earnings that exceed these thresholds. DHS requests comments on the availability of earnings data for J exchange visitor program sponsors in order to refine this analysis.
The impact of the costs for processing program extension requests and updating SEVIS (10 EOS requests; $1,251) will not exceed 1 percent of sponsor earnings if earnings are at least $125,144. If J exchange visitor program sponsor earnings are at least $41,715 or $62,572, the EOS request processing costs of the proposed rule will not exceed 3 percent or 2 percent, respectively, of sponsor earnings. DHS anticipates that the majority of small J sponsors will have earnings that exceed these thresholds. DHS requests comments on the availability of earnings data for J exchange visitor program sponsors in order to refine this analysis.
Department of State Exchange Visitor Program regulations would need to be updated to inform the sponsor community of this new EOS procedure. The regulations at 22 CFR part 62.43 describe the procedures for J-1 program extensions. These regulations may need to be updated to reference the changes made in this proposed rule, whereby a J-1 must file for an extension of stay with USCIS in order to remain in the United States beyond the status expiration date on their I-94, or depart the United States and seek admission as a J-1 nonimmigrant at a port of entry, in addition to securing a program extension from the Responsible Officer or from the Department of State, as required by the current regulations.”
DHS first considered a “no action” alternative, under which DHS would continue admitting nonimmigrants with F, I, and J status without an end date for their authorized periods of stay. DHS determined that this alternative would not adequately provide immigration officers with an opportunity to evaluate an alien's maintenance of status at pre-determined points, nor would it enable immigration officers an opportunity to assess whether an alien is accruing unlawful presence, and the `no action' alternative would do nothing to address the fraud and abuse currently present in these categories.
Another alternative DHS considered was to admit F and J nonimmigrants to their program end date, not to exceed 3 years (or 1 year for nonimmigrants meeting certain conditions). While such an option would provide the Department with more frequent direct evaluations of nonimmigrants than a 4-year maximum period of admission (or 2-year maximum for nonimmigrants meeting certain conditions), DHS was concerned it would be unduly burdensome on many F and J nonimmigrants. DHS believes that a period of admission for up to 4 years best aligns with the normal progress for most programs. A 3-year maximum period of stay would require almost every nonimmigrant enrolled in a 4-year program to apply for an EOS and would result in greater administrative burdens on USCIS and CBP compared to the proposed 4-year maximum period of admission. Specifically, USCIS would have to adjudicate extension of stay applications with more frequency if a 3-year maximum period of stay is chosen over a 4-year one. Similarly, CBP would have to process applications for admission at POEs more frequently under the 3-year maximum period of stay alternative. Therefore, DHS believes an admission for the program end date, not to exceed 4 years (except for limited exceptions that would limit admissions to 2 years) is the best option and welcomes comments on this proposal.
DHS also considered a standard 1-year fixed admission period for all F and J nonimmigrants. This option would treat all nonimmigrants with F and J status equally and would likely allow for easier implementation by CBP at the POEs. Nevertheless, it could result in significant costs to nonimmigrants and the Department. There are more than 1 million F students who are enrolled in programs of study that last longer than 1 year. With a 1-year admission period, DHS expects that all of them would be required to apply for additional time. This could be a significant cost to students and exchange visitors, especially those who comply with the terms and conditions of their admission and those attending undergraduate programs that typically require 4 years to complete. Further, such a short admission period could have unintended consequences. If USCIS's EOS processing time is significantly lengthened due to a 1-year admission period, cases presenting national security or fraud concerns would not necessarily be prioritized, thereby allowing a mala fide student or exchange visitor to remain in the United States until USCIS adjudicated his or her petition.
DHS requests comment on the impacts on small entities. Members of the public should submit a comment, as described in this proposed rule under Public Participation, if they think that their business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it. It would be helpful if commenters provide DHS with as much information as possible as to why this proposed rule would create an impact on small businesses. Commenters should also describe any recommended alternative measures that would mitigate the impact on small businesses.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult ICE using the contact information provided in the
This proposed rule is a major rule as defined by 5 U.S.C. 804, also known as the “Congressional Review Act,” as enacted in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 110 Stat. 847, 868
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any year. Though this proposed rule would not result in such an expenditure, DHS does discuss the effects of this rule elsewhere in this preamble.
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995) (PRA), all Departments are required to submit to OMB, for review and approval, any reporting or recordkeeping requirements inherent in a rule. DHS, USCIS and ICE are revising one information collection and proposing non-substantive edits to one information collection in association with this rulemaking action:
DHS, USCIS and ICE invite the general public and other federal agencies to comment on the impact to the proposed collection of information.
Comments are encouraged and will be accepted for 60 days from the publication date of the proposed rule. All submissions received must include the OMB Control Number 1615-0003 in the body of the letter and the agency name. To avoid duplicate submissions, please use only one of the methods under the
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3) Agency form number, if any, and the applicable component of the DHS sponsoring the collection: I-539 and I-539A; USCIS.
(4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. This form will be used for nonimmigrants to apply for an extension of stay, for a change to another nonimmigrant classification, or for obtaining V nonimmigrant classification.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: The estimated total number of respondents for the information collection Form I-539 (paper) is 318,421 and the estimated hour burden per response is 2.38 hours; the estimated total number of respondents for the information collection Form I-539 (e-file) is 136,466 and the estimated hour burden per response is 1.083 hours; the estimated total number of respondents for the information collection Supplement A is 83,712 and the estimated hour burden per response is .50 hours; the estimated total number of respondents for biometrics processing is 538,599 and the estimated hour burden per response is 1.17 hours.
(6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual hour burden associated with this collection of information in hours is 1,577,242.
(7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $105,461,002.
Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-12, DHS must submit to OMB, for review and approval, any reporting requirements inherent in a rule unless they are exempt. Although this rule does not impose any new reporting or recordkeeping requirements under the PRA for this information collection, this rule will require non-substantive edits to USCIS Form I-765, Application for Employment Authorization. Accordingly, USCIS has submitted a Paperwork Reduction Act Change Worksheet, Form OMB 83-C, and amended information collection instruments to OMB for review and approval in accordance with the PRA.
This proposed rule would 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. DHS does not expect that this proposed rule would impose substantial direct compliance costs on State and local governments, or preempt State law even though schools, colleges, and universities may choose to enroll in E-Verify to permit their students a longer initial period of admission. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This proposed rule meets applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988,
DHS has analyzed this proposed rule under Executive Order 13211,
DHS Management Directive (MD) 023-01 Rev. 01 and Instruction Manual (IM) 023-01-001-01 Rev. 01 establish the policy and procedures that DHS and its Components use to implement the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4375, and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508.
The CEQ regulations enable federal agencies to establish categories of actions that do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1508.4. DHS's Categorical Exclusions are listed in IM 023-01-001-01 Rev. 01, Appendix A, Table 1.
For an action to be categorically excluded, the action must satisfy each of the following three conditions:
1. The entire action clearly fits within one or more of the Categorical Exclusions;
2. The action is not a piece of a larger action; and
3. No extraordinary circumstances exist that create the potential for a significant environmental effect. IM 023-01-001-01 Rev. 01 sec. V(B)(2)(a)-(c).
If the proposed action does not clearly meet all three conditions, DHS or the Component prepares an Environmental
DHS proposes to amend its regulations to eliminate the practice of admitting F-1 nonimmigrant students, I nonimmigrant representatives of information media, and J-1 exchange visitors (and F-2/J-2 family members) for D/S. The proposed rule would provide for nonimmigrants seeking entry under F, I, or J visas to be admitted for the period required to complete their academic program, foreign information media employment, or exchange visitor program, not to exceed the periods of time defined in this proposed rule. The proposed rule would also require nonimmigrants seeking to continue their studies, foreign information media employment, or exchange visitor program beyond the admission period granted at entry to apply for extension. DHS has analyzed this proposed rule under MD 023-01 Rev. 01 and IM 023-01-001-01 Rev. 01. DHS has determined that this proposed rulemaking action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule completely fits within the Categorical Exclusion found in IM 023-01-001-01 Rev. 01, Appendix A, Table 1, number A3(d): “Promulgation of rules. that interpret or amend an existing regulation without changing its environmental effect.” This proposed rule is not part of a larger action. This proposed rule presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this proposed rule is categorically excluded from further NEPA review.
DHS seeks any comments or information that may lead to the discovery of any significant environmental effects from this proposed rule.
This proposed rule does not have tribal implications under Executive Order 13175,
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630,
Executive Order 13045 requires agencies to consider the impacts of environmental health risk or safety risk that may disproportionately affect children. DHS has reviewed this proposed rule and determined that this rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Therefore, DHS has not prepared a statement under this executive order.
The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (
DHS has determined that this proposed action will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, is delegating the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the
Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
Administrative practice and procedure, Aliens, Reporting and recordkeeping requirements.
Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.
Accordingly, DHS proposes to amend parts 214, 248, and 274a of chapter I, subchapter B, of title 8 of the Code of Federal Regulations as follows:
6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1356, and 1372; section 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-218.
The additions and revisions read as follows:
(a) * * *
(4)
(i)
(B) Aliens seeking admission to the United States as an F nonimmigrant with a properly filed pending application for extension of stay as an F nonimmigrant may, if they have time remaining on the period of stay authorized prior to departure, be admitted for a period up to the unexpired period of stay authorized prior to the alien's departure, plus an additional 30 days as provided in 8 CFR 214.2(f)(5)(iv), subject to the requirements in paragraph (c)(6) of this section, or if the alien seeks admission with a Form I-20 for a program end date beyond their previously authorized period of admission, the alien may be admitted for the period specified in 8 CFR 214.2(f)(5), subject to the requirements in paragraph (c)(6) of this section;
(C) Aliens seeking admission to the United States as an F nonimmigrant with an approved extension of stay for F nonimmigrant status may be admitted until the expiration of the approved extension of stay, plus an additional 30 days, as provided in 8 CFR 214.2(f)(5)(iv);
(D) Post-completion Optional Practical Training (OPT) and Science Technology Engineering and Mathematics OPT extension (STEM OPT extension). Aliens seeking admission to the United States as an F nonimmigrant to pursue post-completion OPT or a STEM OPT extension may be admitted until the end date of the approved employment authorization for post-completion OPT or STEM OPT, or if the Application for Employment Authorization, Form I-765 or successor form for post-completion or STEM OPT is still pending with USCIS, as evidenced by a notice issued by USCIS indicating receipt of such application, until the Designated School Official's recommended employment end date for post-completion or STEM OPT specified on the Form I-20, subject to the requirements in paragraphs (c)(6) of this section and 8 CFR 274a.12(b)(6)(iv), plus a 30-day period as provided in 8 CFR 214.2(f)(5)(iv).
(ii)
(B) Aliens seeking admission to the United States as a J nonimmigrant with a properly filed pending extension of stay as a J nonimmigrant may, if they have time remaining on the period of stay authorized prior to departure, be admitted for a period up to the unexpired period of stay authorized prior to the alien's departure, plus an additional 30 days as provided in 8 CFR 214.2(j)(1)(ii)(C), subject to the requirements in paragraph (c)(6) of this section, provided that if the alien seeks admission with a Form DS-2019 for a program end date beyond his or her previously authorized period of admission, the alien may be admitted for the period specified in 8 CFR 214.2(j)(1), subject to the requirements in paragraph (c)(6) of this section;
(C) Aliens seeking admission to the United States as a J nonimmigrant with an approved extension of stay in J nonimmigrant status may be admitted up to the expiration of the approved extension of stay, plus an additional 30 days as provided in 8 CFR 214.2(j)(1)(ii)(C).
(b) Readmission of nonimmigrants under section 101(a)(15) (F), (J), or (M) whose visa validity is considered automatically extended] to complete unexpired periods of previous admission or extension of stay—
(1)
(2)
(3)
(c) * * *
(2)
(3) * * *
(v) Any nonimmigrant admitted for duration of status.
(5)
(6)
(ii) An application for extension of stay in F, I, or J nonimmigrant status is abandoned if an alien departs the United States while the application is pending and seeks admission with a Form I-20 or DS-2019 for a program end date beyond their previously authorized period of admission. USCIS will not consider as abandoned any corresponding applications for employment authorization.
(m)
(2)
(i) If the F-1's application for post-completion OPT or STEM-OPT employment authorization is approved, the F-1 will be authorized to remain in the United States in F status until the expiration date of the employment authorization document, plus 60-days. If the employment authorization application is denied, the F-1 would continue to be authorized to remain in the United States until the program end date listed on their Form I-20, plus 60 days, as long as he or she continues to pursue a full course of study and otherwise meets the requirements for F-1 status.
(ii) Aliens in F-1 status with pending employment authorization applications, other than post-completion OPT and STEM-OPT, who continue to pursue a full course of study and otherwise meet the requirements for F-1 status, continue to be authorized to remain in the United States until the program end date listed on the Form I-20, plus 60 days, regardless of whether the employment authorization application is approved or denied.
(3)
(4)
The revisions and additions read as follows:
(f) * * *
(5)
(A) Aliens subject to the limitations described in paragraph (f)(20) of this section may be admitted for the applicable period under that paragraph.
(B) Aliens whose course of study is in a language training program are restricted to an aggregate total of 24 months of language study, including any school breaks and annual vacations.
(C) Aliens who are granted F-1 status as border commuter students under the provisions in paragraph (f)(18) of this section may be admitted for the applicable period described under that paragraph.
(D) Aliens who are granted F-1 status to attend a public high school are restricted to an aggregate of no more than 12 months to complete their course of study, including any school breaks and annual vacations.
(E) Aliens with pending employment authorization applications who are admitted based on the DSO's recommended employment end date for post-completion OPT or STEM OPT specified on their Form I-20, with a notice issued by USCIS indicating receipt of the Application for Employment Authorization, Form I-765 or successor form for post-completion or STEM OPT, who cease employment pursuant to an employment authorization document (EAD) that expires before the alien's fixed date of admission as noted on their I-94, will be considered to be in the United States in a period of authorized stay from the date of the expiration noted on their EAD until the fixed date of admission as noted on their I-94.
(F) The authorized period of stay for F-2 dependents may not exceed the authorized period of stay of the principal F-1 alien.
(ii)
(B) An alien in F-1 status who has completed a program in the United States at one educational level and begins a new program at the same educational level, up to, but not more than two additional times, is considered to be maintaining F-1 status if otherwise complying with requirements under this paragraph (f). This two-time limit on beginning additional programs after completion of a program in the United States at the same educational level is a lifetime limit and does not reset with a new admission as an F-1.
(C) An alien in F-1 status who has completed a program in the United States at one educational level and begins a new program at a lower educational level is considered to be maintaining F-1 status only in the first instance of such a change, and if the alien is otherwise complying with the requirements under this paragraph (f). The one-time limit on changing to a lower educational level following completion of a program at a higher level is a lifetime restriction and does not reset with a new admission as an F-1.
(D) When seeking a change in educational levels, aliens in F-1 status referenced in paragraphs (f)(5)(ii)(A) through (C) of this section must, if seeking an extension of stay, apply for an extension of stay on the form designated by USCIS, with the required fee and in accordance with the form instructions, including any biometrics required by 8 CFR 103.16.
(E) DHS may delay or suspend the implementation of paragraphs (f)(5)(ii)(A) through (C) of this section, in its discretion, if it determines that implementation is infeasible for any reason. If DHS delays or suspends any provisions in paragraphs (f)(5)(ii)(A) through (C) governing the change in degree level, DHS will make an announcement of the delay or suspension on SEVP's website at
(iv)
(vi)
(
(
(
(B) The automatic extension of the alien's F-1 nonimmigrant status and employment authorization under paragraph (f)(5)(vi)(A) of this section will automatically terminate upon the rejection, denial, revocation, or withdrawal of the H-1B petition filed on such alien's behalf; upon the withdrawal or denial of the request for change of nonimmigrant status, even if the H-1B petition filed on the alien's behalf is approved for consular processing; or, if USCIS approves the H-1B petition and associated change of status request, and the change of status will take effect prior to April 1 of the fiscal year for which H-1B status was requested, upon the date that the change of status takes effect.
(C) In order to obtain the automatic extension of stay and employment authorization under this paragraph, the alien, consistent with 8 CFR 248, must not have violated the terms or conditions of his or her F-1 status.
(D) The automatic extension of F-1 status under this paragraph (f)(5)(vi) also applies to an F-2 dependent spouse and child(ren) who timely files a change of status application from an F-2 to an H-4 nonimmigrant. The automatic extension for these dependents ends upon termination of the F-1 nonimmigrant's automatic extension. The timely filing of such change of status application does not authorize employment for the F-2 dependents.
(vii)
(7)
(iii)
(
(
(
(B)
(
(
(
(C)
(D)
(iv)
(v)
(vi)
(vii)
(viii)
(8)
(A) The alien will begin classes at the transfer school or program within 5 months of transferring out of the current school or within 5 months of the program completion date on his or her current Form I-20, or successor form, whichever is earlier.
(B) If the alien is authorized to engage in post-completion optional practical training (OPT), he or she must be able to resume classes within 5 months of transferring out of the school that recommended OPT or the date the OPT authorization ends, whichever is earlier.
(ii) An alien who is not maintaining F-1 status, including because he or she failed to pursue a full course of study at the school that he or she was last authorized to attend, is ineligible to change educational levels or transfer and must either depart immediately, or apply for reinstatement under the provisions of paragraph (f)(16) of this section, if eligible. Academic probation, suspension, or a pattern of student behavior demonstrating a repeated inability or unwillingness toward completing his or her course of study, such as failing grades, resulting in the student failing to carry a full course of study, are not acceptable reasons for failing to pursue a full course of study, unless the student was previously authorized for a reduced course load pursuant to paragraph (f)(6)(iii) of this section.
(iii) To transfer schools, the alien must first notify the school he or she is attending (“transfer out school”) of the intent to transfer, then obtain a valid Form I-20, or successor form, from the school to which he or she intends to transfer (“transfer in school”). Upon notification by the student, the transfer out school will update the student's record in SEVIS as a “transfer out” and indicate the transfer in school and a release date. The release date will be the current semester or session completion date, or the date of expected transfer if earlier than the established academic cycle. The transfer out school will retain control over the student's record in SEVIS until the student completes the current term or reaches the release date, whichever is earlier. At the request of the student, the DSO of the current school may cancel the transfer request at any time prior to the release date. As of the release date specified by the current DSO, the transfer in school will be granted full access to the student's SEVIS record and then becomes responsible for that student. The transfer out school conveys authority and responsibility over that student to the transfer in school and will no longer have full SEVIS access to that student's record. As such, a transfer request may not be cancelled by the transfer out DSO after the release date has been reached. After the release date, the transfer in DSO must complete the transfer of the student's record in SEVIS and may issue a Form I-20. The student is then required to contact the DSO at the transfer in school within 15 days of the program start date listed on the Form I-20. Upon notification that the student is enrolled in classes, the DSO of the transfer in school must update SEVIS to reflect the student's registration and current address, thereby acknowledging that the student has completed the transfer process. In the remarks section of the student's Form I-20, the DSO must note that the transfer has been completed, including the date, and return the form to the student. The transfer is effected when the transfer-in school notifies SEVIS that the student has enrolled in classes in accordance with the 30 days required by 8 CFR 214.3(g)(3)(iii).
(iv) F-1 transfer students must report to the transfer in DSO no later than 15 days after their Program Start Date. No later than 30 days after the Initial Session Start Date as listed in SEVIS, the transfer-in DSO must:
(A) Register the student in SEVIS, if the student enrolls at the transfer in school; or
(B) Terminate the student's record in SEVIS, if the student does not enroll.
(v) If the new program to which the student transferred will not be completed within the authorized admission period established in paragraph (f)(5)(i) or (f)(20) of this section, the F-1 student must apply to USCIS for an extension of stay in the manner and on the form designated by USCIS, with the required fee and in accordance with form instructions, including any biometrics required by 8 CFR 103.16, together with a valid, properly endorsed Form I-20 indicating the new program end date.
