Animal and Plant Health Inspection Service
Commodity Credit Corporation
Foreign Agricultural Service
Census Bureau
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Food and Drug Administration
National Institutes of Health
Federal Emergency Management Agency
Transportation Security Administration
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
Employment and Training Administration
Federal Aviation Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Natural Resources Conservation Service (NRCS) and the Commodity Credit Corporation (CCC), United States Department of Agriculture (USDA).
Final rule.
This final rule adopts, with minor changes, an interim rule published in the
Michael Whitt; phone: (202) 690-2267; or email:
On December 17, 2019, NRCS published an interim rule with request for comments in the
Through EQIP, NRCS incentivizes agricultural producers to conserve and enhance soil, water, air, plants, animals (including wildlife), energy, and related natural resources on their land. EQIP promotes agricultural production, forest management, and environmental quality as compatible goals, and optimizes environmental benefits by assisting producers in addressing resource concerns on their operations. EQIP also helps agricultural producers meet Federal, State, and local environmental requirements and avoid the need for new requirements.
Eligible lands include cropland, grassland, rangeland, pasture, wetlands, nonindustrial private forest land, and other land on which agricultural or forest-related products or livestock are produced and natural resource concerns may be addressed. Participation in EQIP is voluntary.
The Secretary of Agriculture delegated authority to the Chief, NRCS, to administer EQIP on behalf of CCC.
The interim rule:
• Incorporated the addition of new or expected resource concerns to EQIP program purposes, adapting to and mitigating against increasing weather volatility, and drought resiliency measures.
• Amended how EQIP interacts with the Regional Conservation Partnership Program (RCPP) since RCPP is now a stand-alone program.
• Amended some definitions and added others to address changes made by the 2018 Farm Bill, including—
○ Animal feeding operation (AFO);
○ Eligible land;
○ Estimated income foregone;
○ Forest management plan;
○ High priority area;
○ Incentive practice;
○ Priority resource concern;
○ Semipublic;
○ Soil remediation;
○ Soil testing; and
○ Water management entity (WME).
• Added “increased weather volatility” as a resource concern under the national priorities identified in the regulation.
• Added to outreach responsibilities the requirement to notify historically underserved producers about the availability to elect to receive advance payments.
• Addressed EQIP contract provisions associated with WMEs and certain water conservation projects.
• Removed the requirement that a participant must implement and develop a comprehensive nutrient management plan (CNMP) by the end of the contract and replaced it with the following: Any conservation practices in the EQIP plan of operation must be implemented consistent with a CNMP.
• Incorporated the ability to waive the $450,000 regulatory contract limitation and establish a $900,000 regulatory contract limitation for certain projects with joint operations, group projects, or contracts where NRCS has waived the payment limitation for a WME.
• Increased payment rates for certain high-priority practices and increased payment rates for practices that address source water protection.
• Updated the statutory payment limitations for general EQIP contracts and contracts entered into under the National Organic Initiative.
• Clarified provisions related to contract administration, including procedures for contract modification and termination.
• Relocated provisions related to administration of Conservation Innovation Grants (CIGs) to its own subpart and incorporated the addition of On-farm Conservation Innovation Trials (On-farm Trial), which include the Soil Health Demonstration (SHD) Trial.
• Added a new subpart to address EQIP incentive contracts, which are a new enrollment option created by section 2304 of the 2018 Farm Bill.
• Relocated the General Administration provisions from subpart C to a new subpart E and updated language addressing environmental markets to reflect changes made by the 2018 Farm Bill.
The interim rule had a 60-day comment period ending February 18, 2020. NRCS received 598 comments from 197 commenters in response to the rule. In addition, one organization submitted a spreadsheet with 12,852 comments. NRCS reviewed these comments and categorized and
In this rule, the comments have been organized in alphabetic order by topic. The topics include:
• Administration;
• Advance payments;
• Applicability;
• CIG—On-farm Trials, Other, and SHD Trials;
• Conservation Practices—High Priority Practices, Incentive Practices, Other, Prairie Pothole Wildlife Practice, Soil Health, and Source Water Protection;
• Contract Administration;
• Contract Limits Unrelated to WMEs;
• Contract Requirements;
• Contracts with WMEs—Adjusted Gross Income (AGI) and Payment Limitation Waiver, Land Eligibility Criteria, and Other;
• Definitions—Eligible Land, High Priority Area, Priority Resource Concern, Soil Testing, and WMEs;
• Eligibility;
• Environmental Assessment;
• EQIP Plan of Operations—Comprehensive Nutrient Management Plan;
• Fund Allocations;
• General;
• Incentive Contracts—Selection Criteria;
• National Priorities;
• Outreach Activities;
• Payment Limits;
• Payment Rates; and
• Ranking.
Of the 598 comments raised by the 197 commenters, 47 were general in nature and most expressed support for EQIP or how EQIP has benefitted particular operations. NRCS also received 21 comments that were not relevant to the EQIP interim rule. Seven comments criticized the regulation for not strengthening EQIP's impact on climate resilience or soil health. Six comments requested NRCS technical assistance for existing and potential projects. Several of these comments conveyed frustration with the process or specific working relationships. NRCS is committed to providing the highest quality service to its customers and partners, and these comments have been forwarded to the appropriate staff.
In general, comments focusing on topics that were outside the scope of the regulation will not be addressed. In response to the request that public comment be submitted through email, NRCS reminds the public that all comments should be submitted to the agency dockets on
NRCS also received 24 comments that expressed nonspecific dissatisfaction with EQIP or the interim rule and 47 comments that supported EQIP or the interim rule. These comments do not include any recommendations for change. This final rule responds to the comments received by the public comment deadline and makes minor clarifying and related changes.
Regarding the overall process of additional soil health conservation practice options, NRCS follows a formal process to review each national conservation practice standard at least once every 5 years from its date of issuance or review. Interim conservation practice standards serve as mechanisms for field testing new technology. Interim conservation practices that prove successful are either developed into national conservation practice standards or incorporated into existing practice standards, as appropriate. States may modify national practice standards to meet State or local needs.
The National Technical Guide Committee publishes a notice in the
The NRCS Conservation Practice Standard Cover Crop (Code 340) provides guidance for grazing cover crops. Grazing of cover crops may be permitted depending on such factors as the soil condition and growth state of the cover crop. When addressing conditions such as soil health and organic matter content, cover crop species will be selected on the basis of producing higher volumes of organic material and root mass to maintain or increase soil. Grazing must not cause negative impact to the site (for example, erosion or compaction).
No change is being made to the regulation in response to these issues.
While the higher contract limit does not relate specifically to CAFOs, the comment associated CAFOs with joint operations and the availability of higher levels of program assistance. Comment also recommended that EQIP not fund CAFOs at all.
To address concerns related to large contracts with joint operations, NRCS in 2009 imposed a regulatory contract limit that corresponded with the EQIP payment limit. The 2009 interim rule did not adjust the contract limit for joint operations, and this system was maintained in the EQIP regulation through the 2014 Farm Bill. The $450,000 limit does not, therefore, represent a change to EQIP brought about in the 2019 interim rule.