(9) * * *
(i)
(10) * * *
(i)
(A) [Reserved]
(B)
(ii) * * *
(D)
(11) * * *
(i)
(A)
(B)
(
(C)
(
(
(18) * * *
(iii)
(20)
(i)
(ii)
(iii)
(iv)
(v)
(21)
(i)
(2)
(i) Demonstrate that the foreign media organization that the alien represents has a home office in a foreign country, and that the home office will continue to operate in the foreign country while they are in the United States; and
(ii) Provide a letter from the employing foreign media organization or, if self-employed or freelancing, an attestation from the alien, that verifies the employment, establishes that they are representatives of that media organization, and describes the remuneration and work to be performed.
(3)
(ii) Foreign nationals travelling on a passport issued by the People's Republic of China (with the exception of Macau Special Administrative Region passport holders) or Hong Kong Special Administrative Region passport holders: An alien who presents a passport from the People's Republic of China (with the exception of Macau Special Administrative Region passport holders) or an alien who is a Hong Kong Special Administrative Region passport holder, may be admitted until the activities or assignments consistent with the I classification are completed, not to exceed 90 days.
(4)
(5)
(ii) Notwithstanding paragraph (i)(5)(i) of this section and 8 CFR 274a.12(b)(20), an alien in I status who is described in paragraph (i)(3)(ii) of this
(6)
(7)
(j)
(1) * * *
(ii)
(B)
(C)
(iv)
(A)
(B)
(C)
(D)
(E)
(v)
(vi)
(vii)
(B) An Arrival-Departure Record (Form I-94 or successor form) is considered unexpired when combined with a USCIS receipt notice indicating receipt of a timely filed extension of stay application and a valid Form DS-2019, or successor form, indicating the duration of the program. An application is considered timely filed if the receipt notice for the application is on or before the date the admission period expires. Such extension may not exceed the earlier of 240 days, as provided in 8 CFR 274a.12(b)(20), or the date of denial of the alien's application for an extension of stay.
(C) An alien in J-2 status whose admission period has expired (as indicated on his or her Form I-94) may not engage in employment until USCIS approves his or her application for employment authorization.
(viii)
(ix)
(6)
(i)
(ii)
(iii)
(7)
8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
The additions read as follows:
(e)
(f)
8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.
(b) * * *
(6) * * *
(i) On-campus employment for not more than 20 hours per week when school is in session or full-time employment when school is not in session if the student intends and is eligible to register for the next term or semester. Part-time on-campus employment is authorized by the school. On-campus employment terminates on the alien's fixed date of admission as noted on his or her Form I-94. If applicable, the employment authorization of an alien described in 8 CFR 214.2(f)(5)(vii) may be automatically extended for up to 180 days, or until authorized by USCIS, whichever is earlier. In cases where the employment is authorized pursuant to 8 CFR 214.2(f)(5)(v), the validity of the employment authorization is provided by notice in the
(iii) Curricular practical training (internships, cooperative training programs, or work-study programs that are part of an established curriculum) after having been enrolled full-time in a SEVP-certified institution for one full academic year. Curricular practical training (part-time or full-time) is authorized by the Designated School Official on the student's Form I-20, or successor form. Curricular practical training terminates on the earlier of the employment end date indicated on Form I-20, or successor form, or on the alien's fixed date of admission as noted on his or her Form I-94. If applicable, an alien described in 8 CFR 214.2(f)(5)(vii) must not engage in curricular practical training until USCIS approves an alien's extension of stay request.
(v) The beneficiary of an H-1B petition and change of status request as described in 8 CFR 214.2(f)(5)(vi)(A) and whose status and employment authorization have been extended pursuant to 8 CFR 214.2(f)(5)(vi). These aliens are authorized to continue employment with the same employer beginning on the date of the expiration of the authorized period of admission until April 1 of the fiscal year for which H-1B status is requested. Such authorization will be subject to any conditions and limitations noted on the initial authorization. Such authorization, however, will automatically terminate upon the notification date in the denial decision if USCIS denies the H-1B petition or request for change of status. If USCIS approves the H-1B petition and associated change of status request, and the change of status will take effect prior to April 1 of the fiscal year for which H-1B status was requested, such authorization will automatically terminate on the date that the change of status takes effect.
(10)
(c) * * *
(3) * * *
(iii) Is seeking employment because of severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has an Employment Authorization Document, Form I-766 or successor form, based on severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C), and whose timely filed Application for Employment Authorization, Form I-765 or successor form, and Application to Extend/Change Nonimmigrant Status, Form I-539 or successor form, are pending, is authorized to engage in employment beginning on the expiration date of the Employment Authorization Document issued under paragraph (c)(3)(i)(B) of this section and ending on the date of USCIS' written decision on the current Application for Employment Authorization, Form I-765 or successor form, but not to exceed 180 days. For this same period, such Employment Authorization Document, Form I-766 or successor form, is automatically extended and is considered unexpired when combined with a Certificate of Eligibility for Nonimmigrant (F-1/M-1) Students, Form I-20 or successor form, endorsed by the Designated School Official recommending such an extension.
Wage and Hour Division, Department of Labor.
Notice of proposed rulemaking and request for comments.
The U.S. Department of Labor (the Department) is revising its interpretation of independent contractor status under the Fair Labor Standards Act (FLSA or Act) in order to promote certainty for stakeholders, reduce litigation, and encourage innovation in the economy.
Submit written comments on or before October 26, 2020.
You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA34, by either of the following methods:
Amy DeBisschop, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division (WHD), U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this Notice of Proposed Rulemaking (NPRM) may be obtained in alternative formats (Large Print, Braille, Audio Tape or Disc), upon request, by calling (202) 693-0675 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information or request materials in alternative formats.
Questions of interpretation and/or enforcement of the agency's regulations may be directed to the nearest WHD district office. Locate the nearest office by calling WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or logging onto WHD's website for a nationwide listing of WHD district and area offices at
The FLSA requires covered employers to pay their nonexempt employees at least the federal minimum wage for every hour worked and overtime pay for every hour worked over 40 in a workweek, and mandates that employers keep certain records regarding their employees. A worker who performs services for an individual or entity (“person” as defined in the Act) as an independent contractor, however, is not that person's employee under the Act. Thus, the FLSA does not require such person to pay an independent contractor either the minimum wage or overtime pay, nor does it require that person to keep records regarding that independent contractor. The Act does not define the term “independent contractor,” but it defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee,” 29 U.S.C. 203(d), “employee” as “any individual employed by an employer,”
Accordingly, in this Notice of Proposed Rulemaking (NPRM) the Department proposes to introduce a new part to Title 29 of the Code of Federal Regulations setting forth its interpretation of the FLSA as relevant to the question whether workers are “employees” or are independent contractors under the Act. The proposed regulations would adopt general interpretations to which courts and the Department have long adhered. For example, the proposed regulations would explain that independent contractors are workers who, as a matter of economic reality, are in business for themselves as opposed to being economically dependent on the potential employer for work. The proposed regulations would also explain that the inquiry into economic dependence is conducted through application of several factors, with no one factor being dispositive, and that actual practices are entitled to greater weight than what may be contractually or theoretically possible. The Department proposes to sharpen this inquiry into five distinct factors, instead of the five or more overlapping factors used by most courts and the Department previously. Moreover, consistent with the FLSA's text, its purpose, and the Department's experience administrating and enforcing it, the Department proposes that two of those factors—the nature and degree of the worker's control over the work and the worker's opportunity for profit or loss—should be more probative of the question of economic dependence or lack thereof, and thus are afforded greater weight in the analysis than any others.
This proposed rule would be the Department's sole and authoritative
This proposed rule is expected to be an Executive Order (E.O.) 13771 deregulatory action. Details on the estimated increased efficiency and cost savings of this proposed rule can be found in the preliminary regulatory impact analysis (PRIA) provided below in section VI.
Enacted in 1938, the FLSA requires, among other provisions, that covered employers pay their nonexempt employees at least the federal minimum wage for every hour worked and overtime pay for every hour worked over 40 in a workweek, and mandates that employers keep certain records regarding their employees.
The Supreme Court has held that the “suffer or permit” definition is broad on its face and is more inclusive than the common law standard for determining who is employed and thereby who is an employee. The common law utilizes traditional agency principles exclusively to examine the hiring party's right to control the manner and means by which the worker accomplishes his or her task.
However, the Act's “statutory definition[s] . . . have [their] limits.”
Accordingly, the FLSA does not require any “person” to pay an independent contractor the minimum wage or overtime pay under sections 6(a) and 7(a) or to keep records regarding that independent contractor under section 11(c).
In a series of cases from 1944 to 1947, the U.S. Supreme Court explored the limits of the employer-employee relationship under three different federal statutes: The FLSA, the National Labor Relations Act (NLRA), and the Social Security Act (SSA).
In the first of those cases,
On June 16, 1947, one week before Congress amended the NLRA to abrogate
Decided the same day as
In addition to facts relevant to the five
In November 1947, five months after
1. Degree of control of the individual;
2. Permanency of relation;
3. Integration of the individual's work in the business to which he renders service;
4. Skill required by the individual;
5. Investment by the individual in facilities for work; and
6. Opportunity of the individual for profit or loss.
However, in 1948, Congress promptly rejected this application of the proposed test. A committee report described the test as “`a dimensionless and amorphous abstraction' ” that would confer upon “ `the administrative agencies and the courts an unbridled license to say, at will, whether an individual is an employee or an independent contractor' ” for purposes of the SSA.
Congress abrogated the interpretations of the definitions of “employee” adopted in
Following
In the 1970s and 1980s, federal courts of appeals began to adopt a multifactor “economic reality” test based on
Drawing on the Supreme Court precedent discussed above, courts have recognized that the heart of the inquiry is whether “as a matter of economic reality” the workers are “
In
1. The degree of the alleged employer's right to control the manner in which the work is to be performed;
2. the alleged employee's opportunity for profit or loss depending on his managerial skill;
3. the alleged employee's investment in equipment or materials required for his task, or his employment of helpers;
4. whether the service rendered requires a special skill;
5. the degree of permanency of the working relationship; and
6. whether the service rendered is an integral part of the alleged employer's business.
A few courts of appeals have adopted noteworthy modifications to the economic reality factors as originally articulated in 1947 by the Supreme Court and by the Treasury Department.
Third, although the permanence factor under
Courts of appeals applying the multifactor economic reality test draw from the totality of circumstances, with no single factor being determinative by itself.
Since at least 1954, WHD has applied a multifactor analysis when considering whether a worker is an employee under the FLSA or is instead an independent contractor.
Over the years since, WHD has issued numerous opinion letters addressing whether a worker is an employee under the FLSA or an independent contractor. In those letters, WHD has generally relied on a multifactor analysis very similar to the six economic reality factors identified above; the circumstances of the whole activity are considered; the inquiry is broader than the common law control standard alone; and a worker is an employee if, as a matter of economic reality, he or she is economically dependent on the employer as opposed to in business for him- or herself.
WHD Fact Sheet #13, “Employment Relationship under the Fair Labor Standards Act (FLSA)” (Jul. 2008), similarly states that, when determining whether an employment relationship exists under the FLSA: The common law control is not the exclusive consideration; instead, “it is the total activity or situation which controls”; and “an employee, as distinguished from a person who is engaged in a business of his or her own, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves.”
WHD's most recent opinion letter addressing this issue, from 2019, generally applied the principles and factors similar to those described in the prior opinion letters and Fact Sheet #13, but not the “business organization” factor (which it said was “[e]ncompassed within” the other factors). The opinion letter addressed the FLSA classification of service providers who used a virtual marketplace company to be referred to end-market consumers to whom the services were actually provided. WHD concluded that the service providers appeared to be independent contractors and not employees of the virtual marketplace company.
As explained in greater detail below, these prior interpretations of independent contractor status, which themselves have evolved over time, are subject to the same limitations as the court opinions from the same period, and the Department believes that stakeholders would benefit from clarification. As such, the Department is proposing to promulgate a clearer and more consistent standard for evaluating whether a worker is an employee or independent contractor under the FLSA.
The Department has never promulgated a generally applicable regulation addressing the question of who is an independent contractor and, thus, not an employee under the Act. Instead, as described above, the Department has issued and revised subregulatory guidance since at least
The economic reality test has been criticized on several fronts. First, the test's overarching concept of “economic dependence” is under-developed and sometimes inconsistently applied, rendering it a source of confusion. Second, the test is indefinite and amorphous in that it makes all facts potentially relevant without providing any guidance on how to prioritize or balance different and sometimes competing considerations. Third, inefficiency and lack of structure in the test further stem from blurred boundaries between the factors. Fourth, these shortcomings have become more apparent over time as technology, economic conditions, and work relationships have evolved.
Courts and the Department agree that economic dependence is the touchstone of the economic reality test.
The Department and some courts have attempted to provide a measure of clarity by explaining, for example, that the proper inquiry is “`whether the workers are dependent on a particular business or organization
The lack of explanation of economic dependence has sometimes led to inconsistent approaches and results. For example, the Fifth Circuit held in 2009 that cable splicers hired as putative independent contractors by BellSouth to provide post-Hurricane Katrina repairs along the Gulf Coast were actually employees.
The Department agrees with
Without a consistent understanding of economic dependence, the multifactor balancing test is left without a meaningful anchor. As a result, the test's factors may become “an end in themselves” instead of, as they are intended to be, guideposts in the inquiry of economic dependence or lack thereof.
The
The
The 1948 Senate Report cautioned that economic dependence was potentially “dimensionless.” And although courts and the Department have since added some guidance, the concept may be inconsistently applied and under-analyzed. A more developed and dependable touchstone at the heart of the economic reality test is needed to guide the regulated community. Under this proposal, the Department would interpret and apply “economic dependence” consistent with the foregoing discussion.
Under the test, the Department and courts analyze the totality of circumstances making up the economic reality of the relationship to determine a worker's classification. But, as Judge Easterbrook warned in 1987, “ `reality' encompasses millions of facts, and unless we have a legal rule with which to sift the material from the immaterial, we might as well examine the facts through a kaleidoscope.”
Courts applying the economic reality test often analyze the factors individually and then reach an overall decision about a worker's classification without meaningful explanation of how they balanced the factors to reach the final decision.
At other times, courts have provided analysis as to the relative weight of the factors in the specific case before them. For example, some courts have noted where factors weigh “strongly” or “weakly.”
While identifying the most relevant factors in a specific case lends more clarity than a siloed analysis of each factor devoid of context, this approach still leaves the regulated community without generally applicable guidance as to what matters most and why.
The economic reality test's multifactor framework gives some structure to an otherwise roving inquiry by filtering the totality of circumstances into distinct relevant categories. But three factors—skill, permanence, and integral part—have been expanded by courts and the Department to incorporate aspects of economic reality that also fall under the control factor, creating overlapping coverage. There is additional overlap between the opportunity for profit/loss and investment factors, which “relate logically to one [an]other.”
Instead, courts and the Department have imported a control analysis into the skill factor.
Such overlap exacerbates confusion by blurring the lines between the economic reality factors. It also requires redundant analysis of the same facts under different factors, which may yield inconsistent and confusing results within the same case. For example, in
Next, the permanence factor originally concerned the continuity and duration of a working relationship. The factor has since been expanded by many courts and the Department to also consider the exclusivity of the relationship.
Third, the integral part factor used by some courts to analyze importance appears to be a proxy for control.
Finally, while
There often is redundancy where the opportunity for profit or loss and investment factors are considered separately.
In summary, significant overlaps between factors exacerbate confusion about how certain facts are analyzed and balanced. They also create inefficiency by requiring redundant review of the same facts by courts, redundant litigation over the same facts by parties, and redundant analysis of the same facts by business seeking to classify workers.
Certain shortcomings of the economic reality test have become more apparent in the modern economy. In particular, technological and social change—such as falling transaction costs, the transition from more of an industrial economy to more of a knowledge economy, and shorter job tenures—have revealed how analyzing the integral part factor through the lens of importance rather than integration, and giving undue weight to the investment and permanence factors, may send misleading signals regarding an individual's classification.
First, falling transaction costs in many sectors of the economy highlight the potential for errors resulting from analyzing the integral part factor through the lens of importance instead of integration. When the transaction costs of hiring are high, firms tend to hire employees rather than independent contractors for core tasks that must be performed on a routine basis.
Second, the transition from a more industrial economy to more of a knowledge-based economy has diminished the investment factor's ability to indicate economic dependence.
Finally, shorter job tenures among American workers have diminished the underlying rationale of the permanence factor.
In summary, the Department believes the current multifactor economic reality test suffers because the analytical lens through which all the factors are to be filtered remains inconsistent; there is no clear principle regarding how to balance the multiple factors; the lines between many of the factors are blurred; and these shortcomings have become more apparent in the modern economy. The result is legal uncertainty that obscures workers' and businesses' respective rights and obligations under the FLSA. Such uncertainty is especially acute when it comes to the growing number of more flexible and nimble work relationships. While such relationships benefit workers and businesses alike, they also lead to complex questions about a worker's classification under the FLSA, which are difficult to answer due in part to the shortcomings described above.
The Department is further concerned that continued legal uncertainty may deter innovative work arrangements by creating legal risks with respect to misclassifying workers as independent contractors instead of employees. Take, for example, the workers in WHD's April 2019 opinion letter who searched for job opportunities and negotiated for prices by “ `multi-app[ing]'—that is simultaneously run[ing a company]'s virtual platform alongside the platform of a competitor to compare virtual opportunities in real time and pick the best opportunity on a job-by-job basis.” WHD Opinion Letter FLSA2019-6 at 8. Multi-apping creates significant economic value by letting workers find the best paying opportunities, providing app companies with access to a larger workforce, and helping consumers
The Department is therefore issuing this NPRM to provide greater legal certainty and solicits comments on all these issues.
In light of the foregoing concerns, the Department is proposing to introduce a new part to Title 29 of the Code of Federal Regulations addressing whether particular workers are “employees” or independent contractors under the FLSA. In relevant part, and as discussed in greater detail below, the Department proposes:
• Introductory provisions at § 795.100 explaining the purpose and legal authority for the new part;
• a provision at § 795.105(a) explaining that independent contractors are not employees under the FLSA;
• a provision at § 795.105(b) discussing the “economic reality” test for distinguishing FLSA employees from independent contractors, clarifying that the concept of economic dependence turns on whether a worker is in business for him- or herself (independent contractor) or is economically dependent on a potential employer for work (employee);
• provisions at § 795.105(c) and (d) describing factors examined as part of the economic reality test, including two “core” factors—the nature and degree of the worker's control over the work and the worker's opportunity for profit or loss—which are afforded greater weight in the analysis, as well as three other factors that may serve as additional guideposts in the analysis;
• a provision at § 795.110 advising that the parties' actual practice is more relevant than what may be contractually or theoretically possible; and
• a severability provision at § 795.115.
These proposals would significantly clarify how the Department distinguishes between employees and independent contractors under the Act.
The Department welcomes comment on all aspects of its proposal.
The Department further proposes to adopt the above-described provisions as its sole and authoritative interpretation of independent contractor status under the FLSA. Accordingly, the Department would replace industry-specific interpretations of independent contractor status for sharecroppers or tenants at § 780.330(b) and certain forestry or logging operations at § 788.16(a) with cross-references to the interpretation set forth in this rule. These previous industry-specific interpretations of independent contractor status all rely on the same FLSA terms as the interpretation set forth in this propose rule.
The Department considered, but is not proposing at this time, similar revisions to 29 CFR 500.20(h)(4), which addresses independent contractor status under MSPA. The Department recognizes that MSPA adopts by reference the FLSA's definition of “employ,”
Proposed § 795.100 explains that the interpretations provided in part 795 will guide WHD's enforcement of the FLSA and are intended to be used by employers, businesses, the public sector, employees, workers, and courts to assess employment status classifications under the Act. Proposed § 795.100 further clarifies that, if proposed part 795 is adopted, employers may safely rely upon the interpretations provided in part 795 under section 10 of the Portal-to-Portal Act, unless and until any such interpretation “is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.” 29 U.S.C. 259.
Proposed § 795.105(a) explains that an independent contractor who renders services to a person is not an employee of that person under the FLSA. This is consistent with the Supreme Court's affirmation in
Proposed § 795.105(b) adopts the economic reality test to determine a worker's status as an employee or an independent contractor under the Act.
The Department's analysis begins with the text of the statute, following well-settled principles of statutory construction by “reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.”
However, all workers—employees and independent contractors alike—are economically dependent on others to some degree. Business owners are likewise economically dependent on the workers they hire, but this does not make them employees of their own workers. The economic reality test can be “ `a dimensionless and amorphous abstraction' ” unless its touchstone—economic dependence—is clarified.
Clarifying the test requires putting the question of economic dependence in the proper context. “Economic dependence is not conditioned reliance on an alleged employer for one's primary source of income, for the necessities of life.”
The above-described concept of economic dependence comports with the FLSA's definition of employ as “includ[ing] to suffer or permit to work.”
Some courts have relied on a worker's entrepreneurship with respect to one type of work to conclude that the worker was also in business for him- or herself in a second, unrelated type of work.
At bottom, the phrase “economic dependence” may mean many different things. But in the context of the economic reality test, “economic dependence” is best understood in terms of what it is not. The phrase excludes individuals who, as a matter of economic reality, are in business for themselves. Such individuals work for themselves rather than at the sufferance
The uncertainty and unpredictability of the traditional multifactor analysis of economic dependence has led some courts and commentators to call for alternative approaches. Judge Easterbrook's concurrence in
Proposed § 795.105(c) explains that certain nonexclusive economic reality factors guide the determination of whether an individual is, on one hand, economically dependent on a potential employer and therefore an employee or, on the other, in business for him- or herself and therefore an independent contractor. These factors are listed in § 795.105(d) and are based on economic reality factors currently used by the Department and most federal courts of appeals, with certain proposed clarifications.
First, the Department proposes to follow the Second Circuit's approach of analyzing the worker's investment as part of the opportunity for profit or loss factor. The combined factor would ask whether the worker has an opportunity to earn profits or incur losses based on his or her exercise of initiative or management of investments. Second, the Department proposes to clarify that the “skill required” factor originally articulated by the Supreme Court should be used, as opposed to the “skill and initiative” factor currently used in some circuits, because considering initiative as part of the skill factor creates unnecessary and confusing overlaps with the control and opportunity for profit or loss factors. Third, the Department proposes to further reduce overlap by analyzing the exclusivity of the relationship as a part of the control factor only, as opposed to both the control and permanence factors. Lastly, the Department proposes to reframe the “whether the service rendered is an integral part of the alleged employer's business” factor in accordance with the Supreme Court's original inquiry of whether the work is “part of an integrated unit of production.”
Proposed § 795.105(c) further improves the certainty and predictability of the test by focusing it on two core factors: (1) The nature and degree of the worker's control over the work; and (2) the worker's opportunity for profit or loss. These core factors, listed in proposed § 795.105(d)(1), are highly probative to the inquiry because the ability to control one's work and to earn profits and risk losses strikes at the core of what it means to be an entrepreneurial independent contractor, as opposed to a “wage earner” employee.
The following discussion addresses the five economic reality factors, including proposed modifications and clarifications made to each, and explains why the two core factors are entitled to greater weight than other factors.
The first economic reality factor (proposed § 795.105(d)(1)(i)) is “the nature and degree of the individual's control over the work.”
In contrast, the control factor would weigh in favor of classification as an employee to the extent that a potential employer, as opposed to the individual, exercises substantial control over key aspects of the work, including through requirements that the individual work exclusively for it during the working relationship or prohibiting the individual from working for others after that relationship ends. According to the proposed regulatory text, a potential employer may exercise substantial control, for example, where it explicitly requires an exclusive working relationship or where it imposes restrictions that effectively prevent an individual from working with others.
Proposed § 795.105(d)(1)(i) clarifies that requiring an individual to comply with specific legal obligations, satisfy health and safety standards, carry insurance, meet contractually agreed-upon deadlines or quality control standards, or satisfy other similar terms that are typical of contractual relationships between businesses (as opposed to employment relationships) does not constitute control that makes the individual more or less likely to be an employee under the Act. These requirements frequently apply to work performed by employees and independent contractors alike; as such, they are not probative as to whether a working relationship is one of employment or independent contracting. The case law supports this approach.
In addition, this aspect of the Department's proposal is supported by case law regarding FLSA joint employer status. For example, the Second Circuit agreed that control with respect to “contractual warranties of quality and time of delivery has no bearing on the joint employment inquiry” because such control is “perfectly consistent with a typical, legitimate subcontracting relationship.”
Moreover, control exercised by a potential joint employer over a contractor's employees to “ensure compliance with various safety and security regulations” has been found to be “qualitatively different” from control that indicates employer status.
The second economic reality factor (proposed § 795.105(d)(1)(ii)) is “the individual's opportunity for profit or loss.” In analyzing this factor, courts generally consider whether such opportunities are based on personal initiative, managerial skill, or business acumen.
As explained in the need for rulemaking discussion in Section III, treating “opportunity for profit or loss” and “investment” as separate factors results in duplicative analysis of the same facts. For example, in
The Second Circuit avoids duplication and potential confusion by analyzing investment and opportunity for profit or loss together. Under this approach, the worker's meaningful capital investments may evince opportunity for profit or loss: “[e]conomic investment, by definition, creates the opportunity for loss, [and] investors take such a risk with an eye to profit.”
The Second Circuit's approach of combining opportunity for profit or loss and investment is also more faithful to the Supreme Court's original analysis in
Not all courts follow the Second Circuit and the Supreme Court's approach of analyzing investment through the lens of profit and loss. Some, for instance, “use[ ] a side-by-side comparison method” that directly “compare[s] `each worker's
But such a “side-by-side comparison method” does not illuminate the ultimate question of economic dependence.
The Department is therefore proposing to adopt an approach similar to that of the Second Circuit, which analyzes the worker's investment as part of the opportunity for profit or loss factor. The combined factor would weigh towards the individual being classified as an independent contractor if he or she has an opportunity for profit or loss based on either or both: (1) The exercise of personal initiative, including managerial skill or business acumen; and/or (2) the management of investments in, or capital expenditure on, for example, helpers, equipment, or material. While the effects of the individual's exercise of initiative and management of investment are both considered under this factor, for reasons explained above, the individual would not need to have an opportunity for profit or loss based on both for this factor to weigh towards the individual being an independent contractor. This factor would weigh towards the individual being an employee to the extent the individual is unable to affect his or her earnings through initiative or investment or is only able to do so by working more hours or more efficiently.
The Department also considered keeping opportunity for profit or loss and investment as separate factors in its proposal, but believes that approach may be needlessly duplicative and confusing for reasons stated above. If investment were kept as a separate factor, the Department would emphasize that the factor should not reconsider opportunity for profit or loss. Instead, it would focus on whether a worker's investment (or lack thereof) in the equipment, materials, technology, etc. necessary to perform the worker's work
“The amount of skill required for the work” is an economic reality factor under proposed § 795.105(d)(2)(i). The Supreme Court articulated the “skill required” factor in
As explained in the need for rulemaking discussion in Section III, importing aspects of the control factor into the skill factor has diluted the consideration of actual skill to the point of near irrelevance. In many cases, analysis of control rather than skill drives whether the skill factor favors independent contractor or employee status.
The Department therefore proposes to clarify that this factor should focus on the “amount of skill required,” as originally articulated by the Supreme Court in
The Department believes that this approach would sharpen the distinction between the economic reality factors by focusing on skill, as opposed to aspects of control. The worker's ability to exercise initiative would remain more important than the presence of skill because it would be analyzed under the control factor, a core factor that would be given more weight than the skill factor. And the effect of the worker's initiative would be analyzed under the opportunity for profit or loss factor, another core factor that would be given more weight. The Department considered keeping initiative as an aspect of the skill factor, but believes that such an approach may be needlessly duplicative and confusing for the reasons stated above. The Department welcomes comment on this alternative approach.
“The degree of permanence of the working relationship between the individual and the potential employer” is an economic reality factor under proposed § 795.105(d)(2)(ii). Courts and the Department routinely consider this factor when applying the economic reality analysis under the FLSA to determine employee or independent contractor status.
Such duplicative analysis of exclusivity under the permanence factor is not supported by the Supreme Court's original articulation of that factor in
Because the worker's ability to work for others is already analyzed as part of the control factor, proposed § 795.105(d)(2)(ii) articulates the permanence factor without referencing the exclusivity of the relationship between the worker and potential employer. This proposal does not require any changes to the articulation of this factor because the current articulation,
The Department also considered keeping exclusivity as part of this factor but changing the articulation to “permanence and exclusivity of the working relationship” to be more accurate. However, the Department believes that such an approach may be needlessly duplicative and confusing for the reasons stated above. The Department welcomes comments on this alternative approach.
The Department and courts outside of the Fifth Circuit have typically articulated the sixth factor of the economic reality test as “the extent to which services rendered are an integral part of the [potential employer's] business.” WHD Fact Sheet #13. Under this articulation, the “integral part” factor considers “the importance of the services rendered to the company's business.”
The Department is concerned that this focus on importance or centrality departs from the Supreme Court's original articulation of the economic reality test, has limited probative value regarding the ultimate question of economic dependence, and may be misleading in some instances. As such, proposed § 795.105(d)(2)(iii) would clarify that the “integral part” factor should instead consider “whether the work is part of an integrated unit of production,” which aligns with the Supreme Court's analysis in
The word “integral” can mean either very important or integrated.
Focusing on whether an individual's work is important to a potential employer has questionable probative value regarding the issue of economic dependence, and may even be counterproductive in some cases. Judge Easterbrook's
Other courts have explained that “it is presumed that, with respect to vital or integral parts of the business, the employer will prefer to engage an employee rather than an independent contractor. This is so because the employer retains control over the employee and can compel attendan[ce] at work on a consistent basis.”
Focusing on the importance of work can sometimes send misleading signals regarding economic dependence. For instance, some courts have explained that “easily replaceable” workers are less integral to a business, and therefore, are less dependent on that business.
Finally, analyzing the importance of work under the “integral part” factor may send misleading signals due to the increasing difficulty of defining important or core functions of a growing number of intermediary companies whose main activity is “selling reductions in transaction costs.”
Analyzing the importance of services to a potential employer often first requires characterizing the potential employer's business as either an intermediary or a direct provider of services. But that characterization, in turn, requires answering the economic dependence question. If a potential employer is an intermediary company that merely connects service providers with customers, those service providers would have distinct businesses of their own. WHD Opinion Letter FLSA2019-6 at 10. As such, they would not be a part, let alone an essential or important part, of the potential employer's business. Analyzing the importance of services to evaluate economic dependence thus becomes a circular exercise. The factor considers whether workers' services are an important part of the potential employer's business to answer the ultimate inquiry of whether workers provide services as part of their own distinct businesses.
For these reasons, proposed § 795.105(d)(2)(iii) would rearticulate the “integral part” factor in accordance with the Supreme Court's original inquiry in
Proposed § 795.105(d)(2)(iii) thus focuses the “integrated unit” factor on whether an individual works in circumstances analogous to a production line. This factor weighs in favor of employee status where a worker is a component of a potential employer's integrated production process, whether for goods or services. The overall production process need not be a physical assembly line, but it must be an integrated process that requires the coordinated function of interdependent subparts working towards a specific unified purpose.
Conversely, if the individual's work is not integrated into the potential employer's production process, the factor would favor classification as an independent contractor. This includes where an individual service provider is able to perform his or her duties without depending on the potential employer's production process.
The Department considered removing the “integral part” factor instead of rearticulating it as the above-described “integrated unit” factor, in part, out of concern that the “integrated unit” factor may have limited applicability in the modern economy. However, the Department believes that the “integrated unit” factor described above would be applicable in sufficient cases to warrant its listing as an economic reality factor. The Department also welcomes comments on this alternative approach to remove this factor and instead focus the economic reality test on four factors.
Proposed § 795.105(c) explains that the two core factors—
The Department proposes a focus on the two core factors in light of the sharpened articulation of economic dependence in proposed § 795.105(b). The Supreme Court cautioned that control is not the sole consideration,
While the Supreme Court established a multifactor approach to the question of employee versus independent contractor status, it did not require all factors to be treated equally. To the contrary, focusing on the control and opportunity for profit or loss factors is supported by the reasoning in
In
Focusing on control and opportunity for profit or loss is further supported by the results of federal courts of appeals cases weighing the economic reality factors since 1975. In these cases, whenever the court found (or affirmed a district court finding) that the potential employer predominantly controlled the work, that court concluded that the worker is an employee.
The few occasions where an appellate court's ruling on a worker's classification was contrary to what the control factor indicated were cases in which the other core factor—opportunity for profit or loss—pointed in the opposite direction. For example, in
This trend is also true, indeed even more so, for the opportunity for profit or loss factor. Since 1975, virtually every time a circuit court of appeals has found (or affirmed a district court finding) that the potential employer predominantly determined the opportunities for profit or loss, the court has concluded that the worker was an employee.
In summary, each of the two core factors is, by itself, highly probative of a worker's economic dependence. Together,
The Department's proposal is consistent with case law and adopting a more focused approach. Many courts have analyzed all six factors (or five depending on the circuit) on a factor-by-factor basis, even where some factors were recognized as having limited relevance in a particular context.
In
The Second Circuit again focused on control and opportunity for profit or loss in
In summary, control and opportunity for profit or loss drive at the heart of what it means to be an independent contractor who is in business for oneself and are the most relevant factors in virtually every case. As such, the Department believes focusing on these two as the core factors would add much needed clarity and efficiency to the economic reality test. The Department welcomes comments on this approach, which departs from courts' and Department's previous practice of not expressly identifying which types of facts or factors are the most important.
In contrast to the two core factors, the other factors listed in § 795.105(d)(2) relating to skill, permanence, and integration are not always as probative to an inquiry into whether a worker is, as a matter of economic reality, in business for him- or herself or economically dependent on someone else for work. Rather, their relevance varies depending on the circumstances. Moreover, relevant aspects of the skill and permanence factors under the current test—
Thus, the skill factor is over-inclusive to the extent it includes skills that may merely enable a worker to find employment, but do not indicate the worker is in business for him- or herself. Recognizing this over-inclusiveness issue, some courts have explained that “the use of special skills is not itself indicative of independent contractor status, especially if the workers do not use those skills in any independent way.”
The skill factor is also under-inclusive because it excludes certain managerial and business skills that are highly probative as to economic dependence.
The Department's proposal to deemphasize the skill factor as compared to the core factors is supported by the statutory text and case law. Employers can “suffer and permit” both skilled and non-skilled individuals to perform work as employees, 29 U.S.C. 203(g), and federal courts of appeals have routinely held that the presence of specialized skill does not mean a worker is an independent contractor if the worker lacks control over the work, an opportunity for profit or loss, or both.
The Department believes that the remaining considerations that are part of this factor—duration, continuity, and regularity—are relevant to an economic reality analysis, though less so than the core factors. Specifically, the length of relationship between a worker and a potential employer has less relevance to the issue of economic dependence than the core factors. To be sure, many independent contractors who are in business for themselves lack a long-term relationship with a single client because they work on “a project-by-project basis.”
Nor does the absence of a long-term working relationship preclude a finding of employee status. Workers who move from job to job or work for short periods of time can still be economically dependent on an employer. As the Second Circuit observed in
In sum, the two core factors drive at the heart of the economic dependence question because they bear a causal relationship with the ultimate inquiry. A worker's control over the work and the opportunity for profit or loss are generally what transforms him or her from being economically dependent on an employer as a matter of economic reality into being in business for him- or herself. This is not so with the other factors. Possessing a specialized skill, having a temporary working relationship, and not being part of an integrated unit of production are certainly characteristics shared by many workers who are in business for themselves. But they are often indicators rather than essential elements of being in business for oneself.
Accordingly, the Department proposes to focus the economic reality test on the two core factors. Instead of balancing six or so unweighted and overlapping factors, a worker's classification as an employee or independent contractor can be largely determined in many cases by two simple questions: (1) Does the worker exercise substantial control over the key aspects of the work; and (2) does the worker have an opportunity for profit or a risk of loss based on initiative or investment? If the answer to both is “yes,” the worker is most likely an independent contractor. And if the answer to both is “no,” the worker is most likely an employee. Other factors may also be probative as part of the circumstances of the whole activity, but are less important. They are especially relevant when the two core factors do not point in the same direction or do not point strongly in either direction. The Department believes this proposed approach would improve the clarity and predictability of the economic reality test.
In the course of formulating this NPRM, the Department also considered a more structured approach to sharpening the economic reality test under the FLSA. In particular, the Department considered creating a presumption of employee or independent contractor status where both core factors indicate the same status. Such a presumption would be rebuttable only by a showing that other factors weighed strongly in favor of the other outcome. The Department is concerned that this approach would be confusing or burdensome on courts and the regulated community. Accordingly, the Department is not proposing a presumption-based approach at this time, but is nonetheless interested in
Proposed § 795.110 states that the actual practice of the parties involved—both of the worker (or workers) at issue and of the potential employer—is more relevant than what may be contractually or theoretically possible. This principle is derived from the Supreme Court's holding that “ `economic reality' rather than `technical concepts' is to be the test of employment” under the FLSA.
As the examples in proposed § 795.110 illustrate, the primacy of the parties' actual practice applies to every potentially relevant factor, and it can weigh in favor of either an employee or independent contractor relationship. In some cases, the actual practice of the parties involved may suggest that the worker or workers are employees.
Importantly, proposed § 795.110 does not suggest that what is contractually or theoretically possible in a work arrangement is irrelevant. Contractual and theoretical possibilities are also part of the economic reality of the parties' relationship, and excluding them outright would not be consistent with the Supreme Court's instruction in
Finally, the Department proposes to include a severability provision in part 795 so that, if one or more of the provisions of part 795 is held invalid or stayed pending further agency action, the remaining provisions would remain effective and operative. The Department proposes to add this provision as § 795.115.
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
Under E.O. 12866, OMB's Office of Information and Regulatory Affairs determines whether a regulatory action is significant and, therefore, subject to the requirements of the Executive Order and OMB review.
Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; that it is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and that, in choosing among alternative regulatory approaches, the agency has selected the approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits are difficult to quantify and provides that, when appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or
The Department estimates there were 10.6 million workers who worked at any given time as independent contractors as their primary jobs in the United States in 2017 (6.9 percent of all workers), the most recent year of data available. Including independent contracting on secondary jobs results in an estimate of 18.9 million independent contractors (12.3 percent of all workers). The Department discusses other studies providing estimates of the total number of independent contractors, ranging from 6.1 percent to 14.1 percent of workers (see Table 3 in VI.C.2). Due to uncertainties regarding magnitude and other factors, the Department has not quantified the potential change to the aggregate number of independent contractors that may occur if this proposed rule is finalized. Furthermore, the Department`s analysis relies on data collected prior to 2020, which reflects the state of the economy prior to the COVID-19 pandemic. The Department acknowledges that data on independent contractors could look different following the economic effects of the pandemic, but does not yet have information to determine how the number of independent contractors could change nor whether these changes would be lasting or a near term market distortion. The Department invites comments from stakeholders on the data used in this analysis and on how the universe of independent contractors might change as a result of this proposed rule. Specifically, the Department requests data and comment on the possible impacts resulting from the COVID-19 pandemic as it relates to the composition of the labor market, the share and scope of independent contractors in the workforce, and any associated wage effects.
The Department estimated regulatory familiarization costs to be $370.9 million in the first year. The Department estimated cost savings due to increased clarity to be $447.2 million per year, and cost savings due to reduced litigation to be $33.6 million per year. This results in a 10-year annualized net cost savings of $374.8 million using a 3 percent discount rate and $369.0 million using a 7 percent discount rate.
The Department estimated the number of independent contractors to provide a sense of the current size of this population. There are a variety of estimates of the number of independent contractors and these span a wide range based on methodologies and how the population is defined. The Department believes that the Current Population Survey (CPS) Contingent Worker Supplement (CWS) offers an appropriate lower bound for the number of independent contractors; however, there are potential biases in these data that will be noted. Additionally, estimates from other sources will be presented to demonstrate the potential range.