To clarify, the overall program payment limitation may not be waived. No member of a joint operation may receive more than $450,000 in payment through EQIP for program years 2019 through 2023. But, when a joint operation consisting of two or more members enters into an EQIP contract, the EQIP contract with the joint operation may receive funding of up to $900,000. EQIP is using this flexibility to help streamline contract administration for these types of arrangements. Unlike the Conservation Stewardship Program (CSP), EQIP does not require enrollment of the entire operation. Each operation may receive multiple contracts for EQIP; therefore, the purpose of contract limits in EQIP differs from that in CSP.
No change is being made to the regulation in response to these issues.
Regarding publicly-owned land, NRCS considers whether the land is within the applicant's control (in other words, that the applicant can implement the terms of the EQIP contract), whether the land is a working component of the producer's agricultural or forestry operation (for example, that the producer uses the land for grazing), and whether conservation practices to be implemented on the public land are necessary and will contribute to an improvement in the identified resource concern. If all three criteria are met, the land may be eligible.
Religious organizations are not excluded from eligibility. A legal entity organized under IRC Section 501(d) meets the definition of legal entity in § 1466.3 provided it owns land or an agricultural commodity, product, or livestock or produces an agricultural commodity, product, or livestock.
An eligible entity for the purposes of On-farm Trials includes a third-party private entity, the primary business of which is related to agriculture. This includes organizations that conduct business related to conservation on agricultural lands.
No change is being made to the regulation in response to this issue.
Comment also indicated that data collection is a key input to assessing environmental impact, suggesting that NRCS incentivize producer participation in third-party data collection services to track environmental benefits of conservation practices.
Other comment addressed the funding allocation for livestock practices, including disapproval of the statutory change from 60 percent to 50 percent, opinion that the 50 percent mandate was far too high, and request about how the national mandate is implemented on a State-by-State basis.
Comment also addressed other fund allocation topics as follows:
• Concern over whether NRCS was making equitable allocations to States by citing a 2017 U.S. Government Accountability Office report suggesting that NRCS was using historical allocation data rather than seeking to optimize environmental benefits.
• Recommendation to create a national initiative for targeted funding for small-scale operations based on existing State-level initiatives.
• Concern that allocations of funds to WMEs would take conservation dollars away from producers, so they requested that NRCS add language ensuring that producers would be the ultimate beneficiaries of EQIP funding for contracts with WMEs.
• Note that Congress did not want contracts with irrigation districts to adjust State funding allocations.
• Suggestion that contracts with WMEs should increase allocations for western States.
• Request that NRCS link funding allocations to accountability mechanisms so that activities with limited conservation benefits are not funded.
State technical committees and local work groups, with the knowledge and expertise of their members, also provide additional sources of data and information. Their membership includes leaders in agriculture, conservation, producers, and other stakeholders and their input provides a means of ensuring EQIP allocations are made according to the resource concern, targeted to the local conditions, and relevant to and contributing to national resource priorities. These State and local sources provide valuable information and data on environmental concerns not otherwise available, thus giving allocation decisions far more depth and granularity. The State technical committee regulation and standard operating procedures address this process and thus no change is being made to the EQIP regulation in response to this issue.
NRCS tracks EQIP investment and performance. In addition to the 2018 Farm Bill's emphasis on reporting EQIP outcomes, the agency has an interest in understanding the impact of the statutory increase of the wildlife allocation from 5 to 10 percent. Regarding publicly available reports, the Soil and Water Resources Conservation Act (RCA) provides broad natural resource strategic assessment and planning authority for USDA. Information about NRCS's conservation programs at the State, regional, and national level, is available on the RCA interactive data viewer (
No changes have been made to the regulation in response to these comments.
The 2018 Farm Bill's introduction of EQIP incentive contracts provides a new option for participation. In § 1466.44 of the interim rule NRCS established criteria for incentive payments, including establishing a regulatory $200,000 payment limit similar to CSP, and ensuring that incentive contracts support a participant's ability to transition to CSP eligibility. While there were no comments submitted that opposed the $200,00 payment limit in this section, NRCS may consider setting
No change is being made to the regulation in response to this issue.
State Conservationists, in consultation with State technical committees, determine how many extra points to provide CRP-TIP in ranking. NRCS is committed to protecting CRP-TIP land in transition to a covered farmer or rancher and has incorporated this statutory priority in this final rule by adding language to §§ 1466.1 and 1466.20(b). No other changes are made to the regulation in response to this issue.
In general, the Administrative Procedure Act (APA) (5 U.S.C. 553) requires that a notice of proposed rulemaking be published in the
• To be made as an interim rule effective on publication, with an opportunity for notice and comment,
• Exempt from the Paperwork Reduction Act (44 U.S.C. ch. 35), and
• To use the authority under 5 U.S.C. 808 related to Congressional review.
Consistent with the use of the authority under 5 U.S.C. 808 related to Congressional review for the immediate effect date of the interim rule, this rule is also effective on the date of publication in the
Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The requirements in Executive Orders 12866 and 13573 for the analysis of costs and benefits apply to rules that are determined to be significant. Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” established a Federal policy to alleviate unnecessary regulatory burdens on the American people.
The Office of Management and Budget (OMB) designated this rule as economically significant under Executive Order 12866, and therefore, OMB has reviewed this rule. The costs and benefits of this rule are summarized below in the next section of this rule. The full regulatory impact analysis is available on
Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” requires that, to manage the private costs required to comply with Federal regulations for every new significant or economically significant regulation issued, the new costs must be offset by the savings from deregulatory actions. This rule involves transfer payments and is not required to comply with Executive Order 13771.
In general response to the requirements of Executive Order 13777, USDA created a Regulatory Reform Task Force, and USDA agencies were directed to remove barriers, reduce burdens, and provide better customer service both as part of the regulatory reform of existing regulations and as an on-going approach. NRCS reviews regulations and makes changes to improve any provision that was determined to be outdated, unnecessary, or ineffective.
Most of this rule's impacts consist of transfer payments to producers for completed conservation practices under EQIP contracts. There are also costs and benefits, which are described after a discussion of the transfers. The 2018 Farm Bill increases EQIP funding over 2014 Farm Bill funding by 15 percent on average to $1.84 billion per year. From FY 2014 through 2018, EQIP was authorized at $8.0 billion, but annual funding restrictions resulted in actual authority being $7.51 billion, for an
NRCS recognizes that a participant incurs costs in gaining access to EQIP. These costs are in addition to the participant's share of the cost of implementing conservation activities under EQIP. NRCS estimates the total cost of accessing the program over 5 years to be $17.7 million. The cost to participants of implementing conservation practices over 5 years is estimated at $4.46 billion and total transfers (NRCS funds) over 5 years are estimated at $9.18 billion. Given a 3 percent discount rate, this translates into a projected annualized real cost to producers for implementing conservation practices of $855.10 million and projected annualized real transfers of $1.76 billion (Table 1). In addition, participants incur $3.5 million in access costs in nominal terms.