The CPS is conducted by the U.S. Census Bureau and published monthly by the Bureau of Labor Statistics (BLS). The sample includes approximately 60,000 households and is nationally representative. Periodically since 1995, and most recently in 2017, the CPS has included a supplement to the May
The BLS's estimate of independent contractors includes “[w]orkers who are identified as independent contractors, independent consultants, or freelance workers, regardless of whether they are self-employed or wage and salary workers.” BLS asks two questions to identify independent contractors:
• Workers reporting that they are self-employed are asked: “Are you self-employed as an independent contractor, independent consultant, freelance worker, or something else (such as a shop or restaurant owner)?” (9.0 million independent contractors). We refer to these workers as “self-employed independent contractors” in the remainder of the analysis.
• Workers reporting that they are wage and salary workers are asked: “Last week, were you working as an independent contractor, an independent consultant, or a freelance worker? That is, someone who obtains customers on their own to provide a product or service.” (1.6 million independent contractors). We refer to these workers as “other independent contractors” in the remainder of the analysis.
It is important to note that independent contractors are identified in the CWS in the context of the respondent's “main” job (
The CWS's large sample size results in small sampling error. However, the questionnaire's design may result in some non-sampling error. For example, one potential source of bias is that the CWS only considers independent contractors during a single point in time—the survey week (generally the week prior to the interview).
These numbers will thus underestimate the prevalence of independent contracting over a longer timeframe, which may better capture the size of the population.
The CWS also uses proxy responses, which may underestimate the number of independent contractors. The RAND American Life Panel (ALP) survey conducted a supplement in 2015 to mimic the CWS questionnaire, but used self-responses only. The results of the survey were summarized by Katz and Krueger (2018).
Another potential source of bias in the CWS is that some respondents may not self-identify as an independent contractor, and others who self-identify may be misclassified. There are reasons to believe that some workers, who are legally considered independent contractors, would not self-identify as such. For example, if the worker has only one employer/client, or did not actively pursue the employer/client, then they may not agree that they “[obtain] customers on their own to provide a product or service.” Additionally, individuals who do only informal work may not view themselves as independent contractors.
Because the CWS estimate represents only the number of workers who worked as independent contractors on their primary job during the survey reference week, the Department applied the research literature and adjusted this measure to include workers who are independent contractors in a secondary job or who were excluded from the CWS estimate due to other factors. As noted above, integrating the estimated proportions of workers who are independent contractors on secondary or otherwise excluded jobs yields from other surveys produces estimates of 15.6 million and 22.1 million. The Department used the average of these two estimates, 18.9 million, as the estimated total number of workers working as independent contractors in any job at a given time. Given the prevalence of independent contractors who work sporadically and earn minimal income, adjusting the estimate according to these sources captures some of this population. It is likely that this figure is still an underestimate of the true independent contractor pool. The Department requests comments and data on the assumptions made to calculate this estimate.
To further consider the range of estimates available, the Department conducted a literature review, the findings of which are presented in Table 3. Other studies were also considered but are excluded from this table because the study populations were broader than just independent contractors or limited to one state.
Jackson et al. (2017)
This section presents demographic information of independent contractors using the CWS, which, as stated above, only measures those who say that their independent contractor job is their primary job and that they worked at the independent contractor job in the survey's reference week. According to the CWS, these primary independent contractors are most prevalent in the construction and professional and business services industries. These two industries employ 44 percent of primary independent contractors. Independent contractors tend to be older and predominately male (65 percent). Millennials have a significantly lower prevalence of primary independent contracting than older generations: 3.6 percent for Millennials compared to 6.0 percent for Generation X and 8.8 percent for Baby Boomers and Matures.
The substantive effect of the rule is not intended to favor independent contractor or employee classification relative to the status quo. However, the Department assumes in this RIA that the increased legal certainty associated with this proposed rule could lead to an increase in the number of independent contractor arrangements. The Department has not attempted to estimate the magnitude of this change, primarily because there are not objective tools for quantifying the clarity, simplification, and enhanced probative value of the Department's proposals for sharpening and focusing the economic reality test.
Assuming that independent contractor arrangements increase following this proposed rule, it is unclear whether this would occur as a result of employees being subsequently classified as independent contractors or as a result of the hiring of new workers as independent contractors. This will have implications for transfers. If current employees change classifications, then there may be transfers. Employers could only change the classification of current employees if those workers had previously been misclassified or by changing the working conditions such that the relationship becomes a true independent contractor relationship, assuming doing so is consistent with any applicable employment contracts, collective bargaining agreement, or other applicable laws. Lim et al. (2019) found “little evidence that firms are increasingly reclassifying existing employee relationships as [independent contractor] relationships,” however, they found that “firms are hiring more new workers as [independent contractors] rather than as employees.”
By decreasing uncertainty and thus potentially opening new opportunities for firms, companies may hire independent contractors who they otherwise would not have hired. In this case, there may be a decrease in unemployment and/or an increase in the size of the labor force. In a study of respondents from both Europe and the U.S., McKinsey Global Institute found that 15 percent of those not working are interested in becoming an independent contractor for their primary job.
The Department invites comment on its assumption that use of independent contractors will increase if the proposed rule is finalized. The Department also welcomes comments and data from companies looking to increase their use of independent contractors, specifically on whether employees' classifications would change to independent contractor status, consistent with this proposed rule and their other contractual and legal obligations, or whether they would instead hire new workers as independent contractors.
Although this rule only affects workers' independent contractor status under the FLSA, the Department assumes in this analysis that employers are likely to keep the status of the worker the same across all benefits and requirements.
According to the CWS's relatively narrow definition of independent contractor:
• 79.4 percent of self-employed independent contractors have health insurance. Most of these workers either purchased insurance on their own (31.5 percent) or have access through their spouse (28.6 percent).
• 80.7 percent of other independent contractors have health insurance. There are three main ways these workers receive health insurance: Through their spouse (25.1 percent), through an employer (24.2), or on their own (20.1 percent).
• 88.3 percent of employees have health insurance. Most of these workers receive health insurance through their work (64.1 percent). Furthermore, according to the ECEC, employers pay on average 12 percent of an employee's base compensation in health insurance premiums.
From these data, it is unclear exactly how health insurance coverage would change if the number of independent contractors increased, but the data suggest that independent contractors, on average, may be less likely to have health insurance coverage. That said, employment is not a guarantee of health insurance, nor do independent contractors generally lack health insurance.
A major source of retirement savings is employer sponsored retirement accounts. According to the CWS, 55.5 percent of employees have a retirement account with their current employer; in addition, the ECEC found that employers pay 5.3 percent of employees' total compensation in retirement benefits on average ($1.96/$37.03). If a worker shifts from employee to independent contractor status, that worker may no longer receive employer-provided retirement benefits, but may choose alternate investment options. As with health insurance, it is not clear whether retirement savings for such a worker would increase or decrease, but such a worker would need to take a more active role in saving for retirement vis-à-vis an employee with an employer-sponsored retirement plan.
Payroll tax liability is generally divided between the employer and the employee in the United States. Most economists believe that the “incidence” of the payroll tax, regardless of liability, falls on the employee.
• Social Security tax: The 6.2 percent employer component (half of the 12.4 percent total).
• Medicare tax: The 1.45 percent employer component (half of the 2.9 percent total).
In sum, independent contractors are legally responsible for an additional 7.65 percent of their earnings in FICA taxes vis-à-vis an employee. However, any tax-related transfers from employers to workers are likely to be offset by higher wages employers pay to ensure workers' take-home pay remains the same.
Companies also cover unemployment insurance and workers' compensation taxes for their employees. Independent contractors may choose to pay for comparable insurance protection offered in the private market, but are not obligated to. The resulting regulatory effect (experienced as savings, either by companies or employees, depending on who ultimately bears the cost of the tax) combines societal cost savings (the lessened administrative cost of incrementally lower participation in unemployment insurance and workers' compensation programs) and transfers (from individuals whose unemployment insurance or workers' compensation payments decline, to entities paying less in taxes). Independent contractors may recoup some or all of the employer portion of these taxes and insurance premiums in the form of increased wages. This rule could decrease employers' tax liabilities and increase independent contractors' take-home compensation. However, there are costs to independent contractors if they become unemployed or injured or ill on the job because they no longer are protected, unless they purchase their own private insurance. The Department did not attempt to quantify the cost of changes in coverage or whether the net effect is a benefit or cost to the worker.
Although the minimum wage and overtime pay requirements of the FLSA would no longer apply to workers who shift from employee status to independent contractor status, the Department anticipates an increase in labor force activity. That said, the Department does not attempt to quantify the magnitude of any increase in earnings as a result of increased labor force activity.
If currently unemployed workers or individuals who are out of the labor market become independent contractors due to this rule, their earnings will increase as they currently have no employment-related earnings other than possibly unemployment benefits. The impact on earnings is more ambiguous if employees' classifications change to independent contractors. In theory, companies would likely have to pay more per hour to independent contractors than to employees because independent contractors generally do not receive employer-provided benefits and have higher tax liabilities. Data show an hourly wage premium for independent contractors when comparing unconditional means. But as the analysis below shows, when controlling for certain differences in worker characteristics, this expected wage premium may not always be observable at a statistically significant level. It should be noted, however, that these estimates do not attempt to incorporate the value of flexibility and satisfaction that independent contractors cite as key factors in their preference of independent contracting arrangements over traditional employment.
Comparing the average earnings, hourly wages, and hours of current employees and independent contractors may provide some indication of the impact on wages of a worker who transitions from an employee to independent contractor classification. A regression analysis that controls for observable differences between independent contractors and employees may help isolate the impact on earning, hourly wages, and usual hours of being an independent contractor. Katz and Krueger (2018)
The Department combined the CWS data on usual earnings per week and hours worked per week to estimate hourly wage rates.
Conceptually, the Department expects that independent contractors would earn more per hour than traditional employees in base compensation as an offset to employer-provided benefits and increases in tax liabilities. Katz and Krueger's analysis of the 2015 RAND ALP data appears to support this prediction.
One potential reason for the variance among the estimates for independent contractor wages could be error in the measurement of independent contractor status and earnings, a factor that is present throughout all of the analyses in this area. As a recent analysis concluded, “different data sources provide quite different answers to the simple question of what is the level and trend of self-employment in the U.S. economy,” which suggest substantial measurement error in at least some data sources.
Another potential bias in the Department's results could be due to the exclusion of relevant explanatory variables from the model specification, including the omission of observable variables that correlate with hourly earnings. For example, the Department's analysis of 2017 CWS data used 22 occupation dummy variables but did not control for a worker's job position within any of the occupations (although it did control for “potential experience”). However, as the Department's Guidance indicates, a statistical comparison of earnings between workers generally must control for “job level or grade” in addition to experience to ensure the comparison is for workers in similar jobs.
The existence of unobservable differences between independent contractors and employees that are correlated with earnings, such as productivity, skill, and preference for flexibility also bias comparison of hourly earnings. For example, independent contractors may be on average more willing than employees to trade monetary compensation for increased workplace flexibility, which would obscure the observability of an earnings premium for independent contractors. It is possible that independent contractors' hourly earnings premium may be best observed at the margin, such as comparing a worker's behavior when deciding between two similar positions, one as an employee and one as an independent contractor.
Labor market frictions and personal preferences facing both employers and workers may further prevent a clear detection of a full picture of any earnings premium. Employees that transition to independent contractor classification may prefer monetary compensation over employer-provided benefits (
An additional consideration is that minimum wage and overtime pay would no longer apply if workers shift from employee status to independent contractor status. The 2017 CWS data
The Department estimated that regulatory familiarization costs will total $370.9 million in Year 1.
Regulatory familiarization costs represent direct costs to businesses and current independent contractors associated with reviewing the new regulation. To estimate the total regulatory familiarization costs, the Department used (1) the number of establishments, government entities, and current independent contractors; (2) the wage rates for the employees and for the independent contractors reviewing the rule; and (3) the number of hours that it estimates employers and independent contractors will spend reviewing the rule. This section presents the calculation for establishments first and then the calculation for independent contractors.
It is not clear whether regulatory familiarization costs are a function of the number of establishments or the number of firms.
There may be differences in familiarization cost by the size of establishments; however, the analysis does not compute different costs for establishments of different sizes. Furthermore, the analysis does not revise down for states where the laws may more stringently limit who qualifies as an independent contractor (such as California). To estimate the number of establishments incurring regulatory familiarization costs, the Department began by using the Statistics of U.S. Businesses (SUSB) to define the total pool of establishments in the United States.
The applicable universe used by the Department for assessing familiarization costs of this proposed rule is all establishments that engage independent contractors, which is a subset of the universe of all establishments. The Department estimates the impact of regulatory familiarization based upon assessment of the regulated universe. For the Department's recent Joint Employer Status under the Fair Labor Standards Act, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, and Regular Rate Under the Fair Labor Standards Act rulemakings, it estimated that the regulated universe comprised all establishments because the rules were broadly applicable to every employer. For those rules, the Department estimated familiarization costs by assuming each establishment would review each rule. Because the proposed rule affects only some establishments,
In 2019, Lim et al. used extensive IRS data to model the independent contractor market, finding that 34.7 percent of firms have any independent contractors.
OMB Circular A-4 instructs that regulatory impact analyses establish a baseline, usually a “no action” baseline, to represent what the world is expected to be like in the absence of the proposed rule.
The Department assumes that a Compensation, Benefits, and Job Analysis Specialist (SOC 13-1141) (or a staff member in a similar position) will review the rule.
For regulatory familiarization costs for independent contractors, the Department used its estimate of 18.9 million independent contractors and assumed each independent contractor will spend 15 minutes to review the regulation. The time estimates used for independent contractors is estimated to be smaller than for establishments. This difference is in part because the Department believes independent contractors are likely to rely on summaries of the key elements of the rule change published by the Department, worker advocacy groups, media outlets, and accountancy and consultancy firms, as has occurred with other rulemakings. Furthermore, the repercussions for independent contractors are smaller (
The estimate of 18.9 million independent contractors captures the universe of workers over a one-year period. Using this figure for the overall cost estimate results in an artificially high value because it includes workers who would have otherwise been included in the baseline case without the proposed rule and thus spent time familiarizing themselves with the legal framework in the matter of course, without incurring a supplementary cost. Furthermore, the Department believes that it is probable that independent contractors would review the regulation only when they had reason to believe that the benefits would outweigh the costs incurred in familiarizing themselves with the rule, and since this analysis does not attempt to calculate those economic benefits it is possible that the costs presented in this section are overestimated.
The total one-time regulatory familiarization costs for independent contractors are estimated to be $218.6 million. The total one-time regulatory familiarization costs for establishments and independent contractors are estimated to be $370.9 million.
Regulatory familiarization costs in future years are assumed to be de minimis. Similar to the baseline case for employers, independent contractors would continue to familiarize themselves with the applicable legal framework in the absence of the rule, so this proposed rulemaking—anticipated to provide more clarity—is not expected to impose costs after the first year.
There may be other costs associated with this NPRM that have not been quantified due to uncertainties or data limitations. The Department invites public comments and data to address this issue.
This NPRM is expected to result in cost savings to firms and workers. The Department has quantified only the cost savings from increased clarity and reduced litigation. The other areas of anticipated cost savings were not estimated due to uncertainties or data limitations. The Department welcomes data and comments on the potential cost savings and benefits to society.
This proposed rule is expected to increase clarity concerning whether a worker is classified as an employee or as an independent contractor under the FLSA. This would reduce the burden faced by employers, potential employers, and workers to understand the distinction and how the working relationship should be classified. It is unclear exactly how much time would be saved, but the Department provides some quantitative estimates to provide a sense of the magnitude. To quantify this benefit, the following variables need to be defined and estimated: (1) The number of new employer-worker relationships being assessed to determine the appropriate classification; (2) the amount of time saved per assessment; and (3) an average wage rate for the time spent. The Department estimates this will result in a $447.2 million in savings annually. The Department requests comments on these assumptions and calculations.
The Department began with its estimate of the number of current independent contractors as the basis for estimating the number of new relationships. As discussed in section VI.C, according to the CWS, there are 10.6 million workers who are independent contractors on their primary job. Adjusting this figure to account for independent contractors on their secondary job results in 18.9 million independent contractors. According to Lim et al. (2019), in 2016 the average number of 1099-MISC forms issued per independent contractor was 1.43. Therefore, the Department assumes the average independent contractor has 1.43 jobs per year.
The independent contracting sector is characterized by churn. In their annual
A subset of new independent contractor relationships may have time savings associated with the proposed rule. Such a reduction is difficult to quantify because it is unclear how many establishments and independent contractors will realize benefits of increased clarity. It is also possible that the increased clarity of the classification process will lead to compound effects that generate far greater benefits over time. Nonetheless, because it is possible that only a subset of contracts would receive the cost savings associated with increased clarity, the Department has reduced the number of contracts in the estimate by 25 percent. This results in 20.2 million contracts with cost savings to both the employer and the independent contractor.
Per each new contract with time savings, the Department has assumed that employers would save 20 minutes of time and independent contractors would save 5 minutes.
Using these numbers, the Department estimates that employers will save $369.0 million annually and independent contractors will save $78.1 million annually due to increased clarity (Table 4). In sum, this is estimated to be a $447.2 million savings. The Department assumes the parameters used in this cost savings estimate will remain constant over time. This assumes no growth in independent contracting, no real wage growth, and no subsequent innovation in the employer-worker relationship. These assumptions, while highly unlikely to be true in reality, facilitate simplicity of calculation. The annualized savings over both a 10-year horizon and in perpetuity, with both the 3 percent and 7 percent discount rates is $447.2 million.
In addition to increased clarity when assessing whether each relationship qualifies as an independent contractor or employment relationship, there may also be upfront time savings for new entrants who must familiarize themselves with the definition of an employee as compared to an independent contractor, and who now have clearer guidance to aid in that understanding. This would apply to new independent contractors, new establishments, and current establishments that are considering hiring independent contractors for the first time. The Department did not quantify this benefit due to uncertainty and the difficulty of determining reliable variables. However, such benefits are expected to be real and significant. The Department requests comments and data to address these constraints.
These proposed changes are expected to result in decreased litigation due to increased clarity and reduced misclassification. The Department provides analysis here to assess the potential magnitude of this cost savings. The methodology of this section mirrors previous final rules promulgated in recent years. The Department requests comments on the assumptions in this section.
The Department estimates that, due to increased clarity on independent contractor status, $33.6 million in litigation costs will be avoided per year. To reach this estimate, the Department determined that there were 6,711 federal cases relating to the FLSA filed in 2019.
Next, the Department applied a previous estimate of litigation costs of $654,182 per case. To obtain this estimate, the Department examined a selection of 56 FLSA cases concluded between 2012 and 2015 that contained litigation cost information to estimate the average costs of litigation.
Applying these figures to the estimated 47 cases that could be prevented each year due to this rulemaking, the Department estimates that avoided litigation costs resulting from the rule total $33.6 million per year (2019 dollars).
The Department estimates that annual cost savings associated with this rule would be $480.8 million ($447.2 million in increased clarity + $33.6 million in avoided litigation costs).
Removing uncertainty improves labor market efficiency by reducing deadweight loss. As discussed in the need for rulemaking, the Department believes emerging and innovative economic arrangements that benefit both workers and business require reasonable certainty regarding the worker's classification as an independent contractor. The current legal uncertainty may deter businesses from offering these arrangements or developing them in the first place.
By decreasing uncertainty and thus potentially opening new opportunities for firms, this proposed rule may encourage companies to hire independent contractors whom they otherwise would not have hired. Eisenach (2010) outlines the potential costs of curtailing independent contracting.
• Increased job creation and small business formation.
• Increased competition and decreased prices.
• A more flexible and dynamic work force, where workers are able to more easily move to locations or to employers where their labor and skills are needed.
Eisenach explains several channels through which these efficiency gains may be achieved. First, by avoiding some fixed employment costs, it is easier for firms to adjust their labor needs based on fluctuations in demand. Second, by using pay-for-preference, independent contractors are incentivized to increase production and quality. Third, “contracting can be an important mechanism for overcoming legal and regulatory barriers to economically efficient employment arrangements.” The analysis of these benefits assume that businesses, especially in other industries, would like to increase their use of independent contractors, but have refrained from doing so because of uncertainty regarding who can appropriately be engaged as an independent contractor under the FLSA. Conversely, significant use of independent contractors may not be suitable for all industries, thus limiting the growth in its utilization.