The costs associated with this rule consist of the administrative costs of applying for EQIP funding and are described in the full regulatory impact analysis. The benefits of this rule are the environmental improvements that are due to the increased conservation practices over and above those that farmers privately undertake. Conservation practices funded through EQIP will continue to: Contribute to improvements in soil health and reductions in water and wind erosion on cropland, pasture and rangeland; reduce nutrient losses to streams, rivers, lakes and estuaries; increase wildlife habitat; and provide other environmental benefits. Further, continued implementation of practices which treat and manage animal waste through EQIP will directly contribute to improvements in water quality and improvements in air quality (such as reduced risk of algal blooms or reduction in methane emissions, respectively). NRCS estimates that the expenditures, from both public and private sources, of implementing EQIP conservation practices will be $13.6 billion dollars (FY 2019 through 2023), assuming a historical average participant cost of 40 percent and a technical assistance share of 27 percent.
Changes in funding levels for EQIP livestock and wildlife practices will alter to a minor extent the types of conservation practices that are funded. From FY 2014 through 2018, wildlife practices accounted for 7.6 percent of EQIP funds through wildlife and landscape initiatives and 16 designated wildlife conservation practices. The 2.4 percent increase in funding for wildlife to meet the new 10 percent level will likely occur through greater support for existing wildlife initiatives and may target additional wildlife habitat development efforts through new initiatives. With respect to livestock, over 60 percent of EQIP funds went to livestock-related practices during FY 2014 through 2018, but the 2018 Farm Bill reduced this target to 50 percent for each of fiscal years 2019 through 2023. With greater EQIP funding overall, the amount of funding being provided for the implementation of livestock conservation practices should not change significantly.
To address increasing demands on the nation's water supply, the 2018 Farm Bill expands EQIP eligibility to WMEs like irrigation districts, ground water management districts, and acequias, along with providing the Secretary with the authority to waive AGI and payment limits to encourage continued efforts in agricultural water conservation. In some states, particularly in the West, these WMEs may increase competition for funding and enhance conservation benefits per dollar spent. The impacts, however, on the allocation of EQIP funding will be limited. The 2018 Farm Bill directs NRCS to maintain current funding allocations to states, limiting the impact nationally. Also, NRCS in the interim rule established a payment limit of $900,000 on all contracts with WMEs.
The 2018 Farm Bill establishes conservation incentive contracts to address up to three priority resource concerns for each land use within a given watershed, or other region, or area. Contracts will range from a minimum of 5 years to up to 10 years in length and provide an annual payment and incentive practice payments. NRCS has established a payment limit of $200,000 to align with CSP. The impact of these new conservation incentive contracts is uncertain, particularly regarding benefits per dollar. Overall, given the current demand for regular enrollment in EQIP, and the currently uncertain impacts that conservation incentive contracts will have, the aggregate benefits from these new conservation incentive contracts may be limited.
Increasing the payment limit for participants in the organic initiative to $140,000 over the period FY 2019 through 2023, will likely have little impact on EQIP performance. This is because existing organic initiative contracts are usually well below the existing multi-year payment limit of $80,000 set by 2014 Farm Bill. Currently, organic participants who exceed the organic initiative payment limit use other EQIP funding mechanisms. The increase in the organic initiative limit to $140,000 may attract producers who have higher organic practice costs or perhaps larger operations, and EQIP participants may make greater use of the organic initiative and designated funding pool.
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory analysis of any rule whenever an agency is required by APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because this rule is exempt from notice and comment rulemaking requirements of the APA and no other law requires that a proposed rule be published for this rulemaking initiative.
The environmental impacts of this rule have been considered in a manner consistent with the provisions of NEPA (42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR 1500 through 1508), and the NRCS regulations for compliance with NEPA (7 CFR part 650). NRCS conducted an analysis of the EQIP interim rule, which determined there will not be a significant impact to the human environment and as a result, an environmental impact statement (EIS) is not required to be prepared (40 CFR 1508.1(l)). The 2018 Farm Bill requires minor changes to NRCS conservation programs, and there are no
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance and direct Federal development. For reasons specified in the final rule-related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the program and activities in this rule are excluded from the scope of Executive Order 12372.
This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. Before any judicial actions may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 are to be exhausted.
This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on 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, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires federal agencies to consult and coordinate with Tribes on a Government-to-Government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
The USDA's Office of Tribal Relations (OTR) has assessed the impact of this rule on Indian Tribes and determined that this rule does not, to their knowledge, have Tribal implication that require Tribal consultation under Executive Order 13175. Tribal consultation for this rule was included in the two 2018 Farm Bill Tribal consultations held on May 1, 2019, at the National Museum of the American Indian, in Washington, DC, and on June 26-28, 2019, in Sparks, NV. For the May 1, Tribal consultation, the portion of the Tribal consultation relative to this rule was conducted by Bill Northey, USDA Under Secretary for the Farm Production and Conservation mission area, as part of the Title II session. There were no specific comments from Tribes on the EQIP rule during the Tribal consultation. If a Tribe requests consultation, NRCS will work with OTR to ensure meaningful consultation is provided where changes, additions, and modifications identified here in this rule are not expressly mandated by legislation. OTR has determined that Tribal consultation for this rule is not required at this time.
Separate from Tribal consultation, communication, and outreach efforts are in place to assure that all producers, including Tribes (or their members), are provided information about the regulation changes. Specifically, NRCS obtains input through Tribal Conservation Advisory Councils. A Tribal Conservation Advisory Council may be an existing Tribal committee or department and may also constitute an association of member Tribes organized to provide direct consultation to NRCS at the State, regional, and national levels to provide input on NRCS rules, policies, programs, and impacts on Tribes. Tribal Conservation Advisory Councils provide a venue for agency leaders to gather input on Tribal interests. Additionally, NRCS held several sessions with Indian Tribes and Tribal entities across the country in FY 2019 to describe the 2018 Farm Bill changes to NRCS conservation programs, obtain input about how to improve Tribal and Tribal member access to NRCS conservation assistance, and make any appropriate adjustments to the regulations that will foster such improved access. NRCS will continue to conduct these sessions with Indian Tribes and Tribal entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4), requires federal agencies to assess the effects of their regulatory actions on State, local, and Tribal Governments or the private sector. Agencies generally must prepare a written statement, including cost-benefits analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local or Tribal Governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined under Title II of UMRA, for State, local, and Tribal Governments or the private sector. Therefore, this rule is not subject to the requirements of UMRA.
The title and number of the Federal Domestic Assistance Programs in the Catalog of Federal Domestic Assistance to which this rule applies:
10.912—Environmental Quality Incentives Program.
NRCS and CCC are committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Administrative practice and procedure, Animal welfare, Natural resources, Soil conservation, Water resources.
Accordingly, for the reasons stated above, the interim rule amending 7 CFR part 1466, which was published at 84
15 U.S.C. 714b and 714c; and 16 U.S.C. 3839aa-3839-8.
(a) * * *
(2) Through EQIP, NRCS provides technical and financial assistance to eligible agricultural producers, including nonindustrial private forest (NIPF) landowners and Indian Tribes, to help implement conservation practices that address resource concerns related to organic production; soil, water, and air quality; wildlife habitat; nutrient management associated with crops and livestock; pest management; ground and surface water conservation; irrigation management; drought resiliency measures; adapting to and mitigating against increasing weather volatility; energy conservation; and related resource concerns.