The Department believes this rulemaking may also result in greater autonomy and job satisfaction for workers. Several surveys have shown that independent contractors have high job satisfaction.
By clarifying that control and opportunity for profit are the core economic reality factors, this proposed rule is likely to encourage the creation of independent contractor jobs that provide autonomy and entrepreneurial opportunities that workers find satisfying. For the same reason, this proposed rule likely would diminish the incidence of independent contractor jobs that lack these desired characteristics. Thus, the Department expects this NPRM, if finalized, to result in more independent contractor opportunities which bring with them autonomy and job satisfaction. The benefits of worker autonomy and satisfaction obviously “are difficult or impossible to quantify,” but they nonetheless merit consideration.
When proposing an economically significant rule, Executive Order 12866 requires agencies to conduct “[a]n assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation.”
(1) Codification of the common law control test, which applies in distinguishing between employees and independent contractors under various other federal laws;
(2) codification of the traditional six-factor “economic reality” balancing test, as recently articulated in WHD Opinion Letter FLSA2019-6; and
(3) codification of the “ABC” test, as adopted by the California Supreme Court in
The least stringent alternative to the proposed rule's streamlined “economic reality” test would be to adopt a common law control test, as is generally used to determine independent contractor classification questions arising under the Internal Revenue Code and various other federal laws.
Although the common law control test considers many of the same factors as those identified in the proposed rule's “economic reality” test (
Codifying a common law control test would create a simpler legal regime for regulated entities interested in receiving services from an independent contractor, thereby reducing confusion, compliance costs, and legal risk for entities interested in doing business with independent contractors. Entities would not, for example, have to understand and apply one employment classification standard for tax purposes and a different employment classification standard for FLSA purposes. Thus, adopting the common law control test would likely increase perpetual cost savings for regulated entities attributable to improved clarity and reduced litigation as compared to the proposed rule. It could, on the other hand, impose burdens on workers who might prefer to be employees subject to FLSA protections.
The Department notes that the Supreme Court has interpreted the “suffer or permit” language in section 3(g) of the FLSA as demanding a broader definition of employment than that which exists under the common law.
As discussed earlier in section II(B), WHD has long applied a multifactor “economic reality” balancing test to distinguish between employees and independent contractors in enforcement actions and subregulatory guidance. Recently articulated in WHD Opinion Letter FLSA2019-6, the six factors presently considered in WHD's multifactor balancing test are as follows:
(1) The nature and degree of the potential employer's control;
(2) The permanency of the worker's relationship with the potential employer;
(3) The amount of the worker's investment in facilities, equipment, or helpers;
(4) The amount of skill, initiative, judgment, or foresight required for the worker's services;
(5) The worker's opportunities for profit or loss; and
(6) The extent of integration of the worker's services into the potential employer's business.
The Department believes that the six-factor balancing test (as articulated in WHD Opinion Letter FLSA2019-6) is neither more nor less permissive of independent contractor relationships as compared to the streamlined test proposed in this rulemaking. Both tests describe the “economic dependence” of the worker at issue as the ultimate inquiry of the test; both emphasize the primacy of actual practice over contractual or theoretical possibilities (
Although codifying this six-factor balancing test would thus impose a comparably stringent legal standard on the regulated community, the Department believes, as explained earlier in section III, that the six-factor balancing test presently used by WHD and most courts would benefit from clarification, sharpening, and streamlining. For this reason, the Department believes that codifying such a test would not yield the perpetual benefits and cost savings discussed earlier in this analysis, such as improved clarity and reduced FLSA litigation. Additionally, the Department does not believe that codifying the six-factor balancing test would reduce initial regulatory familiarization costs or provide per-contract clarity cost savings, as interested establishments and independent contractors will likely spend the same amount of time learning about any new regulatory language addressing independent contractor status under the FLSA (no regulatory guidance on the topic currently exists).
The most stringent regulatory alternative to the Department's proposed rule would be to codify the “ABC” test recently adopted under California's state wage and hour law to distinguish between employee/independent contractor statuses.
On its face, California's ABC test is far more restrictive of independent contracting arrangements than any formulation of an “economic reality” balancing test, including the proposed rule. Whereas no single factor necessarily disqualifies a worker from independent contractor status under an economic reality test,
In any event, the Department believes it is legally constrained from adopting California's ABC test because the Supreme Court has instituted the economic reality test as the relevant standard for determining workers' classification under the FLSA as an employee or independent contractor.
The California Supreme Court explicitly recognized that the ABC test defines “employee” more broadly than the FLSA when it explained that the ABC test rests on a “standard in California wage orders [that] was not intended to embrace the [FLSA's] economic reality test” and was instead “intended to provide broader protection than that accorded workers under the [FLSA] standard.”
Although the ABC test is “a simpler, more structured test” than a multifactor balancing test and would likely lead to more consistent classification outcomes,
In summary, the Department believes that this rule will increase clarity regarding whether a worker is classified as an employee or an independent contractor under the FLSA. This clarity could result in an increased use of independent contractors. The costs and benefits to a worker being classified as an independent contractor are discussed throughout this analysis, and are summarized below.
The Department believes that there are real benefits to the use of independent contractor status, for both workers and employers. Independent contractors generally have greater autonomy and more flexibility in their hours, providing them more control over the management of their time. The use of independent contracting for employers allows for a more flexible and dynamic workforce, where workers provide labor and skills where and when they are needed. Independent contractors may more easily work for multiple companies simultaneously, have more control over their labor-leisure balance, and more explicitly define the nature of their work. Independent contractors also appear to have higher job satisfaction.
An increase in the number of job openings for independent contractors can also have benefits for the economy as a whole. Increased job creation and enhanced flexibility in work arrangements are critical benefits during periods of economic uncertainty, such as the current COVID-19 pandemic.
There are unique challenges that face independent contractors compared to employees subject to the FLSA. Independent contractors are not subject to the protections of the FLSA, such as minimum wage and overtime pay. Independent contractors generally do not receive the same employer-provided benefits as employees, such as health insurance, retirement contributions, and
Because the Department does not know how many workers may shift from employee status to independent contractor status, or how many people who were previously unemployed or out of the labor force will gain work as an independent contractor, these costs and benefits have not been quantified. The Department welcomes comments and data on these costs and benefits, and on how the prevalence of independent contractor relationships will change as a result of this proposed rule.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
The Department used the Small Business Administration size standards, which determine whether a business qualifies for small-business status, to estimate the number of small entities.
The per-entity cost for small business employers is the regulatory familiarization cost of $54.74, or the fully loaded mean hourly wage of a Compensation, Benefits, and Job Analysis Specialist multiplied by one hour. The per-entity rule familiarization cost for independent contractors, some of whom would be small businesses, is $11.59, or the fully loaded mean hourly wage of independent contractors in the CWS ($46.36) multiplied by 0.25 hour.
The cost savings due to increased clarity estimated per year for each small business employer is $18.25, or the fully loaded mean hourly wage of a Compensation, Benefits, and Job Analysis Specialist multiplied by 0.33 hours. The cost savings due to increased clarity for each independent contractor, some of whom would be a small business, is $3.86 per year, or the fully loaded mean hourly wage of independent contractors in the CWS multiplied by 0.83 hours. Because regulatory familiarization is a one-time cost and the cost savings from clarity recur each year, the Department expects cost savings to outweigh regulatory familiarization costs in the long run. Because both costs and cost savings are minimal for small business entities, and well below one percent of their gross annual revenues, which is typically at least $100,000 per year for the smallest businesses, the Department certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities.
There is some evidence that small firms use independent contractors for a greater proportion of their workforce than large firms.
The Unfunded Mandates Reform Act of 1995 (UMRA)
This proposed rule is issued pursuant to the Fair Labor Standards Act, 29 U.S.C. 201,
For purposes of the UMRA, this rule includes a federal mandate that is expected to result in increased expenditures by the private sector of more than $156 million in at least one year, but will not result in increased expenditures by state, local, and tribal governments, in the aggregate, of $156 million or more in any one year.
Based on the cost analysis from this proposed rule, the Department determined that the proposed rule will result in Year 1 total costs for state and local governments totaling $1.7 million, all for regulatory familiarization. There
The Department determined that the proposed rule will result in Year 1 total costs for the private sector of $369.2 million, all of them incurred for regulatory familiarization. The Department included all independent contractors in the private sector total regulatory familiarization costs. There will be no additional costs incurred in subsequent years.
UMRA requires agencies to estimate the effect of a regulation on the national economy if such estimates are reasonably feasible and the effect is relevant and material.
The Department's PRIA estimates that the total costs of the proposed rule will be $369.2 million. Given OMB's guidance, the Department has determined that a full macroeconomic analysis is not likely to show that these costs would have any measurable effect on the economy.
This Department believes that it has chosen the least burdensome but still cost-effective methodology to clarify its interpretation of the FLSA's distinction between employees and independent contractors. Although the proposed regulation would impose costs for regulatory familiarization, the Department believes that its proposal would reduce the overall burden on organizations by simplifying and clarifying the analysis for determining whether a worker is classified as an employee or an independent contractor under the FLSA. The Department believes that, after familiarization, this rule will reduce the time spent by organizations to determine whether a worker is an independent contractor. Additionally, revising the Department's guidance to provide more clarity could promote innovation and certainty in business relationships.
The undersigned hereby certifies that the proposed rule would not adversely affect the well-being of families, as discussed under section 654 of the Treasury and General Government Appropriations Act, 1999.
Agriculture, Child labor, Wages.
Forests and forest products, Wages.
Employment, Wages.
For the reasons set out in the preamble, the Department of Labor proposes to amend Title 29 of the Code of Federal Regulations parts 780 and 788 and add part 795, as follows:
Secs. 1-19, 52 Stat. 1060, as amended; 29 U.S.C. 201-219.
(b) In determining whether such individuals are employees or independent contractors, the criteria laid down in §§ 795.100 through 795.110 of this chapter are used.
Secs. 1-19, 52 Stat. 1060, as amended; 29 U.S.C. 201-219.
(a) In determining whether individuals are employees or independent contractors, the criteria laid down in §§ 795.100 through 795.110 of this chapter are used.
52 Stat. 1060, as amended; 29 U.S.C. 201-219.
This part contains the Department of Labor's general interpretations of the text governing individuals' classification as employees or independent contractors under the Fair Labor Standards Act (FLSA or Act).
(a)
(b)
(c)
(d)
(ii)
(2
(ii)
(iii)
In evaluating the individual's economic dependence on the potential employer, the actual practice of the parties involved is more relevant than what may be contractually or theoretically possible. For example, an individual's theoretical abilities to negotiate prices or to work for competing businesses are less meaningful if, as a practical matter, the individual is prevented from exercising such rights. Likewise, a business' contractual authority to supervise or discipline an individual may be of little relevance if in practice the business never exercises such authority.
If any provision of this part is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, or stayed pending further agency action, the provision shall be construed so as to continue to give the maximum effect to the provision permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event the provision shall be severable from part 795 and shall not affect the remainder thereof.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notification of data availability and request for information.
The U.S. Department of Energy (DOE) is publishing an analysis of the energy savings potential of amended industry consensus standards for certain classes of computer room air conditioners (CRACs) and air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 Btu/h (air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment). As required under the Energy Policy and Conservation Act (EPCA), DOE has been triggered to act by changes to the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 90.1. DOE is also soliciting information regarding energy conservation standards for CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment for which the industry consensus standards have not been amended, pursuant to EPCA's six-year-lookback review requirement. This notice of data availability (NODA) and request for information (RFI) solicits information from the public to help DOE determine whether more-stringent amended standards for CRACs or air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment would result in significant additional energy savings and whether such standards would be technologically feasible and economically justified. DOE welcomes written comments from the public on any subject within the scope of this document (including topics not specifically raised in this NODA/RFI), as well as the submission of data and other relevant information.
Written comments and information are requested and will be accepted on or before November 9, 2020.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
1.
2.
3.
4.
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this document (Public Participation).
The docket web page can be found at:
Ms. Catherine Rivest and Mr. Antonio Bouza, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-7335. Email:
Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585. Telephone: (202) 586-5827. Email:
For further information on how to submit a comment or review other public comments and the docket, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
The Energy Policy and Conservation Act, as amended (EPCA),
Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of the EPCA specifically include definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C. 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).
Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption in limited circumstances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (See 42 U.S.C. 6316(b)(2)(D)).
In EPCA, Congress initially set mandatory energy conservation standards for certain types of commercial heating, air-conditioning, and water-heating equipment. (42 U.S.C. 6313(a)) Specifically, the statute sets standards for small, large, and very large commercial package air conditioning and heating equipment,
In acknowledgement of technological changes that yield energy efficiency benefits, Congress further directed DOE through EPCA to consider amending the existing Federal energy conservation standard for each type of covered equipment listed, each time ASHRAE amends Standard 90.1 with respect to such equipment. (42 U.S.C. 6313(a)(6)(A)) When triggered in this manner, DOE must undertake and publish an analysis of the energy savings potential of amended energy efficiency standards, and amend the Federal standards to establish a uniform national standard at the minimum level specified in the amended ASHRAE Standard 90.1, unless DOE determines that there is clear and convincing evidence to support a determination that a more-stringent standard level as a national standard would produce significant additional energy savings and be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(i)-(ii)) If DOE decides to adopt as a uniform national standard the minimum efficiency levels specified in the amended ASHRAE Standard 90.1, DOE must establish such standard not later than 18 months after publication of the amended industry standard. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) However, if DOE determines, supported by clear and convincing evidence, that a more-stringent uniform national standard would result in significant additional conservation of energy and is technologically feasible and economically justified, then DOE must establish such more-stringent uniform national standard not later than 30 months after publication of the amended ASHRAE Standard 90.1.
(1) The economic impact of the standard on the manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the product compared to any increases in the initial cost or maintenance expense;
(3) The total projected amount of energy savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy conservation; and
(7) Other factors the Secretary considers relevant.
(42 U.S.C. 6313(a)(6)(B)(ii)).
In an update to 10 CFR part 430, subpart C, appendix A, “Procedures, interpretations, and policies for consideration of new or revised energy conservation standards and test procedures for commercial/industrial equipment” (the updated Process Rule),
Although EPCA does not explicitly define the term “amended” in the context of what type of revision to ASHRAE Standard 90.1 would trigger DOE's obligation, DOE's longstanding interpretation has been that the statutory trigger is an amendment to the standard applicable to that equipment under ASHRAE Standard 90.1 that increases the energy efficiency level for that equipment.
DOE notes that Congress adopted amendments to these provisions related to ASHRAE Standard 90.1 equipment under the American Energy Manufacturing Technical Corrections Act (Pub. L. 112-210 (Dec. 18, 2012); “AEMTCA”). In relevant part, DOE is prompted to act whenever ASHRAE Standard 90.1 is amended with respect to “the standard levels or design requirements applicable under that standard” to any of the enumerated types of commercial air conditioning, heating, or water heating equipment covered under EPCA. (42 U.S.C. 6313(a)(6)(A)(i)).
In those situations where ASHRAE has not acted to amend the levels in ASHRAE Standard 90.1 for the covered equipment types enumerated in the statute, EPCA also provides for a 6-year-lookback to consider the potential for amending the uniform national standards. (42 U.S.C. 6313(a)(6)(C)) Specifically, pursuant to the amendments to EPCA under AEMTCA, DOE is required to conduct an evaluation of each class of covered equipment in ASHRAE Standard 90.1 “every 6 years” to determine whether the applicable energy conservation standards need to be amended. (42 U.S.C. 6313(a)(6)(C)(i)) DOE must publish either a notice of proposed rulemaking (NOPR) to propose amended standards or a notice of determination that existing standards do not need to be amended. (42 U.S.C. 6313(a)(6)(C)(i)(I)-(II)) In proposing new standards under the 6-year-lookback review, DOE must undertake the same considerations as if it were adopting a standard that is more stringent than an amendment to ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(C)(i)(II), 42 U.S.C. 6313(a)(6)(B)).
The 6-year-lookback review is a separate statutory review obligation, as differentiated from the obligation triggered by an ASHRAE Standard 90.1 amendment, as previously discussed. ASHRAE not acting to amend Standard 90.1 is tantamount to a decision that the existing standard remain in place. 85 FR 8626, 8708 (Feb. 14, 2020). Thus, when undertaking a review as required by 42 U.S.C. 6313(a)(6)(C), DOE would need to find clear and convincing evidence, as defined in the Process Rule, to issue a standard more stringent than the existing standard for the equipment at issue.
On October 24, 2019, ASHRAE officially released for distribution and made public ASHRAE Standard 90.1-2019. As discussed in the following sections, DOE has preliminarily determined that the amendments to ASHRAE Standard 90.1 have triggered DOE's obligations under 42 U.S.C. 6313(a)(6), for certain equipment classed of CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment.
As a preliminary step in the process of reviewing the changes to ASHRAE Standard 90.1, EPCA directs DOE to publish in the
Although not compelled to do so by the statute, DOE may decide in appropriate cases to simultaneously conduct an ASHRAE trigger rulemaking (
For all classes of CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment (including both the classes for which ASHRAE did and did not increase the stringency of energy efficiency levels applicable under ASHRAE Standard 90.1), DOE seeks data and information that could enable the agency to determine whether a more-stringent standard: (1) Would not result in significant additional savings of energy; (2) is not technologically feasible; (3) is not economically justified; or (4) any combination of the foregoing. If for the triggered equipment classes, standard levels more stringent than the amended ASHRAE levels do not meet the statutory criteria, DOE would adopt the amended ASHRAE Standard 90.1 levels. If for the non-triggered equipment classes, standard levels more stringent than the current Federal standards do not meet the statutory criteria, DOE would determine the standards do not need to be amended.
As explained previously, DOE is publishing this NODA as a preliminary step pursuant to EPCA's requirements for DOE to consider amended standards for certain categories of commercial equipment covered by ASHRAE Standard 90.1, whenever ASHRAE amends its standard to increase the energy efficiency level for an equipment class within a given equipment category. Specifically, this NODA
DOE carefully examined the changes for equipment in ASHRAE Standard 90.1 in order to thoroughly evaluate the amendments in ASHRAE Standard 90.1-2019, thereby permitting DOE to determine what action, if any, is required under its statutory mandate. Section II of this NODA contains DOE's evaluation of the amendments in ASHRAE Standard 90.1-2019. For equipment classes preliminarily determined to have increased efficiency levels or changes in design requirements in ASHRAE Standard 90.1-2019, DOE subjected that equipment to further analysis as discussed in section III of this NODA. Section IV requests comment for those equipment classes for which efficiency levels and design requirements have not been increased or changed in ASHRAE Standard 90.1-2019, but are undergoing review under EPCA's 6-year-lookback authority.
In summary, the energy savings analysis presented in this NODA is a preliminary step required under 42 U.S.C. 6313(a)(6)(A)(i). DOE is also treating it as an opportunity to gather information regarding its obligations under 42 U.S.C. 6313(a)(6)(C). After review of the public comments on this NODA, DOE will either establish amended uniform national standards for the subject equipment at the minimum level specified in ASHRAE Standard 90.1-2019, or where supported by clear and convincing evidence, consider more-stringent efficiency levels that would be expected to result in significant additional conservation of energy and are technologically feasible and economically justified. If DOE determines it appropriate to conduct such a rulemaking under the statute, DOE will address the anti-backsliding provision,
(1) The economic impact on manufacturers and consumers of the product subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the product in the type (or class), compared to any increase in the price, initial charges, or maintenance expenses of the products likely to result from the standard;
(3) The total projected amount of energy savings likely to result directly from the standard;
(4) Any lessening of product utility or performance of the product likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, likely to result from the standard;
(6) The need for national energy conservation; and
(7) Other factors the Secretary considers relevant.
(42 U.S.C. 6313(a)(6)(B)(ii)(I)-(VII)).