(3) EQIP's financial and technical assistance helps:
(i) Producers comply with environmental regulations and enhance agricultural and forested lands in a cost-effective and environmentally beneficial manner; and
(ii) To the maximum extent practicable, avoid the need for resource and regulatory programs.
(4) The purposes of EQIP are achieved by planning and implementing conservation practices on eligible land to address identified, new, or expected resource concerns, including such resource concerns related to lands enrolled under a Conservation Reserve Program contract that are transitioning into production as specified in 16 U.S.C. 3835(f).
(a) The national priorities in paragraphs (a)(1) through (8) of this section, consistent with statutory resources concerns, include soil quality, water quality and quantity, plants, energy, wildlife habitat, air quality, increased weather volatility, and related natural resource concerns, that may be used in EQIP implementation are:
(1) Reductions of nonpoint source pollution, such as nutrients, sediment, pesticides, or excess salinity in impaired watersheds consistent with total maximum daily loads (TMDL) where available;
(2) The reduction of ground and surface water contamination;
(3) The reduction of contamination from agricultural sources, such as animal feeding operations;
(4) Conservation of ground and surface water resources, including improvement of irrigation efficiency and increased resilience against drought and weather volatility;
(5) Reduction of emissions, such as particulate matter, nitrogen oxides, volatile organic compounds, and ozone precursors and depleters that contribute to air quality impairment violations of the National Ambient Air Quality Standards;
(6) Reduction in soil erosion and sedimentation from unacceptable levels and improvement of soil health on eligible land;
(7) Promotion of at-risk species habitat conservation including development and improvement of wildlife habitat; and
(8) Energy conservation to help save fuel, improve efficiency of water use, maintain production, and protect soil and water resources by more efficiently using fertilizers and pesticides.
(d) * * *
(1) Notwithstanding paragraphs (b) and (c) of this section, NRCS may enter into an EQIP contract with a water management entity provided the criteria in paragraphs (d)(1)(i), (ii), and (iii) of this section can be met:
(i) The entity is a public or semipublic agency or organization,
(ii) Its purpose is to assist private agricultural producers manage water distribution or conservation systems, and
(iii) The water conservation or irrigation practices support a water conservation project under § 1466.20(c) that will effectively conserve water, provide fish and wildlife habitat, or provide for drought-related environmental mitigation, as determined by the Chief.
(d) If an EQIP plan of operations includes an animal waste storage or treatment facility to be implemented on an AFO, the participant must agree to:
(1) Develop a CNMP by the end of the contract period; and
(2) Implement any applicable conservation practices in the EQIP plan of operation consistent with an approved CNMP.
The addition reads as follows:
(b) * * *
(2) * * *
(ix) The land is enrolled under a CRP contract transitioning to a covered farmer or rancher as specified in 16 U.S.C. 3835(f); and
(a) The purpose of Conservation Innovation Grants (CIG) is to stimulate the development and adoption of innovative conservation approaches and technologies, including field research, while leveraging Federal investment in environmental enhancement and protection in conjunction with agricultural production. Notwithstanding any limitation of this part, NRCS administers CIG in accordance with this subpart. Unless otherwise provided for in this subpart, grants under CIG are subject to the provisions of 2 CFR part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
(c)
(1) An historically underserved producer;
(2) A community-based organization comprised of, representing, or exclusively working with historically underserved producers on a CIG project;
(3) Developing an innovative conservation approach or technology specifically targeting historically underserved producers' unique needs and limitations; or
(4) An 1890 or 1994 land grant institution (7 U.S.C. 3222
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends VHF Omnidirectional Range (VOR) Federal airway V-63 due to the planned decommissioning of the VOR portion of the Texoma, OK, VOR/Distance Measuring Equipment (VOR/DME) navigation aid (NAVAID). The Texoma VOR provides navigation guidance for a portion of V-63 and is being decommissioned as part of the FAA's VOR Minimum Operational Network (MON) program.
Effective date 0901 UTC, December 31, 2020. The Director of the Federal Register approves this incorporation by reference action under Title 1 Code of Federal Regulations part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11E, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Colby Abbott, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.
The FAA published a notice of proposed rulemaking for Docket No. FAA-2020-0505 in the
VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11E dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document will be subsequently published in the Order.
This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the
The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 to modify VOR Federal airway V-63 due to the planned decommissioning of the VOR portion of the Texoma, OK, VOR/DME. The VOR Federal airway action is described below.
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action of modifying VOR Federal airway V-63 due to the planned decommissioning of the VOR portion of the Texoma, OK, VOR/DME NAVAID qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
From Razorback, AR; Springfield, MO; Hallsville, MO; Quincy, IL; Burlington, IA; Moline, IL; Davenport, IA; Rockford, IL; Janesville, WI; Badger, WI; to Oshkosh, WI. From Wausau, WI; Rhinelander, WI; to Houghton, MI. Excluding that airspace at and above 10,000 feet MSL from 5 NM north to 46 NM north of Quincy, IL, when the Howard West MOA is active.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends VHF Omnidirectional Range (VOR) Federal airways V-5 and V-178 in the vicinity of New Hope, KY, and removes V-513 in its entirety. The amendments are due to the planned decommissioning of the VOR portion of the New Hope, KY (EWO), VOR/Distance Measuring Equipment (VOR/DME) navigation aid (NAVAID) which provides navigation guidance for portions of the affected airways. The New Hope VOR is being decommissioned as part of the FAA's VOR Minimum Operational Network (MON) program.
Effective date 0901 UTC, December 31, 2020. The Director of the Federal Register approves this incorporation by reference action under Title 1 Code of Federal Regulations part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11E, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Colby Abbott, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as necessary to preserve
The FAA published a notice of proposed rulemaking (NPRM) for Docket No. FAA-2020-0497 in the
Subsequent to the NPRM, the FAA published a rule for Docket No. FAA-2020-0188 in the
VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11E dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document will be subsequently published in the Order.
This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the
The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 to modify VOR Federal airways V-5 and V-178, and remove V-513. The planned decommissioning of the VOR portion of the New Hope, KY, VOR/DME has made this action necessary. The VOR Federal airway actions are described below.
The NAVAID radials contained in the VOR Federal airway descriptions below are unchanged and stated in True degrees.
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action of amending VOR Federal airways V-5 and V-178, and removing V-513, due to the planned decommissioning of the VOR portion of the New Hope, KY, VOR/DME NAVAID, qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
From Pecan, GA; Vienna, GA; Dublin, GA; Athens, GA; INT Athens 340° and Electric City, SC, 274° radials; INT Electric City 274° and Choo Choo, TN, 127° radials; to Choo Choo. From Louisville, KY; Cincinnati, OH; to Appleton, OH.