EPCA defines “commercial package air conditioning and heating equipment” as air-cooled, water-cooled, evaporatively-cooled, or water source (not including ground water source) electrically operated, unitary central air conditioners and central air conditioning heat pumps for commercial application. (42 U.S.C. 6311(8)(A); 10 CFR 431.92) EPCA further divides “commercial package air conditioning and heating equipment” based on cooling capacity (
Pursuant to its authority under EPCA (42 U.S.C. 6313(a)(6)(A)) and in response to updates to ASHRAE Standard 90.1, DOE has established additional categories of equipment that meet the EPCA definition of “commercial package air conditioning and heating equipment,” but which EPCA did not expressly identify. These equipment categories include CRACs (
DOE's current energy conservation standards for 30 equipment classes of CRACs are codified at 10 CFR 431.97. DOE defines “computer room air conditioner” as a commercial package air-conditioning and heating equipment (packaged or split) that is: Used in computer rooms, data processing rooms, or other information technology cooling applications; rated for sensible coefficient of performance (SCOP) and tested in accordance with 10 CFR 431.96, and is not a covered product under 42 U.S.C. 6291(1)-(2) and 42 U.S.C. 6292. A computer room air conditioner may be provided with, or have as available options, an integrated humidifier, temperature, and/or humidity control of the supplied air, and reheating function. 10 CFR 431.92.
DOE's regulations include test procedures and energy conservation standards that apply to the current CRAC equipment classes that are differentiated by condensing system
DOE's test procedure for CRACs, set forth at 10 CFR 431.96, currently incorporates by reference American National Standards Institute (ANSI)/ASHRAE Standard 127-2007 (ANSI/ASHRAE 127-2007), “
The energy conservation standards for CRACs were most recently amended through the final rule for energy conservation standards and test procedures for certain commercial HVAC and water heating equipment published in the
DOE published a Notice of Data Availability and Request for Information (NODA/RFI) in response to the amendments to the industry consensus standard contained in ASHRAE Standard 90.1-2016 in the
As noted previously, on October 24, 2019, ASHRAE officially released for distribution and made public ASHRAE Standard 90.1-2019. ASHRAE Standard 90.1-2019 revised the efficiency levels for certain commercial equipment, including certain classes of CRACs (as discussed in the following section). ASHRAE Standard 90.1-2019 either maintained or increased the stringency of the efficiency levels applicable to CRAC in ASHRAE Standard 90.1-2016, and as such, addressing the amendments for CRACs in ASHRAE Standard 90.1-2019 will also address DOE's obligations for CRACs resulting from the 2016 update to ASHRAE Standard 90.1 (
The energy conservation standards for air-cooled, three-phase, small commercial package air conditioning and heating equipment were most recently amended through the final rule for energy conservation standards and test procedures for certain commercial HVAC and water heating equipment published in the
The current DOE test procedure at 10 CFR 431.96 for air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment incorporates by reference ANSI/AHRI Standard 210/240-2008, “Performance Rating of Unitary Air-Conditioning & Air-Source Heat Pump Equipment,” approved by
As noted previously, on October 24, 2019, ASHRAE officially released for distribution and made public ASHRAE Standard 90.1-2019. ASHRAE Standard 90.1-2019 revised the efficiency levels for certain commercial equipment, including certain classes of air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment (as discussed in the following section).
Before beginning an analysis of the potential energy savings that would result from adopting a uniform national standard as specified by ASHRAE Standard 90.1-2019 or more-stringent uniform national standards, DOE must first determine whether the ASHRAE Standard 90.1-2019 standard levels actually represent an increase in efficiency above the current Federal standard levels or whether ASHRAE Standard 90.1-2019 adopted new design requirements, thereby triggering DOE action.
This section contains a discussion of: (1) Each equipment class for which the ASHRAE Standard 90.1-2019 efficiency levels differ from the current Federal minimum efficiency levels
As noted in section I.C of this document, ASHRAE adopted efficiency levels for all CRAC equipment classes denominated in terms of NSenCOP in the 2016 and 2019 versions of Standard 90.1 (measured per AHRI 1360-2016 and AHRI 1360-2017, respectively), whereas DOE's current standards are denominated in terms of SCOP (measured per ANSI/ASHRAE 127-2007). For this NODA, DOE's analysis focuses on whether DOE has been triggered by ASHRAE Standard 90.1-2019 updates to minimum efficiency levels for CRACs and whether more-stringent standards are warranted; DOE will separately consider whether to adopt the NSenCOP metric for all CRAC equipment classes as part of the ongoing test procedure rulemaking. As discussed in detail in section II.A of this NODA, DOE has conducted a crosswalk analysis of the ASHRAE Standard 90.1-2019 standard levels (in terms of NSenCOP) and the corresponding current Federal energy conservation standards (in terms of SCOP) to compare the stringencies. DOE has tentatively determined that the updates in ASHRAE Standard 90.1-2019 increased the stringency of efficiency levels for 48 equipment classes and maintained equivalent levels for six equipment classes of CRACs relative to the current Federal standard.
Current Federal standards for air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment are in terms of seasonal energy efficiency ratio (SEER) and heating seasonal performance factor (HSPF) as measured by the current DOE test procedure which incorporates by reference the ANSI/AHRI 210/240-2008. 10 CFR 431.96, Table 1. ASHRAE Standard 90.1-2019 adopts new energy efficiency levels and new metrics for all equipment classes of air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment. Beginning January 1, 2023, the metrics for this equipment under ASHRAE Standard 90.1-2019 are SEER2 and HSPF2, as measured by AHRI 210/240-2023, “Performance Rating of Unitary Air-Conditioning & Air-Source Heat Pump Equipment” (published in May 2020).
On October 2, 2018, DOE published in the
In order to determine whether the 2023 efficiency levels in ASHRAE Standard 90.1-2019 represent an increase in efficiency, DOE has developed a preliminary crosswalk for translating SEER to SEER2 and HSPF to HSPF2 based on the metric translations between SEER to SEER2 and HSPF to HSPF2 developed for single-phase products (see section II.B.1 of this document for details). DOE has tentatively determined that the levels in ASHRAE Standard 90.1-2019 for this equipment category are more stringent for two equipment classes, equivalent for two equipment classes, and less stringent for six equipment classes relative to the current Federal standard.
Table II-1 and Table II-2 show the equipment classes and efficiency levels for CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment provided in ASHRAE Standard 90.1-2019 and the current Federal energy conservation standards. Table II-1 and Table II-2 also display the corresponding existing Federal equipment classes for clarity and indicate whether the updated levels in ASHRAE Standard 90.1-2019 trigger DOE's evaluation as required under EPCA (
DOE currently prescribes energy conservation standards for 30 equipment classes of CRACs at 10 CFR 431.97. The current CRAC equipment classes are differentiated by condensing system type (air-cooled, water-cooled, water-cooled with fluid economizer, glycol-cooled, or glycol-cooled with fluid economizer), NSCC (less than 65,000 Btu/h, greater than or equal to 65,000 Btu/h and less than 240,000 Btu/h, or greater than or equal to 240,000 Btu/h and less than 760,000 Btu/h), and direction of conditioned air over the cooling coil (upflow or downflow). Federal standards established in 10 CFR 431.97 are specified in terms of SCOP, based on rating conditions in ANSI/ASHRAE 127-2007. 10 CFR 431.96(b)(2).
As discussed in the September 2019 NODA/RFI, ASHRAE Standard 90.1-2016 established new equipment classes for CRACs. 84 FR 48006, 48013 (Sept. 11, 2019). ASHRAE Standard 90.1-2016 added efficiency levels for horizontal-flow CRAC equipment classes, disaggregated the upflow CRAC equipment classes into upflow ducted and upflow non-ducted equipment classes, and established different sets of efficiency levels for upflow ducted and upflow non-ducted equipment classes based on the corresponding rating conditions specified in AHRI 1360-2016. In contrast, DOE currently specifies the same set of standards at 10 CFR 431.97 for all covered upflow CRACs, regardless of ducting configuration.
ASHRAE Standard 90.1-2019 maintains the equipment class structure for floor-mounted CRACs as established in ASHRAE Standard 90.1-2016. ASHRAE Standard 90.1-2019 amended the efficiency levels in ASHRAE Standard 90.1-2016 for all but three of those equipment classes. ASHRAE Standard 90.1-2019 also added classes for air-cooled CRACs with fluid economizers and a new table with new efficiency levels for ceiling-mounted CRAC equipment classes. The equipment in horizontal-flow and ceiling-mounted classes is not currently subject to Federal standards set forth in 10 CFR 431.97, although DOE issued a draft guidance document on October 7, 2015 to clarify that horizontal-flow and ceiling-mounted CRACs are covered equipment and are required to be tested under the current DOE test procedure for purposes of making representations of energy consumption. (Docket No. EERE-2014-BT-GUID-0022, No. 3, pp. 1-2) In contrast, upflow and downflow air-cooled CRACs with fluid economizers are currently subject to the Federal standards in 10 CFR 431.97 for air-cooled equipment classes.
DOE considered whether there were any increases in stringency in the ASHRAE Standard 90.1-2019 levels for CRAC classes covered by DOE standards, thus triggering DOE obligations under EPCA. As with the assessment of ASHRAE Standard 90.1-2016, for CRACs, this assessment has been complicated because the current standards established in 10 CFR 431.97 are specified in terms of SCOP and based on the rating conditions in ANSI/
As discussed in section II.A.1 of this document, the rating conditions in AHRI 1360-2016 and AHRI 1360-2017 differ from those specified in ANSI/ASHRAE 127-2007 (the industry standard referenced in the current DOE test procedure for CRACs) for most CRAC equipment classes. As part of the analysis for the September 2019 NODA/RFI, DOE conducted a crosswalk analysis for the classes affected by rating condition changes to determine whether the ASHRAE Standard 90.1-2016 levels in terms of NSenCOP and determined according to AHRI 1360-2016 are more stringent than DOE's current standards in terms of SCOP and determined according to ANSI/ASHRAE 127-2007. 84 FR 48006, 48014-48022 (Sept. 11, 2019). Because the rating conditions specified in AHRI 1360-2017 and AHRI 1360-2016 are the same for the classes covered by the crosswalk (upflow ducted, upflow non-ducted, and downflow), the same crosswalk as described in the September 2019 NODA/RFI can be used to compare DOE's current SCOP-based CRAC standards to the NSenCOP values in ASHRAE Standard 90.1-2019 (determined according to AHRI 1360-2017), in order to perform the current analysis required by EPCA. Section II.A.1 of this document includes a detailed discussion of the differences in rating conditions between DOE's current test procedure for CRACs (which references ANSI/ASHRAE 127-2007), AHRI 1360-2016, and AHRI 1360-2017.
The crosswalk allows DOE to determine whether any of the levels specified in the updated ASHRAE Standard 90.1 are more stringent than the current DOE standards; any such levels would be considered “amended” for the purpose of the evaluation required by EPCA. To the extent that the crosswalk identifies amended standards (
DOE performed an efficiency crosswalk analysis to compare the stringency of the current Federal standards (represented in terms of SCOP based on the current DOE test procedure) for CRACs to the stringency of the efficiency levels for this equipment in ASHRAE Standard 90.1-2019 (represented in terms of NSenCOP and based on AHRI 1360-2017). The rating conditions for upflow ducted, upflow non-ducted, and downflow equipment classes specified in AHRI 1360-2017 are the same as in AHRI 1360-2016, so for these classes, the same crosswalk can relate SCOP levels measured according to ANSI/ASHRAE 127-2007 to NSenCOP levels measured according to either the 2016 or 2017 editions of AHRI 1360. Therefore, the crosswalk methodology and resulting “crosswalked” levels of the current Federal standards used in this NODA/RFI are the same as those presented in the September 2019 NODA/RFI (
DOE received several comments in response to the September 2019 NODA/RFI addressing DOE's crosswalk methodology. AHRI stated that it agrees with DOE's crosswalk methodology and analysis, with only slight discrepancies in some of the percentages. However, AHRI also stated that the efficiency levels in ASHRAE 90.1-2019, which were developed by AHRI and DOE, resolve the shortcomings that AHRI stated were in the crosswalk presented in the September 2019 NODA/RFI. (AHRI, No. 7 at p. 4)
For the efficiency crosswalk, DOE analyzed the CRAC equipment classes in ASHRAE Standard 90.1-2019 that are currently subject to Federal standards (
Similarly, DOE's current standards set forth in 10 CFR 431.97 do not distinguish between air-cooled CRACs with and without fluid economizers, whereas ASHRAE Standard 90.1-2019 includes separate sets of efficiency levels for air-cooled CRACs with and without fluid economizers. Therefore, DOE converted the single set of current Federal standards for air-cooled classes in terms of SCOP to crosswalked standards in terms of NSenCOP for air-cooled classes both with and without fluid economizers. However, there is no difference between the rating conditions for air-cooled CRACs with and without fluid economizers in AHRI 1360-2017 so the crosswalk results are identical for these classes.
As explained previously, the levels for CRACs as updated in ASHRAE Standard 90.1-2019 rely on a different metric (NSenCOP) and test procedure (AHRI 1360-2017) than the metric and test procedure required under the Federal standards (SCOP and ANSI/ASHRAE 127-2007, respectively). AHRI 1360-2017 and ANSI/ASHRAE 127-2007 specify different rating conditions, which are listed in Table II-3.
Additionally, in ASHRAE Standard 90.1-2019 (which references AHRI 1360-2017 as the test procedure for CRACs), the capacity boundaries for downflow and upflow-ducted CRAC equipment classes are increased relative to the boundaries of analogous classes in the current Federal standards (which references ANSI/ASHRAE 127-2007 for the test procedure). The capacity values that bound the CRAC equipment classes are in terms of NSCC. For certain equipment classes, NSCC values determined according to AHRI 1360-2017 are higher than the NSCC values determined according to ANSI/ASHRAE 127-2007 because of differences in the specified rating conditions. Because the test procedure in ASHRAE Standard 90.1-2019 results in an increased NSCC value for certain equipment classes, as compared to the NSCC measured in accordance with the current Federal test procedure requirement, some CRACs would switch classes (
As the equipment class capacity increases for upflow or downflow CRAC classes, the stringency of both the ASHRAE Standard 90.1 efficiency level and the current Federal standard decreases. As a result, class switching would subject some CRAC models to an efficiency level under ASHRAE Standard 90.1-2019 that is less stringent than the standard level that is applicable to that model under the current Federal requirements. Such result would be impermissible under EPCA's anti-backsliding provision at 42 U.S.C. 6313(a)(6)(B)(iii)(I).
To provide for an appropriate comparison between current Federal efficiency standards and the efficiency levels in ASHRAE Standard 90.1-2019, address potential backsliding, and evaluate the capacity boundaries in ASHRAE Standard 90.1-2019, a capacity crosswalk was conducted to adjust the NSCC boundaries that separate equipment classes in the Federal efficiency standards to account for the expected increase in measured NSCC values for affected equipment classes (
Both the efficiency and capacity crosswalk analyses have a similar structure and the data for both analyses came from several of the same sources. The crosswalk analyses were informed by numerous sources, including public manufacturer literature, manufacturer performance data obtained through non-disclosure agreements (NDAs), results from DOE's testing of two CRAC units, and DOE's Compliance Certification Database for CRACs. DOE analyzed each test procedure change independently and used the available data to determine an aggregated percentage by which that change impacted efficiency (SCOP) and/or NSCC. Updated SCOP levels and NSCC equipment class boundaries were calculated for each class (as applicable) by combining the percentage changes for every test procedure change applicable to that class.
The following sub-sections describe the approaches used to analyze the impacts on the measured efficiency and capacity of each difference in rating conditions between DOE's current test procedure and AHRI 1360-2017. As discussed previously, the crosswalk analysis methodology described in the following sub-sections is the same as presented in the September 2019 NODA/RFI. No additional data sources were added to the analysis.
ANSI/ASHRAE 127-2007, which is referenced by DOE's current test procedure, specifies a return air dry-bulb temperature (RAT) of 75 °F for testing all CRACs. AHRI 1360-2017 specifies an RAT of 85 °F for upflow ducted and downflow CRACs, but specifies an RAT for upflow non-ducted units of 75 °F. SCOP and NSCC both increase with increasing RAT for two reasons. First, a higher RAT increases the cooling that must be done for the air to approach its dew point temperature (
To analyze the impacts of increasing RAT for upflow ducted and downflow CRACs on SCOP and NSCC, DOE gathered data from three separate sources and aggregated the results for each crosswalk analysis. First, DOE used product specifications for several CRAC models that provide SCOP and NSCC ratings for RATs ranging from 75 °F to 95 °F. Second, DOE analyzed manufacturer performance data obtained under NDAs that showed the performance impact of individual test condition changes, including the increase in RAT. Third, DOE used results from testing two CRAC units: one air-cooled upflow ducted and one air-cooled downflow unit. DOE combined the results of these sources to find the aggregated increases in SCOP and NSCC due to the increase in RAT. The increase in SCOP due to the change in RAT was found to be approximately 19 percent, and the increase in capacity was found to be approximately 22 percent.
ANSI/ASHRAE 127-2007, which is referenced by DOE's current test procedure, specifies an entering water temperature (EWT) of 86 °F for water-cooled CRACs, while AHRI 1360-2017 specifies an entering water temperature of 83 °F. A decrease in the EWT for water-cooled CRACs increases the temperature difference between the water and hot refrigerant in the condenser coil, thus increasing cooling capacity and decreasing compressor power. To analyze the impact of this decrease in EWT on SCOP and NSCC, DOE analyzed manufacturer data obtained through NDAs and a publicly-available presentation from a major CRAC manufacturer and calculated an SCOP increase of approximately 2 percent and an NSCC increase of approximately 1 percent.
For upflow ducted CRACs, AHRI 1360-2017 specifies lower ESP requirements than ANSI/ASHRAE 127-
To determine the impacts on measured SCOP and NSCC of the changes in ESP requirements between DOE's current test procedure and AHRI 1360-2017, DOE aggregated data from its analysis of fan power consumption changes, manufacturer data obtained through NDAs, and results from DOE testing. More details on each of these sources are included in the following paragraphs. The impact of changes in ESP requirements on SCOP and NSCC was calculated separately for each capacity range specified in AHRI 1360-2017 (
DOE conducted an analysis to estimate the change in fan power consumption due to the changes in ESP requirements using performance data and product specifications for 77 upflow CRAC models with certified SCOP ratings at or near the current applicable SCOP standard level in DOE's Compliance Certification Database. Using the certified SCOP and NSCC values, DOE determined each model's total power consumption for operation at the rating conditions specified in DOE's current test procedure. DOE then used fan performance data for each model to estimate the change in indoor fan power that would result from the lower ESP requirements in AHRI 1360-2017, and modified the total power consumption for each model by the calculated value. For several models, detailed fan performance data were not available, so DOE used fan performance data for comparable air conditioning units with similar cooling capacity, fan drive, and fan motor horsepower.
DOE also received manufacturer data (obtained through NDAs) showing the impact on efficiency and NSCC of the change in ESP requirements. Additionally, DOE conducted tests on an upflow-ducted CRAC at ESPs of 1 in. H
For each of the three capacity ranges for which ESP requirements are specified in AHRI AHRI 1360-2017, Table II-4 shows the approximate aggregated percentage increases in SCOP and NSCC associated with the decreased ESP requirements specified in AHRI 1360-2017 for upflow ducted units. As discussed previously, AHRI 1360-2016 specifies the same rating conditions for upflow ducted classes as AHRI 1360-2017.
As discussed in section II.A.1.a of this document, NSCC values determined according to ANSI/ASHRAE 127-2007 are lower than NSCC values determined according to AHRI 1360-2017 for certain CRAC classes, including upflow-ducted classes. The increase in NSCC also impacts the ESP requirements for upflow-ducted units in AHRI 1360-2017 because these requirements are specified based on NSCC. Differences in ESP requirements impact the stringency of the test. For the efficiency and capacity crosswalk analyses in this NODA, DOE used the adjusted capacity boundaries for upflow ducted classes presented in Table II-5 (as discussed in section II.A.1.f of this document) to specify the applicable ESP requirement in AHRI 1360-2017 (rather than using the capacity boundaries specified in AHRI 1360-2017) so that all CRACs within an equipment class would be subject to the same ESP requirement. The same methodology was used in the crosswalk analysis discussed in the September 2019 NODA/RFI.
Energy consumption for heat rejection components for air-cooled CRACs (
Where,
Different combinations of the test procedure changes between DOE's current test procedure and AHRI 1360-2017 affect each of the CRAC equipment classes considered in the crosswalk analyses. To combine the impact on SCOP of the changes to rating conditions (
To account for the impact of the adder for heat rejection pump and fan power for water-cooled and glycol-cooled units, DOE used Equation 3. Hence, DOE determined crosswalked NSenCOP levels corresponding to the current Federal SCOP standards for each CRAC equipment class using the following two equations.
In these equations, NSenCOP
To combine the impact on NSCC of the changes to rating conditions, DOE used a methodology similar to that used for determining the impact on SCOP. To determine adjusted NSCC equipment class boundaries, DOE multiplied together the calculated adjustment factors representing the measurement changes corresponding to each individual rating condition change, as applicable, as shown in Equation 4. These adjustment factors are equal to 100 percent plus the calculated percent change in measured NSCC. In this equation,
As mentioned previously, ASHRAE Standard 90.1-2019 includes adjusted equipment class capacity boundaries for only upflow-ducted and downflow equipment classes. The adjusted class ranges for these categories are <80,000 Btu/h, ≥80,000 Btu/h and <295,000 Btu/h, and ≥295,000 Btu/h. In previous versions of ASHRAE Standard 90.1, these ranges are <65,000 Btu/h, ≥65,000 Btu/h and <240,000 Btu/h, and ≥240,000 Btu/h. The capacity range boundaries for upflow non-ducted classes were left unchanged at 65,000 Btu/h and 240,000 Btu/h in ASHRAE Standard 90.1-2019. DOE's capacity crosswalk analysis indicates that the primary driver for increasing NSCC is increasing RAT. The increases in RAT in AHRI 1360-2017, as compared to ANSI/ASHRAE 127-2007, only apply to upflow ducted and downflow equipment classes. Based on the analysis performed for this document, DOE found that all the equipment class boundaries in ASHRAE Standard 90.1-2019, which are in increments of 5,000 Btu/h, are within 1.4 percent of the boundaries calculated from DOE's capacity crosswalk. As such, to more closely align DOE's analysis with ASHRAE Standard 90.1-2019, DOE has used the equipment class boundaries in ASHRAE Standard 90.1-2019 as the preliminary adjusted boundaries for the crosswalk analysis. Use of the equipment class boundaries from ASHRAE Standard 90.1-2019 allows for an appropriate comparison between the energy efficiency levels and equipment classes specified in ASHRAE Standard 90.1 and those in the current DOE standards, while addressing the backsliding potential discussed previously.
ASHRAE Standard 90.1-2019 does not include an upper capacity limit for coverage of CRACs. DOE's current standards are applicable only to CRACs with an NSCC less than 760,000 Btu/h, which is consistent with the statutory limits on DOE's authority.
The “crosswalked” DOE efficiency levels (in terms of NSenCOP) and adjusted equipment class capacity boundaries were then compared with the NSenCOP efficiency levels and capacity boundaries specified in ASHRAE Standard 90.1-2019 to determine whether the ASHRAE Standard 90.1-2019 requirements are more stringent than current Federal standards.
Table II-5 presents the preliminary results for the crosswalk analyses (see section II.A.1 of this document for detailed discussion of the methodology for the crosswalk analyses). The last column in the table, labeled “Crosswalk Comparison,” indicates whether the ASHRAE Standard 90.1-2019 levels are less stringent, equivalent to, or more stringent than the current Federal standards, based on DOE's analysis.
As indicated by the crosswalk, the standard levels established for CRACs in ASHRAE Standard 90.1-2019 are equivalent to the current Federal standards for 6 equipment classes, and are more stringent than the current Federal standards for all other equipment classes of CRACs. ASHRAE Standard 90.1-2019 also added 66 equipment classes of ceiling-mounted and horizontal-flow CRACs that did not require a crosswalk because there are currently no Federal standards for classes. ASHRAE Standard 90.1-2019 also incorporates shifted capacity bin boundaries for upflow ducted and downflow CRAC equipment classes. DOE's crosswalk analysis indicates that these updated boundaries appropriately reflect the increase in NSCC that results from the changes in test procedure adopted under ASHRAE Standard 90.1-2019 (as discussed in previous sections).
As mentioned in section I.C of this document, DOE published a description of a crosswalk comparing current Federal standards to the minimum efficiency levels in ASHRAE Standard 90.1-2016 and requested comment on the crosswalk methodology and results in the September 2019 NODA/RFI. 84 FR 48006, 48019 (Sept. 11, 2019). The crosswalk and resulting crosswalked levels of the current Federal standards (
In response to the September 2019 NODA/RFI, several stakeholders commented that DOE should not adopt the efficiency levels in ASHRAE Standard 90.1-2016 and should instead adopt the levels in the Second Public Review Draft of Addendum `be' to ASHRAE Standard 90.1-2016 (“the second public review draft”),
Trane commented that there have been no recent technological advancements for CRACs that would merit an increase of stringency in standards relative to the current efficiency levels (which are
AHRI and Trane both recommended that DOE analyze and adopt the levels in ASHRAE Standard 90.1-2019 for all CRAC classes rather than amend efficiencies for only a small subset of products. (Trane, No. 5 at p. 2; AHRI, No. 7 at p. 7) Along these lines, AHRI cautioned that a “no-new-standards” decision for a subset of CRACs would “create a serial rulemaking situation for this equipment.” (AHRI, No. 7 at p. 7) The CA IOUs similarly encouraged DOE to move forward with an expanded energy conservation standards analysis for all equipment subject to the ASHRAE trigger, as well as the covered equipment classes subject to the six-year-lookback provision. CA IOUs also recommended that DOE not make the decision on whether efficiency levels above ASHRAE 90.1 levels can be justified for CRACs until all energy savings and cost-benefit analyses have been completed. (CA IOUs, No. 6 at p. 3)
In response to these comments, DOE notes that this NODA/RFI evaluates the efficiency levels for CRACs included in ASHRAE Standard 90.1-2019. Section III.F of this NODA/RFI includes discussion of DOE's consideration of standards more stringent than the levels in ASHRAE Standard 90.1-2019 for all CRAC equipment classes. Regarding AHRI's concern of a “serial rulemaking,” DOE notes that EPCA prescribes specific timing requirements. As discussed, this NODA/RFI evaluates potential standards pursuant to the ASHRAE trigger in EPCA (42 U.S.C. 6313(a)(6)(A)), as well as pursuant to the periodic lookback review required by EPCA (42 U.S.C. 6313(a)(6)(C)). While DOE has some flexibility to consolidate the reviews mandated by the two separate statutory obligations, EPCA prescribes the specific timing requirements.
In general, EPCA requires DOE conduct an evaluation of each class of covered equipment within six years following an amendment to the Federal standards. (42 U.S.C. 6313(a)(6)(C)(i)) For equipment classes evaluated pursuant to the 6-year-lookback and for which DOE determines amended standards are not justified, EPCA requires DOE to conduct a subsequent review within three years of such a determination. (42 U.S.C. 6313(a)(6)(C)(iii)(II)) As DOE has stated, it may decide in appropriate cases to simultaneously conduct an ASHRAE trigger rulemaking and a lookback rulemaking so as to address all classes of an equipment category at the same time (
As discussed, DOE has analyzed the updated CRAC efficiency levels in ASHRAE Standard 90.1-2019 for the purpose of satisfying the requirements of 42 U.S.C. 6313(a)(6)(A). DOE identified 48 equipment classes for which the ASHRAE Standard 90.1-2019 efficiency levels are more stringent than current DOE efficiency levels (expressed in NSenCOP, see the crosswalk results presented in section II.A.2 of this document), 6 equipment classes for which the ASHRAE Standard 90.1-2019 efficiency levels are equal to the current DOE efficiency levels, and 66 classes of CRACs for which standards are specified in ASHRAE Standard 90.1-2019 that are not currently subject to DOE's standards (
DOE was unable to obtain the market share data needed to disaggregate energy savings for the 6 air-cooled with fluid economizer equipment classes that currently have DOE standards (
DOE's current standards for small three-phase, air-cooled, commercial package AC and HP (<65 K) equipment cover four equipment classes codified at 10 CFR 431.97, including both single package and split systems. The energy efficiency metric as measured under the DOE test procedure listed in Table 1 to 10 CFR 431.96 is SEER for all equipment types in cooling mode and HSPF for heat pumps operating in heating mode.
ASHRAE Standard 90.1-2019 adopted new energy efficiency levels for air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment levels, as well as a metric change. The energy efficiency levels in ASHRAE Standard 90.1-2019 maintain the previous ASHRAE Standard 90.1-2016 levels until January 1, 2023. After this date, the levels for almost all equipment classes in ASHRAE Standard 90.1-2019 will align with Federal standards for air-cooled, single-phase, central air conditioners at 10 CFR 430.32(c)(5), which will also be effective on January 1, 2023. The one exception is the ASHRAE Standard 90.1-2019 energy efficiency level for three-phase space-constrained (S-C) heat pumps, which matches the SEER2 Federal standard for single-phase S-C air conditioners in cooling mode, rather than for single-phase S-C heat pumps in cooling mode. In aligning levels with single-phase central air conditioning standard, the efficiency rating metrics in ASHRAE 90.1-2019 change from SEER to SEER2 and HSPF to HSPF2 effective January 1, 2023.
As discussed, the current DOE test procedure at 10 CFR 431.96 for air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment incorporates by reference ANSI/AHRI 210/240-2008. AHRI has recently published updated industry standards in AHRI 210/240-2017 (published in December 2017), as well as AHRI 210/240-2017 with Addendum 1 (published in April 2019). While ASHRAE Standard 90.1-2016 references AHRI 210/240-2008 with Addendum 1 and 2, ASHRAE Standard 90.1-2019 references AHRI 210/240-2017 for the period prior to January 1, 2023. The reference to AHRI 210/240-2017 does not include Addendum 1, which DOE believes was an oversight.
As part of the October 2018 TP RFI, DOE reviewed AHRI 210/240-2017 (with and without Addendum 1) and initially determined that it is consistent with AHRI 210/240-2008 and would not be expected to impact the measured efficiency of the subject equipment during a representative average use cycle as compared to the 2008 version. 83 FR 49501, 49503 (Oct. 2. 2018). Therefore, DOE determined that the pre-2023 levels in ASHRAE Standard 90.1-2019 based on AHRI 210/240-2017 are consistent with those levels in ASHRAE
For the period beginning January 1, 2023, ASHRAE Standard 90.1-2019 references AHRI 210/240-2023 (to align with updates to minimum efficiency standards that take effect on January 1, 2023). AHRI 210/240-2023, which published in May 2020, adopts the SEER2 and HSPF2 metrics and aligns with the test procedure for single-phase central air conditioners in DOE's test procedure at Appendix M1 to 10 CFR part 430, subpart B.
For the analysis of air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment conducted for this NODA to assess whether the post-2023 levels in ASHRAE Standard 90.1-2019 are a change that triggers DOE review, DOE has applied the crosswalk from SEER to SEER2 (and HSPF to HSPF2 for heat pumps) developed for single-phase products switching to the SEER2 (and HSPF2 for heat pumps) metric. DOE will update the crosswalk as needed based on any separate test procedure rulemaking that DOE may conduct. The crosswalk methodology and results are discussed in the following section.
DOE also notes that ASHRAE Standard 90.1-2019 provides separate levels for small-duct high-velocity (SDHV) and S-C heat pumps, as did ASHRAE Standard 90.1-2013 and ASHRAE Standard 90.1-2016
Given the similarity of the changes occurring, DOE based its preliminary crosswalk analysis on the analysis conducted for single-phase residential central air conditioners and heat pumps switching from SEER and HSPF to SEER2 and HSPF2 in the January 6, 2017 Direct Final Rule for Residential Central Air Conditioners and Heat Pumps (January 2017 direct final rule) published in the
For three-phase equipment classes that did not have matching SEER values in Table V-29 of the January 2017 direct final rule, DOE evaluated the stringency of the ASHRAE Standard 90.1-2019 SEER2 levels relative to the Federal SEER standard by qualitatively assessing how the testing method changes made for single-phase equipment switching from SEER to SEER2 would impact three-phase equipment. For ducted equipment, the difference between Appendix M to 10 CFR part 430 (the pre-2023 test method) and Appendix M1 to 10 CFR part 430 (the post-2023 test method) that impacts measured energy use is an increase in external static pressure. For a given unit, the increase in external static pressure in the post-2023 test method leads to an increased measurement of unit energy consumption, resulting in a lower SEER2 rating (relative to the unit's comparable SEER rating). For SDHV equipment classes, the specified external static pressure is the same in both the pre-2023 and post-2023 test method. Consequently, for a given unit, there is no change between SEER and SEER2 rating.
For three-phase equipment classes that did not have matching HSPF values in Table V-29 of the January 2017 direct final rule, DOE also evaluated the stringency of the ASHRAE Standard 90.1-2019 HSPF2 levels relative to the Federal HSPF standard by qualitatively assessing how the testing method changes made for single-phase equipment switching from HSPF to HSPF2 would impact three-phase equipment. The primary difference between the pre-2023 test method and the post-2023 test method is a change in heating load line. For a given unit, the change in heating load line in the post-2023 test method leads to an increased measurement of unit energy consumption, resulting in a significantly lower HSPF2 rating (relative to the unit's comparable HSPF rating). DOE applied these changes in order to compare the current Federal HSPF to the ASHRAE Standard 90.1-2019 HSPF2.
The results of DOE's preliminary crosswalk are found Table II-6. The last column in the table, labeled “Crosswalk Comparison,” indicates whether the ASHRAE Standard 90.1-2019 levels beginning on January 1, 2023, are less stringent, equivalent to, or more stringent than the crosswalked Federal standards, based on DOE's analysis.
Based on DOE's preliminary crosswalk, two equipment classes have ASHRAE Standard 90.1-2019 levels that are more stringent that current Federal standards; two equipment classes are equivalent, and six equipment classes have ASHRAE Standard 90.1-2019 levels less stringent than the Federal standards.
DOE notes that although the post-2023 values for S-C and SDHV equipment are less stringent than current Federal standards for these equipment, DOE still intends to consider these ASHRAE classes separately in this rulemaking as part of the six-year-lookback review.
As required under 42 U.S.C. 6313(a)(6)(A), for CRAC and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment classes for which ASHRAE Standard 90.1-2019 specifies amended energy efficiency levels that are more stringent than the corresponding Federal energy conservation standards, DOE performed an analysis to determine the energy-savings potential of amending Federal standards to the amended ASHRAE levels as specified in ASHRAE Standard 90.1-2019. DOE's energy savings analysis is limited to equipment classes for which sufficient data are available. However, as discussed in section III.F of this document, DOE has tentatively determined that it lacks clear and convincing evidence that standards more stringent than the amended ASHRAE Standard 90.1 levels for either CRACs or air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment would result in significant additional energy savings because of uncertainty in estimated energy savings resulting from the change in energy efficiency metrics.
The following discussion provides an overview of the energy savings analysis conducted for 42 classes of CRACs and 2 classes of air-cooled, three-phase, small commercial package AC and HP (<65 K) as defined by ASHRAE Standard 90.1-2019, followed by summary results of that analysis. Although ASHRAE Standard 90.1-2019 included levels for horizontal flow and ceiling-mounted CRAC equipment classes (which currently do not have Federal standards), DOE was unable to find market data that could be used to establish a market baseline for these
In addition to the specific issues identified in the following sections on which DOE requests comment, DOE requests comment on its overall approach and analyses used to evaluate potential standard levels for CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K).
For the equipment classes where ASHRAE Standard 90.1-2019 specified more-stringent levels than the corresponding Federal energy conservation standard, DOE calculated the potential energy savings to the Nation associated with adopting ASHRAE Standard 90.1-2019 as the difference between a no-new-standards case projection (
The national energy savings (NES) refers to cumulative lifetime energy savings for equipment purchased in a 30-year period that differs by equipment (
The purpose of the energy use analysis is to assess the energy savings potential of different equipment efficiencies in the building types that utilize the equipment. DOE uses the annual energy consumption and energy-savings potential in the life-cycle cost (LCC) and payback period (PBP) analyses
The Federal standard and ASHRAE Standard 90.1-2019 levels are expressed in terms of an efficiency metric or metrics. For each equipment class, this section describes how DOE developed estimates of annual energy consumption at the Federal baseline efficiency level and the ASHRAE Standard 90.1-2019 level. These annual unit energy consumption (UEC) estimates form the basis of the national energy savings estimates discussed in section III.E of this document.
As noted previously in section II.A.4 of this document, DOE has conducted an energy savings analysis for the 42 CRAC classes that currently have both DOE standards and more-stringent standards under ASHRAE Standard 90.1-2019. DOE was unable to identify market data that would allow for disaggregating results for the six air-cooled with fluid economizer equipment classes with ASHRAE Standard 90.1-2019 levels more stringent than current Federal standards. Although ASHRAE Standard 90.1-2019 included levels for horizontal flow and ceiling-mounted equipment classes which currently are not subject to Federal standards, DOE was unable to identify market data that could be used to establish a market baseline for these classes in order to estimate energy savings. Based on information received in response to this document or otherwise identified, DOE may disaggregate these equipment classes in future analyses and analyze them separately.
In the May 2012 final rule, DOE conducted an energy analysis for 15 downflow CRAC equipment classes using a modified outside temperature bin analysis. 77 FR 28928, 28954 (May 16, 2012). For each air-cooled equipment class, DOE calculated fan energy and condensing unit power consumption at each 5 °F outdoor air dry-bulb temperature bin. The condensing unit power in this context included the compressor(s) and condenser fan(s) and/or pump(s) included as part of the equipment rating. For water-cooled and glycol-cooled equipment, the May 2012 final rule analysis first estimated the entering fluid temperature from either an evaporative cooling tower or a dry cooler for water-cooled and for glycol-cooled CRAC equipment, respectively, based on binned weather data. Using these results, DOE then estimated the condensing unit power consumption and adds to this the estimated supply fan power. The sum of the CRAC condensing unit power and the CRAC supply fan power is the estimated average CRAC total power consumption for each temperature bin. Annual estimates of energy use are developed by multiplying the power consumption at each temperature bin by the number of hours in that bin for each climate analyzed. In the May 2012 final rule, DOE then took a population-weighted average over results for 239 different climate locations to derive nationally representative CRAC annual energy use values. DOE assumed energy savings estimates derived for downflow equipment classes would be representative of upflow equipment. 77 FR 28928, 28954 (May 16, 2012). In this document, DOE is using the results from the May 2012 final rule as the basis for the energy savings potential analysis of the CRAC equipment classes analyzed for this document, similar to the methodology used in the September 2019 NODA/RFI.
DOE analyzed the energy savings potential of adopting ASHRAE Standard 90.1-2019 levels for CRAC equipment classes that currently have a Federal standard and have an ASHRAE Standard 90.1-2019 standard more stringent than the current Federal standard. For each equipment class, energy savings are measured relative to the baseline (
For this analysis, DOE used a similar analysis to that presented in the September 2019 NODA/RFI. To derive UECs for the equipment classes analyzed in this document, DOE started with the adopted standard level UECs (
In the May 2012 final rule, DOE assumed energy savings estimates derived for downflow equipment classes would be representative of upflow equipment classes which differed by a fixed 0.11 SCOP. 77 FR 28928, 28954 (May 16, 2012). Because of the fixed 0.11 SCOP difference between upflow and downflow CRAC units in ASHRAE Standard 90.1-2013, DOE determined
In response to the September 2019 NODA/RFI, AHRI stated that DOE's proposed approach to determine the UEC of upflow units using the fractional increase or decrease in NSenCOP relative to the baseline downflow unit in a given equipment class grouping of condenser system and capacity was reasonable and an acceptable method to use. (AHRI, No. 7 at p. 5) Trane stated that return air conditions are becoming more likely to approach AHRI 1360 class 4 levels in response to increased use of High-Performance Computing models. At higher return temperatures, CRACs can avoid latent cooling and be more efficient. (Trane, No. 5 at p. 2) However, Trane stated that using the UECs derived for the 2012 rule might be the most workable option for evaluating the impact of proposed standards. (Trane, No. 5 at p. 2) After consideration of these comments, DOE has tentatively decided to maintain the same methodology in this document.