From Hallsville, MO; INT Hallsville 183° and Vichy, MO, 321° radials; Vichy; to Farmington, MO. From Lexington, KY; to Bluefield, WV.
Environmental Protection Agency (EPA).
Final rule and correcting amendments.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of New Hampshire that addresses the infrastructure requirements of the Clean Air Act (CAA or Act), excluding the interstate transport provisions, for the 2015 ozone National Ambient Air Quality Standards (NAAQS). We are also granting the state an exemption from the infrastructure SIP contingency plan obligation for ozone and are conditionally approving several elements of New Hampshire's submittal relating to air-quality modeling requirements. In addition, we are correcting errors in our previous approval of an infrastructure SIP submission from New Hampshire for the 2012 PM
This rule is effective on November 25, 2020.
EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2020-0178. All documents in the docket are listed on the
Alison C. Simcox, Air Quality Branch, U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office Square—Suite 100, (Mail code 05-2), Boston, MA 02109-3912, tel. (617) 918-1684, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On August 4, 2020, EPA published a Notice of Proposed Rulemaking (NPRM) to approve most elements of a New Hampshire SIP revision addressing the infrastructure requirements of the Clean Air Act (CAA or Act)—excluding the interstate transport provisions—for the 2015 ozone National Ambient Air Quality Standards (NAAQS). This NPRM also proposed to grant the state an exemption from the infrastructure SIP contingency plan obligation for ozone, and to correct errors and conditionally approve several elements in our previous approval of an infrastructure SIP submission from New Hampshire for the 2012 PM
EPA is approving most elements of New Hampshire's September 5, 2018, infrastructure SIP submission for the 2015 ozone NAAQS—excluding the provisions of the SIP submittal addressing section 110(a)(2)(D)(i)(I) (
In addition, we are correcting errors and conditionally approving several elements in our previous approval of an infrastructure SIP submitted by New Hampshire on December 22, 2015, for the 2012 PM
The State must submit to EPA by October 26, 2021 the revisions to New Hampshire Part Env-A 619.03,
If the State fails to do so, this approval will become a disapproval on that date. EPA will notify the State by letter that this action has occurred. At that time, this commitment will no longer be a part of the approved New Hampshire SIP. EPA subsequently will publish a notice in the
If the conditional approval is converted to a disapproval, such action will trigger EPA's authority to impose sanctions under section 110(m) of the CAA at the time EPA issues the final disapproval or on the date the State fails to meet its commitment. In this situation, EPA will notify the State by letter that the conditional approval has been converted to a disapproval and that EPA's sanctions authority has been triggered. In addition, the final disapproval triggers the Federal implementation plan (FIP) requirement under section 110(c).
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 Clean Air Act. 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 regulatory action because this action is not significant 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 Clean Air Act; 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 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:
42 U.S.C. 7401
Revision and additions to read as follows:
(e)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving the State of South Dakota's January 15, 2020, State Implementation Plan (SIP) submission that addresses infrastructure requirements for the 2015 ozone National Ambient Air Quality Standards (NAAQS). Additionally, in this action, we are approving a SIP revision submitted by the State of South Dakota on January 3, 2020, that revises the Administrative Rules of South Dakota (ARSD), Air Pollution Control Program, updating the date of incorporation by reference of federal rules in ARSD chapters pertaining to definitions, ambient air quality, air quality episodes, Prevention of Significant Deterioration (PSD), new source review, performance testing, control of visible emissions, continuous emission monitoring systems, State facilities in Rapid City area, construction permits and regional haze program administrative rules. The EPA is taking this action pursuant to the Clean Air Act (CAA).
This rule is effective on November 25, 2020.
The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2019-0642. All documents in the docket are listed on the
Kate Gregory, telephone number: (303) 312-6175, email address:
Throughout this document “we,” “us,” and “our” means the EPA.
On March 12, 2008, the EPA promulgated a new NAAQS for ozone, revising the levels of primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436). More recently, on October 1, 2015, the EPA promulgated and revised the NAAQS for ozone, further strengthening the primary and secondary 8-hour standards to 0.070 ppm (80 FR 65292). The October 1, 2015 standards are known as the 2015 ozone NAAQS.
Section 110(a)(1) of the CAA directs each state to make an infrastructure SIP submission to the EPA within 3 years of promulgation of a new or revised NAAQS. Infrastructure requirements for SIPs are provided in section 110(a)(1) and (2) of the CAA. Section 110(a)(2) lists the specific infrastructure elements that a state's infrastructure SIP submission must address, as applicable. The state's infrastructure SIP submission must establish that the state's existing SIP meets the applicable requirements or make revisions to satisfy those requirements as necessary. The elements that are the subject of this action are described in detail in our notice of proposed rulemaking (NPRM) published on May 19, 2020 (85 FR 29882) for South Dakota's infrastructure SIP submission, submitted to the EPA on January 15, 2020, and SIP revisions to the ARSD submitted to the EPA on January 3, 2020.
Comments on our NPRM were due on or before June 18, 2020. The EPA
Similarly, another commenter alleges that EPA cannot approve the South Dakota infrastructure SIP submission “as it relates to the good neighbor provision because it relies on the flawed modeling,” and thus the EPA should disapprove it because the State relied on the wrong analysis. The commenter asserts that, “courts have opined several times that 2023 is the improper year to evaluate for downwind contributions” and the EPA must disapprove South Dakota's SIP submission due to 2021 being the correct analytical year to evaluate for Good Neighbor downwind contributions.
The commenter further argues that the Good Neighbor provision require states to perform the modeling analysis themselves, and thus because the EPA cannot perform the analysis for the State, that the EPA consequently cannot supplement South Dakota's infrastructure SIP submission with “new manufactured” modeling to support approval of the proposal. The commenter also asserts that if the EPA were to “fix” the modeling for the State, EPA must then disapprove the State's infrastructure SIP submission and promulgate a Federal Implementation Plan (FIP).
On May 19, 2020, the D.C. Circuit in
EPA disagrees with the commenters' assertion that this change in analysis means EPA must disapprove South Dakota's infrastructure SIP submission as it pertains to the Good Neighbor provision. As an initial matter, in regard to the comment that South Dakota must conduct its own air quality analysis, EPA has authority and indeed an obligation to take into consideration any relevant information in the record, including its own air quality modeling analysis, to determine how to act on a SIP submission. Here, the State had concluded in its infrastructure SIP submission that it has no emissions reduction obligations for purposes of section 110(a)(2)(D)(i)(I), on the basis that its emissions are not linked to any nonattainment or maintenance receptors, remains approvable. Specifically, relying in part on the same data that informed its analysis of the year 2023, the EPA finds it reasonable to conclude that the impacts from emissions from South Dakota will not exceed a contribution threshold of 1 percent of the 2015 ozone NAAQS to any downwind nonattainment and maintenance sites in 2021. This finding is sufficient basis for EPA to conclude that South Dakota is not linked to any downwind receptors at step 2 of the four-step interstate transport
South Dakota's January 15, 2020 infrastructure SIP submission includes an interstate ozone transport analysis for the Good Neighbor provision that focused on the modeling information provided in the EPA's March 2018 memorandum,
The EPA's analysis of receptors and contributions in 2021 relies in part on the 2023 modeling used in the NPRM of this action, the results of which were included with the March 2018 memorandum. These data are the most recent published applicable modeling data available at the time of this final action. To estimate South Dakota's maximum contribution to a nonattainment or maintenance receptor in 2021, EPA developed an interpolation analysis that evaluates available modeling, monitoring, and emissions data to assess air quality in this year. In general, this analysis utilizes 2019 measured design values
EPA calculated ozone contributions in 2021 by applying the following two-step process. First, the contributions (in ppb) from each state to each monitoring site in 2023 were converted to a fractional portion of the 2023 average design value by dividing the contribution by the 2023 design value. In the second step, the resulting contribution fractions were multiplied by the estimated 2021 average design value to produce 2021 contributions from each state to each monitoring site.
The 2021 design values and contributions were examined to determine if South Dakota contributes at or above the 1 percent of the 2015 ozone NAAQS threshold (0.70 ppb) to a downwind nonattainment or maintenance receptor. The data indicate that the highest contribution in 2021 from South Dakota to a downwind receptor is 0.14 ppb to the nonattainment receptor site in Cook County, Illinois.
EPA also analyzed ozone precursor emissions trends in South Dakota to support the findings from the air quality analysis. In evaluating emissions trends, we focused on State-wide emissions of nitrogen oxides (“NO
As shown in Table 1, between 2011 and 2017, annual total NO
Thus, the EPA concludes the air quality and emission analyses indicate that emissions from South Dakota will not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state in 2021. Therefore, EPA concludes that South Dakota's infrastructure SIP submission satisfies the State's Good Neighbor obligations for the 2015 ozone NAAQS.
This is not to say that the EPA has no role in reviewing whether a state is faithfully implementing its approved SIP, or otherwise complying with the CAA and its implementing regulations. To the contrary, there are multiple statutory tools that the EPA can use to rectify problems with a state's implementation of its SIP, and the existence of these tools is consistent with the EPA's interpretation of section 110(a)(2) with respect to the Agency's role in reviewing infrastructure SIP submissions. For example, the CAA provides the EPA the authority to issue a SIP call, 42 U.S.C. 7410(k)(5); make a finding of failure to implement,
With respect to South Dakota's infrastructure SIP submission, the EPA analyzed the submission itself, and evaluated the text of its provisions for compliance with the relevant elements of section 110(a)(2). The EPA has evaluated the State's submission on a requirement-by-requirement basis and explained its views on the adequacy of the State's SIP for purposes of meeting the infrastructure SIP requirements.
The EPA appreciates and takes seriously the commenters' assertions that the Agency should evaluate the strength of the South Dakota permit program in the SIP as approved by the EPA. However, because this action involves a review of the infrastructure SIP submission itself, the EPA is not evaluating the merits of assertions concerning implementation of the SIP in the context of this action. At this time, the EPA is finalizing its proposed approval of the infrastructure SIP submission that is currently before the Agency. If the EPA later determines that there are indeed concerns with respect to the implementation of the PSD program in South Dakota, the Agency intends to take appropriate action to ensure those problems are rectified using whatever statutory tools are appropriate to the implementation problem identified.
With respect to the requirements related to PSD relevant to this approval of the infrastructure SIP submission, the EPA has determined that the State's SIP as previously approved, meets the relevant structural requirements for purposes of PSD in section 110(a)(2)(C), (D)(i)(II) element 3, and (J). Some examples of these basic structural SIP requirements include having state law authority to implement the SIP, an overarching permitting program in place, and a properly deployed monitoring network. As to the PSD program in particular, these basic structural requirements include those provisions necessary for the permitting program to address all regulated NSR pollutants and the proper sources. The EPA considers action on the infrastructure SIP submissions required by section 110(a)(1) and (2) to be an evaluation of a state's SIP to assure that it meets the basic structural requirements for the new or revised NAAQS, not a time to address all potential substantive defects in existing SIP provisions, or alleged defects in implementation of the SIP.
The EPA concludes that South Dakota's infrastructure SIP submission satisfies the State's obligations for the 2015 ozone NAAQS with respect to PSD program requirements.
In this rulemaking, we are approving multiple elements of the infrastructure SIP requirements for the 2015 ozone NAAQS for South Dakota along with approving revisions to the ARSD, Air Pollution Control Program. The actions we are approving are contained in Table 1 below.
The EPA is approving South Dakota's January 15, 2020 SIP submission that addresses infrastructure requirements for the 2015 ozone NAAQS SIP submission for the following CAA section 110(a)(2) infrastructure elements: (A), (B), (C), (D)(i)(I) Prongs 1 and 2, (D)(i)(II) Prong 3, (D)(i)(II) Prong 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Additionally, in this action, we are approving a SIP revision submitted by the State of South Dakota on January 3, 2020 that revises the ARSD, Air Pollution Control Program.
In the table below, the key is as follows:
In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of a SIP revision submitted by the State of South Dakota on January 3, 2020 that revises the ARSD, Air Pollution Control Program, updating the date of incorporation by reference of federal rules in ARSD chapters pertaining to definitions, ambient air quality, air quality episodes, PSD, new source review, performance testing, control of visible emissions, continuous emission monitoring systems, State facilities in Rapid City area, construction permits and regional haze program administrative rules as is described in the preamble. The EPA has made, and will continue to make, these materials generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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, 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
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 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Carbon monoxide, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a redesignation request and state implementation plan (SIP) revisions submitted by the State of West Virginia related to the 2010 primary national ambient air quality standard (NAAQS or Standard) for sulfur dioxide (SO
This final rule is effective on November 25, 2020.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2020-0171. All documents in the docket are listed on the
Megan Goold, Planning & Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-2027. Ms. Megan Goold can also be reached via electronic mail at
The Marshall Area is comprised of the Clay, Franklin, and Washington Tax Districts of Marshall County, West Virginia. On March 18, 2020, West Virginia, through the West Virginia Department of Environmental Protection (WVDEP), submitted a redesignation request for the Marshall, West Virginia SO
The Marshall Area was designated nonattainment for the 2010 SO
Under CAA section 110(k)(2) through (4), EPA was required to take action to approve or disapprove West Virginia's 2017 SIP within 12 months of determining it to be complete, but EPA did not take timely action. Subsequently, the Center for Biological Diversity and other plaintiffs (CBD) sued EPA in the U.S. District Court for the Northern District of California seeking a court order to compel EPA's action on West Virginia's 2017 SIP and several other SIPs for other areas in the nation.