Table III-1 shows UEC estimates for the equipment classes triggered by ASHRAE Standard 90.1-2019 (
In response to the ASHRAE trigger at 42 U.S.C. 6313(a)(6)(A), DOE conducted an analysis of energy savings potential for two equipment classes of air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment: (1) Air-cooled, three-phase, split-system air conditioners less than 65,000 Btu/h, and (2) air-cooled, three-phase, split-system heat pumps less than 65,000 Btu/h.
DOE analyzed the energy savings potential of adopting the post-2023 ASHRAE Standard 90.1-2019 levels for air-cooled, three-phase, small commercial package AC and HP (<65 K) classes that currently have a Federal standard and have an ASHRAE Standard 90.1-2019 standard more stringent than current Federal standards. For each equipment class, energy savings are measured relative to the baseline (
The energy use analysis provides estimates of the annual energy consumption of air-cooled, three-phase, small commercial package AC and HP (<65 K), at the current Federal baseline and at the ASHRAE Standard 90.1-2019 level. To estimate the savings of the ASHRAE Standard 90.1-2019 level relative to the current Federal baseline, DOE used the cooling UECs that were developed for the same kind of split systems in the July 2015 final rule. 80 FR 42614, 42625 (July 17, 2015). The UECs in the July 2015 final rule came from the national impact analysis of a direct final rule for residential central air conditioners and heat pumps published June 27, 2011 (76 FR 37408) (June 2011 DFR), specifically the UECs for residential split-system equipment that were used in commercial buildings. (EERE-2011-BT-STD-0011-0011) In the July 2015 final rule, DOE accounted for variability by climate and building type by using estimates of the Full Load Equivalent Operating Hours (FLEOH) for cooling and heating equipment from a Pacific Northwest National Laboratory report.
DOE uses shipment projections by equipment class to calculate the national impacts of standards on energy consumption, as well as net present value and future manufacturer cash flows. DOE shipments projections typically are based on available historical data broken out by equipment. Current sales estimates allow for a more accurate model that captures recent trends in the market.
In the September 2019 NODA/RFI, DOE performed a “bottom-up” calculation to estimate CRAC shipments based on the cooling demand required from CRAC-cooled data centers. Where possible, DOE has incorporated data and information received in comments to that document to better inform its analysis. DOE's approach in this document estimates total annual shipments for the entire CRAC market and then uses market share data to estimate shipments for ASHRAE Standard 90.1-2019 triggered equipment classes.
DOE's shipments model first estimates the installed CRAC base stock by equipment size from information on data centers in the 2012 Commercial Business Energy Consumption Survey (CBECS).
In the September 2019 NODA/RFI, DOE assumed any building identified as having a data center in CBECS 2012 that did not have a central chiller or district chilled water system would be serviced by a CRAC. DOE assumed that a building with a central chiller or district chilled water system would use a computer room air handler (CRAH) and not a CRAC for its data center cooling, and, thus, such building was not included in the analysis.
In response to the September 2019 NODA/RFI, DOE received a number of comments on DOE's assumptions for identifying data centers that would be serviced by CRACs. AHRI stated that DOE's methodology for using server count to identify data centers could be improved by using either counts by “rack” or estimates for “kW per rack.”
For this RFI/NODA, DOE adjusted its assumptions for identifying data centers in CBECS 2012 that would utilize CRACs. DOE is unable to use rack counts or “kW per rack” to identify data centers in CBECS 2012 because this information is not recorded in the survey. CBECS 2012 provides a variable as to whether or not the building has a data center. In this RFI/NODA, DOE assumed that any building with a data center, regardless of the building's main cooling system, would use a CRAC, in order to account for the use of CRACs in edge computing centers and to align with the ASHRAE Standard 90.1 definition of a “computer room”.
After identifying buildings with data centers in CBECS 2012, DOE then estimated the CRAC cooling capacity required by estimating the total heat generated from servers, networks, and storage equipment within data centers. In the September 2019 NODA/RFI, DOE used estimates from the Lawrence Berkeley National Laboratory (LBNL) data center report to estimate average power consumption of volume servers, network equipment, and storage equipment.
In comments in the September 2019 NODA/RFI, AHRI recommended using ASHRAE Datacom Series Book 2, “IT Equipment Power Trends,” third edition, published in 2018, which shows power consumption trends for all types of IT equipment through 2026. AHRI noted that that source is what the industry uses to estimate server power, expectations of future server stock, and energy use in many different types of data centers. (AHRI, No. 7 at p. 6) Trane also suggested using the same source for projecting future server power consumption. (Trane, No. 5 at p. 2)
In this analysis, DOE used estimates for server power draw for different IT applications matched to CBECS building type based on ASHRAE Datacom Series Book 2, “IT Equipment Power Trends.”
In the September 2019 NODA/RFI, DOE calculated the cooling load for each data center by multiplying the total server power draw by the number of servers in each CBECS-identified building and then applying an oversize factor of 1.3. Research has shown that oversizing of the cooling load gives the data center operator the flexibility to add more servers (and thus more heat) without having to increase the size of the cooling system.
In response to the September 2019 NODA/RFI, Trane stated that redundant or oversized units, if used, would be closely tied to specific needs of the system they are cooling, so the commenter does not recommend using broad assumptions for CRAC oversizing. (Trane, No. 5 at p. 2) AHRI stated that DOE is likely overestimating energy use by using an oversize factor and recommended DOE not oversize equipment in its energy use analysis. (AHRI, No. 7 at p. 5) Based on information gathered by Red Car Analytics, the CA IOUs stated that oversizing factors of 20 to 30 percent are common for CRACs. (CA IOUs, No. 6 at p. 3).
In response, DOE continues to believe that oversizing is occurring in data center settings, based upon the available literature and the comment of the CA IOUs. However, DOE is taking account of other commenters' suggestions that the Department's previous oversize factor of 1.3 may have been too high. Accordingly, for this analysis, based on AHRI's and Trane's comments, DOE has adjusted the oversizing factor to 1.2, consistent with the lower estimate provided by the CA IOUs.
One ton of cooling can remove 3.5 kW of heat from a space.
The final part of the stock methodology is estimating the redundancy requirements of the data center which reduces the per-unit energy use and increases the total estimated shipment of CRACs. Redundancy varies significantly across data centers, ranging from having one extra CRAC unit (N + 1 redundancy) to having complete redundancy (2N redundancy).
In the September 2019 NODA/RFI, DOE assigned redundancy depending on the data center square footage provided in CBECS 2012. Categories 1-4 (data centers under 10,000 square feet) were given N + 1 redundancy; category 5 (greater than 10,000+ sq. ft.) was assigned 2N redundancy. DOE assumed that servers that were not in a data center do not have cooling redundancy. 84 FR 48006, 48028 (Sept. 11, 2019).
In response to the September 2019 NODA/RFI, AHRI stated that redundancy can be N + 1 or 2N, but argued that it will not be operational all the time. (AHRI, No. 7 at p. 5) Trane states that the level of redundancy is dependent on the size and need of the data center. (Trane, No. 5 at p. 2) The CA IOUs recommended DOE base the breakout between N + 1 and 2N redundancy on total load (with a cut-off of 50 cooling tons) and load density (with a cut-off of 100 watts/square foot (ft
Through a confidential data submission, AHRI provided DOE with a CRAC shipments time series from 2012-2018 and market shares broken out by the 30 Federal equipment classes. Accordingly, for this analysis, DOE calibrated the stock of CRACs in CBECS 2012 to an amount that would be equal to the number of 2012 shipments multiplied by the average lifetime of a CRAC (
In the September 2019 NODA/RFI, DOE estimated future CRAC shipments in the no-new standards case (
AHRI commented that DOE's total shipments estimates for 2012 were reasonable. (AHRI, No.7 at p. 6) However, AHRI argued that DOE estimates based on model counts in the CCMS database significantly overestimated shipments of the water-cooled and glycol-cooled equipment classes. (AHRI, No 7 at p. 3).
In this analysis, DOE used the confidential shipments data provided by AHRI to calibrate its shipment model to produce a revised breakdown by equipment class. DOE then used a stock turnover model to project shipments over the shipments analysis period assuming a constant annual growth in stock, calibrated using confidential shipments data provided by AHRI,
The AHRI market share data provided to DOE was broken out by the 30 currently defined Federal equipment classes. DOE assumed upflow market share would be evenly split between the upflow ducted and upflow non-ducted equipment classes. As the AHRI data does not include market share for horizontal-flow, ceiling-mounted, and air-cooled with fluid economizer CRAC equipment classes, DOE was unable to disaggregate savings for these classes.
DOE based shipments estimates for air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment on the model developed for the July 2015 final rule. 80 FR 42614, 42629-42630 (July 17, 2015). As explained more fully in that document, shipments projections in the July 2015 final rule relied on four data sources: A 1999 estimate of shipments from the 2000 Screening Analysis for EPACT-Covered Commercial HVAC and Water-Heating Equipment (EERE-2006-STD-0098-0015), data from the U.S. Census Bureau for central AC and HP shipments (for both single-phase and three-phase equipment),
In the current analysis, DOE updated the shipments model in two ways: (1) The shipments estimates from 2012-2018 were updated using the growth rates from the most recent AHRI data,
The no-new-standards case efficiency distribution is used to establish the market share of each efficiency level in the case where there is no new or amended standard. DOE is unaware of available market data that reports CRAC efficiency in terms of NSenCOP that can be used to determine the no-new-standards case efficiency distribution. For this analysis, DOE relied on DOE's Compliance Certification Database for CRACs which reports efficiency in terms of SCOP. DOE applied the crosswalk methodology discussed in section II.A.1 of this document to translate each model's reported SCOP into NSenCOP.
DOE estimated the no-new-standards case efficiency distribution for each CRAC equipment class using model counts from DOE's Compliance Certification Database.
For air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment, DOE estimated the market share of equipment at the current Federal baseline and the ASHRAE efficiency level using DOE's Compliance Certification Database. Table III-6 and Table III-7 show the model counts and their percentage by the Federal or the ASHRAE Standard 90.1-2019 efficiency level. The fraction of the market that meets or exceeds the ASHRAE Standard 90.1-2019 level is attributed to the ASHRAE Standard 90.1-2019 level.
For assessing the energy savings potential of adopting ASHRAE Standard 90.1-2019 levels, DOE assumed shipments at the Federal baseline efficiency would most likely roll up to the ASHRAE Standard 90.1-2019 level.
DOE defines “equipment lifetime” as the age at which a unit is retired from service. For the September 2019 NODA/RFI, DOE used a 15-year lifetime for all CRAC equipment classes based on the lifetime used in the May 2012 final rule. 84 FR 48006. 48030 (Sept. 11, 2019) (
For the other set of equipment under consideration, DOE based equipment lifetime on a retirement function in the form of a Weibull probability distribution in its analysis of air-cooled, three-phase, small commercial package AC and HP (<65 K). A Weibull distribution is a probability distribution function that is commonly used to measure failure rates. Its form is similar to an exponential distribution, which would model a fixed failure rate, except that it allows for a failure rate that changes over time. DOE used a mean lifetime of 19 years for air conditioners and 16.2 years for heat pumps. These are the same values that were used in the July 2015 final rule. 80 FR 42614, 42627 (July 17, 2015).
If DOE were to prescribe energy conservation standards at the efficiency levels contained in ASHRAE Standard 90.1-2019, EPCA states that any such standard shall become effective on or after a date that is two or three years (depending on the equipment type or size) after the effective date of the applicable minimum energy efficiency requirement in the amended ASHRAE standard. (42 U.S.C. 6313(a)(6)(D)).
ASHRAE Standard 90.1-2019 does not list an effective date for CRAC levels. For estimating the energy savings potential of adopting ASHRAE Standard 90.1-levels, DOE assumed a compliance date of an amended Federal standard relative to the publication of ASHRAE Standard 90.1-2019 (
For air-cooled, three-phase, small commercial package AC and HP (<65 K), ASHRAE Standard 90.1-2019 maintains ASHRAE Standard 90.1-2016 levels, which are consistent with the current Federal standards, until January 1, 2023, after which levels are changed, triggering DOE's review. DOE assumed a compliance date of an amended Federal standard relative to the effective date of January 1, 2023.
If DOE were to prescribe standards more stringent than the efficiency levels contained in ASHRAE Standard 90.1-2019, EPCA dictates that any such standard will become effective for equipment manufactured on or after a date which is four years after the date of publication of a final rule in the
For purposes of calculating the national energy savings (NES) for the equipment in this evaluation, DOE used a 30-year analysis period starting with the assumed year of compliance listed in Table III-8 for equipment analyzed in this NODA/RFI. This is the standard analysis period of 30 years that DOE typically uses in its NES analysis. For equipment classes with a compliance date in the last six months of the year, DOE starts its analysis period in the first full year after compliance. For example, if CRACs less than 65,000 Btu/h were to have a compliance date of October 23, 2021, the analysis period for calculating NES would begin in 2022 and extend to 2051.
DOE estimated the potential site, primary, and full-fuel-cycle (FFC) energy savings in quads (
EPCA requires DOE to establish an amended uniform national standard for equipment classes at the minimum level specified in the amended ASHRAE Standard 90.1 unless DOE determines, by rule published in the
For CRACs, further energy savings analysis would rely on market efficiency data in terms of the analyzed metric (
An estimation of energy savings potentials of energy efficiency levels more stringent than the amended ASHRAE Standard 90.1 levels would require developing efficiency data for the entire market in terms of the NSenCOP metric. This much broader crosswalk would require DOE to translate the individual SCOP ratings to NSenCOP ratings for all models certified
For air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment, ASHRAE Standard 90.1-2019 amended the applicable metric, and the amended standards that rely on the updated metric are intended to apply in 2023. As with the amended CRAC standards, DOE was required to conduct a crosswalk to compare the stringency levels of the Federal standards and the amended ASHRAE Standard 90.1-2019 efficiency levels to determine whether its obligation under EPCA to adopt amended ASHRAE Standard 90.1 efficiency levels was triggered. (42 U.S.C. 6313(a)(6)(A)(i)).
As with an analysis of the CRAC standards amended by ASHRAE Standard 90.1-2019, an analysis of standard levels more stringent than the amended standards in ASHRAE Standard 90.1 for air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment) would require DOE to crosswalk the entire market for this equipment. As noted, the amended ASHRAE Standard 90.1-2019 levels for air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment rely on updated metrics (
As discussed in the October 2018 TP RFI for air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment, such equipment is essentially identical to its single-phase residential counterparts, is manufactured on the same production lines, and is physically identical to their corresponding single-phase central air conditioner and heat pump models (with the exception of the electrical systems and compressors). 83 FR 49501, 49504 (Oct. 2, 2018). Single-phase central air conditioners are subject to new Federal standards based on SEER2 and HSPF2 beginning January 1, 2023. 10 CFR 430.32(c)(5)-(6). Currently, manufacturers are permitted to make representations under the SEER2 and HSPF2 representations metrics only if they certify to compliance to the 2023 standards. As a result, there is a lack of SEER2 and HSPF2 data available for single-phase central air conditioners and central air conditioning heat pumps, which if available may have provided for a certain level of assessment of the air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment market.
The market for air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment has not responded to the change in the metrics, particularly given that ASHRAE Standard 90.1-2019 does not specify use of SEER2 and HSPF2 until 2023. Likewise, the closely related single-phase market has not yet fully responded to the amended Federal metrics and standards, for which manufacturers are not required to comply until 2023. Given the change in metrics and the future compliance dates of the ASHRAE Standard 90.1-2019 amendments, and the comparable changes to the Federal requirements for the closely related single-phase market, determination of max-tech levels and projections of market distribution according to efficiency levels have an increased degree of uncertainty.
As noted previously, EPCA provides that in order to adopt a standard more stringent than an amended ASHRAE Standard 90.1, DOE must determine, by rule published in the
The lack of market data and the uncertainties in the market and technology projections regarding energy efficiency levels under the new metrics for CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment create substantial doubt in any analysis of energy savings that would result from efficiency levels more stringent than the amended ASHRAE Standard 90.1-2019 levels for this equipment. Regardless of the results of any such analysis, the degree of uncertainty would create substantial doubt as to whether a standard more stringent than the ASHRAE Standard 90.1-2019 amendment would result in a significant additional amount of energy savings as required for DOE to establish more-stringent standards. As a result, DOE did not conduct an analysis of any associated energy savings for more-stringent standards for the subject equipment in this document.
As discussed, DOE is required to conduct an evaluation of each class of covered equipment in ASHRAE Standard 90.1 every 6 years. (42 U.S.C. 6313(a)(6)(C)(i)) Accordingly, DOE is also evaluating the remaining 6 CRAC equipment classes and 8 air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment classes for which ASHRAE Standard 90.1-2019 did not increase the stringency of the standards. As explained in the February 2020 final rule updating DOE's Process Rule, EPCA applies the “clear and convincing” evidentiary threshold to both ASHRAE “trigger” and 6-year-lookback rulemakings. 85 FR 8626, 8647 (Feb. 14, 2020). Thus, when conducting a six-year look-back review, DOE may establish a uniform national standard more stringent than the corresponding ASHRAE Standard 90.1 level only upon a determination, supported by clear and convincing evidence, that such an amended Federal standard would result in significant additional conservation of
The 6 equipment classes of CRACs and 8 equipment classes of air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment suffer from the same lack of data and market uncertainties resulting from the metric changes and future compliance dates as with the equipment classes for which DOE was triggered, as discussed in section III.F of this document. As such, any analysis of energy efficiency standards more stringent than the current levels would be subject to a degree of uncertainty that would create substantial doubt as to whether a standard more stringent than the current Federal standard would result in a significant additional amount of energy savings as required for DOE to establish more-stringent standards. Because DOE does not have sufficient data to meet the “clear and convincing” threshold, DOE did not conduct an energy savings analysis of standard levels more stringent than the current Federal standard levels for CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment that were not amended in ASHRAE Standard 90.1-2019. See section III.F of this notice for further discussion of the consideration of energy efficiency levels more stringent than the ASHRAE Standard 90.1-2019 levels.
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DOE welcomes comments on any aspect of this document for CRAC and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment classes where ASHRAE Standard 90.1-2019 increased stringency (thereby triggering DOE's review of amended standards) and for CRAC and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment classes undergoing 6-year-lookback review.
In the preceding sections, DOE has identified a variety of issues on which it seeks input to aid in the development of the technical and economic analyses regarding whether amended standards for CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment may be warranted. DOE notes that under Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” Executive Branch agencies such as DOE are directed to manage the costs associated with the imposition of expenditures required to comply with Federal regulations.
In the field of economics, a market failure is a situation in which the market outcome does not maximize societal welfare. Such an outcome would result in unrealized potential welfare. DOE welcomes comment on any aspect of market failures, especially those in the context of amended energy conservation standards for CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment.
DOE recently published an RFI on the emerging smart technology appliance and equipment market. 83 FR 46886 (Sept. 17, 2018). In that RFI, DOE sought information to better understand market trends and issues in the emerging market for appliances and commercial equipment that incorporate smart technology. DOE's intent in issuing the RFI was to ensure that DOE did not inadvertently impede such innovation in fulfilling its statutory obligations in setting efficiency standards for covered products and equipment. DOE seeks comments, data, and information on the issues presented in the NODA/RFI as they may be applicable to CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment.
In addition to the issues identified earlier in this document, DOE welcomes comment on any other aspect of energy conservation standards for CRACs and air-cooled, three-phase, small commercial package AC and HP (<65 K) equipment not already addressed.
To summarize the specific issues identified in this NODA/RFI, DOE is particularly interested in receiving comments and views of interested parties concerning the following topics, listed by equipment category:
The Secretary of Energy has approved publication of this notice of data availability and request for information.
This document of the Department of Energy was signed on August 21, 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