West Virginia's March 18, 2020 redesignation request included a maintenance plan providing for continued attainment of the SO
Under CAA section 107(d)(3)(E), there are five criteria which must be met before a nonattainment area may be redesignated to attainment:
1. EPA has determined that the relevant NAAQS has been attained in the area;
2. The applicable implementation plan has been fully approved by EPA under section 110(k);
3. EPA has determined that improvement in air quality is due to permanent and enforceable reductions in emissions resulting from the SIP, Federal regulations, and other permanent and enforceable reductions;
4. EPA has fully approved a maintenance plan, including a contingency plan, for the area under section 175A of the CAA; and,
5. The state has met all applicable requirements for the area under section 110 and part D. The June 30, 2020 proposal (85 FR 39505) provides a detailed discussion of each requirement and EPA's analysis of how each requirement was met and is not repeated here. To summarize the analysis in the notice of proposed rulemaking (NPRM), EPA determined that the modeling submitted as part of the maintenance plan for the redesignation request submitted on March 18, 2020 shows that the Marshall Area is attaining the 2010 SO
EPA received one adverse comment on the proposal. To review the full comment received, refer to the Docket for this rule, as identified in the
EPA also disagrees that EPA improperly “rounded up” to develop the 196.4 µg/m
Regarding the commenter's question about the margin of error for AERMOD, EPA notes that AERMOD is a refined, steady-state (both emissions and meteorology over a 1-hour time step), multiple source, air-dispersion model that was originally promulgated by the EPA as part of its December 2005 revision to the Guideline on Air Quality Models, and is the preferred model to use for industrial sources in this type of air quality analysis. Furthermore, AERMOD predicts concentrations in many areas within the nonattainment area, rather than just at the monitor location, and therefore provides a more robust set of concentration data to assess attainment within the area than would be provided by a few SO
EPA also disagrees with the commenter's assertion that a finer modeling grid resolution should have been used. EPA's Guidance for the 1-
Regarding the commenter's question regarding how the Mitchell plant will maintain the standard, as stipulated by CAA 175A, the state must submit a maintenance plan which demonstrates how the source within the Marshall Area will provide for maintenance of the standard for the next ten years. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the ten years following the initial ten-year period. To address the possibility of future NAAQS violations, the maintenance plan must also contain contingency measures to assure prompt correction of any future violations. Specifically, the maintenance plan should address five requirements: (1) An attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) the verification of continued attainment; and (5) a contingency plan.
EPA is making a finding that the Marshall Area has attained the 2010 SO
In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of West Virginia's 2010 SO
Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 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 these reasons, 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 it is not a significant regulatory action 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).
The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 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 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the redesignation of the West Virginia Marshall Nonattainment Area and associated maintenance plan may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons stated in the preamble, the EPA amends 40 CFR parts 52 and 81 as follows:
42 U.S.C. 7401
The additions read as follows:
(d) * * *
(e) * * *
(e) EPA approves the maintenance plan for Clay, Franklin, and Washington Tax Districts, West Virginia, submitted by the Department of Environmental Protection on March 18, 2020.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Denial of petition for reconsideration.
The U.S. Environmental Protection Agency (EPA) is providing notice that it has responded to a petition for reconsideration of a final rule published in the
This rule is effective on October 26, 2020.
For questions about this action, contact Mr. Andrew Bouchard, Sector Policies and Programs Division (E143-01), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-4036; and email address:
This
Section 307(b)(1) of the Clean Air Act (CAA) specifies which Federal Courts of Appeal have venue over petitions for review of final EPA actions. This section provides, in part, that “a petition for review of action of the Administrator in promulgating . . . any emission standard or requirement under section [112] of [the CAA],” or any other “nationally applicable” final action, “may be filed only in the United States Court of Appeals for the District of Columbia.”
The EPA has determined that its denial of the petition for reconsideration is nationally applicable for purposes of CAA section 307(b)(1) because the actions directly affect the Petroleum Refinery Sector NESHAP, which are nationally applicable CAA section 112 standards. Thus, any petitions for review of the EPA's decision denying the petitioner's request for reconsideration must be filed in the
On February 4, 2020, the EPA promulgated a final rule addressing a petition for reconsideration that was filed in response to a rule issued in December 2015,
CAA section 307(d)(7)(B) requires the EPA to convene a proceeding for reconsideration of a rule if a party raising an objection to the rule “can demonstrate to the Administrator that it was impracticable to raise such objection within [the public comment period] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” The requirement to convene a proceeding to reconsider a rule is, thus, based on the petitioner demonstrating to the EPA both: (1) That it was impracticable to raise the objection during the comment period, or that the grounds for such objection arose after the comment period, but within the time specified for judicial review (
The EPA carefully reviewed the petition for reconsideration and evaluated all five issues raised to determine if they meet the CAA section 307(d)(7)(B) criteria for reconsideration. In a separate letter to the petitioner, the EPA Administrator denied the petition for reconsideration. The letter articulates in detail the rationale for the EPA's final responses and is available in the docket for this action.
Office of the Secretary, Interior.
Interim final rule; request for comments.
We, the Department of the Interior (Department), through this interim final rule (IFR), revise our rulemaking procedures to implement an Executive order (E.O.) entitled “Promoting the Rule of Law Through Improved Agency Guidance Documents.” The E.O. requires Federal Agencies to finalize regulations or amend existing regulations to establish processes and procedures for issuing guidance documents and to establish exceptions for categories of guidance documents.
This rule is effective October 26, 2020. Comments will be accepted until December 28, 2020.
You may submit comments by one of the following methods:
•
Bivan Patnaik, Deputy Director of Regulatory Affairs, Office of the Executive Secretariat and Regulatory Affairs, by phone at 202-208-3181 or via the Federal Relay Service at 800-877-8339, or via email account
E.O. 13891, entitled “Promoting the Rule of Law Through Improved Agency Guidance Documents,” which published in the
This IFR creates a new part 51 in title 43 of the Code of Federal Regulations (CFR), which concerns Public Lands and the Department of the Interior. This rule promulgates the Department's procedural requirements governing the development, review, and clearance of guidance documents; the processes for
The procedures contained in this IFR apply to all guidance documents, which E.O. 13891 defines as any statement of agency that is of general applicability and intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issues or an interpretation of a statute or regulation, with certain exceptions. OMB's M-20-02 further clarifies and provides information for Agencies to consider in determining when a document is indeed a guidance document, including a functional test for rules of agency organization, procedure, or practice. This IFR codifies the Department's existing procedures and implements new procedures regarding the development, review, and clearance of guidance documents. These procedures ensure that all guidance documents receive legal review and, when appropriate, Office of the Secretary review. Before guidance documents are issued, they must be reviewed to ensure they are written in plain language and do not impose any substantive legal requirements above and beyond those imposed by statute, regulation, or contract. If a guidance document purports to describe, approve, or recommend specific conduct that extends beyond what is required by existing law, regulation, or contract, then it must include clear and prominent language effectively stating that the contents of the guidance document do not have the force and effect of law and are not meant to bind the public in any way, and the guidance document is intended only to provide clarity to the public regarding existing requirements under the law, regulation, contract or agency policies.
In recognition of the fact that although guidance documents are not legally binding, they could nevertheless have a substantial economic impact on regulated entities that alter their conduct to conform to the guidance, this IFR directs Bureaus and Offices within the Department to undertake a benefits and cost assessment of the impact of the guidance document when appropriate. Further information that describes identifying and measuring benefits and costs are found in OMB's Circular A-4 (add footnote). Further Bureaus/Offices of the Department are to be in compliance with E.O. 13891, Section 4(a)(iii)(C) and (D). The procedures for the development, review, and clearance of guidance documents can be found at 43 CFR part 51.
Under section 553(b)(3)(B) of the APA, a proposed rule is not required “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” There is good cause to forgo notice and public comment on a proposed rule in this instance and instead take immediate action because this IFR codifies the Department's existing procedures and implements new procedures regarding the development, review, and clearance of guidance documents as directed by E.O 13891. Additionally, it does not reach any right or benefit, substantive, or procedural, as an enforceable action against the United States or the Department. The Department finds good cause in accordance with 5 U.S.C. 553(d)(3) to make the IFR effective less than 30 days after the date of publication to allow for swift implementation of this program. Although this IFR is effective immediately, comments are solicited from the public on all aspects of the interim final rule. The Department will consider all public comments received in the development of a subsequent final rule.
E.O. 12866 provides that the Office of Management and Budget's (OMB's) Office of Information and Regulatory Affairs will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866, calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory objectives. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public, where these approaches are relevant, feasible, and consistent with regulatory objectives. This IFR is in compliance with E.O. 13563 and is intended to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory objectives.
This IFR will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, the Department will assist small entities in understanding this rule so that they can better evaluate its effects. If the IFR rule will affect your small business, organization, or governmental jurisdiction, and you have questions concerning its provisions, please contact the person listed in the
A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule:
(a) Will not impose an unfunded mandate on state, local, or tribal governments or the private sector of more than $100 million per year.
(b) Will not have a significant or unique effect on State, local, or tribal governments, or the private sector.
This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.
This proposed rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. This rule is not a Government action capable of interfering with constitutionally protected property rights. It does not impose any obligations on the public
Under the criteria in section 1 of E.O. 13132, this IFR will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement because it will not substantially and directly affect the relationship between the Federal and State governments. Accordingly, a federalism summary impact statement is not required.
This IFR complies with the requirements of E.O. 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) of this E.O. which requires that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) of this E.O. which requires that all regulations be written in clear language and contain clear legal standards.
The Department strives to strengthen its government-to-government relationship with federally recognized Indian tribes through a commitment to consultation and recognition of their right to self-governance and tribal sovereignty. Under the criteria in E.O. 13175 and Departmental Manual Part 512 Chapters 4 and 5, this IFR will have no substantial direct effects on federally recognized Indian tribes or Alaska Native Claims Settlement Act (ANCSA) Corporations, and consultation under the Department's consultation policies is not required.
This IFR does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This IFR will not impose recordkeeping or reporting requirements on State, local, or Tribal governments, individuals, businesses, or organizations.
This IFR does not constitute a major Federal action significantly affecting the quality of the human environment. Pursuant to Departmental Manual 516 DM 2.3A (2), section 1.10 of 516 DM 2, Appendix 1 categorically excludes from the requirement to document an environmental assessment or impact statement policies, directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature; or the environmental effects of which are too broad, speculative or conjectural to lend themselves to meaningful analysis and will be subject to the NEPA process, either collectively or case-by-case.
This IFR is not a significant energy action under the definition in E.O. 13211; therefore, a Statement of Energy Effects is not required.
The Department is required by section 1(b)(12) of E.O. 12866 and Section 3(b)(1)(B) of E.O. 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that this rule must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, please contact the person listed in the
The Department publishes this IFR in accordance with the APA as codified in the text of chapters 5 and 7 of Title 5, United States Code, that govern procedures for agency rulemaking and adjudication and provides for judicial review of final agency actions and E.O. 13891.
Administrative practice and procedure, Executive orders.
For the reasons discussed in the preamble, 43 CFR part 51 is added to read as follows:
5 U.S.C. Chapter 5, Subchapter II; Chapter 7, E.O. 13891, 84 FR 55235, 3 CFR, 2019 Comp., p. 371.
(a) This part governs the issuance of Departmental guidance documents.
(b) Subject to the qualifications and exemptions contained in this part, the procedures in this part apply to all guidance documents issued by all Bureaus/Offices of the Department of the Interior (the Department) after October 26, 2020.
(c) For purposes of this part, the term “guidance document” is any statement of agency policy or interpretation of a statute, regulation, or technical matter within the jurisdiction of the agency that is of general applicability and intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issues or an interpretation of a statute or regulation, with certain exceptions. The term is not confined to formal written documents; guidance may come in a variety of forms, including (but not limited to) letters, memoranda, circulars, bulletins, advisories, and may include video, audio, and Web-based formats.
(d) This part does not apply to the following documents, which are not included in the definition of “guidance document” for purposes of this part:
(1) Rules promulgated pursuant to notice and comment under 5 U.S.C. 553, or similar statutory provisions;
(2) Rules exempt from rulemaking requirements under 5 U.S.C. 553(a);
(3) Rules of agency organization, procedure, or practice;
(4) Decisions of agency adjudications under 5 U.S.C. 554 or similar statutory provisions;
(5) Internal guidance directed to the issuing agency or other agencies that is
(6) Internal executive branch legal advice or legal advisory opinions addressed to executive branch officials that are not intended to have substantial future effect on the behavior of regulated parties.
All Departmental guidance documents, as defined in § 51.1(c), require review and clearance in accordance with this part.
(a) Guidance proposed to be issued by a Bureau/Office of the Department must be reviewed and cleared by the relevant Division of the Office of the Solicitor. In addition, as provided in paragraph (b) of this section, some Bureau/Office guidance documents will require review and clearance by the Immediate Office of the Solicitor.
(b) Guidance proposed to be issued by the Office of the Secretary must be reviewed and cleared by the Immediate Office of the Solicitor.
The Department's review and clearance of guidance documents must ensure that each guidance document proposed to be issued by a Bureau/Office of the Department satisfies the following requirements:
(a) The guidance document complies with and cites all relevant statutes and regulations (including any statutory deadlines for agency action);
(b) The guidance document identifies or includes:
(1) The term “guidance” or its functional equivalent;
(2) The issuing Bureau/Office and the date of issuance;
(3) A unique identifier, including, at a minimum, the date of issuance and title of the guidance document and its Z-Regulatory Identification Number (Z-RIN), if applicable;
(4) The activity or entities to which the guidance applies;
(5) Citations to applicable statutes and regulations;
(6) A statement noting whether the guidance document intends to revise or replace any previously issued guidance document and, if so, sufficient information to identify the previously issued guidance document; and
(7) A short summary of the subject matter covered in the guidance document at the top of the document;
(c) The guidance document should not use mandatory language, such as “shall,” “must,” “required,” or “requirement,” unless the language is describing an established statutory, regulatory, or contractual requirement or is addressed to Department staff and will not foreclose the Department's consideration of positions advanced by affected private parties;
(d) The guidance document is written in plain and understandable English; and
(e) The guidance document must include a clear and prominent statement declaring that the contents of the document do not have the force and effect of law, except as authorized by law or as incorporated into a contract, and are not meant to bind the public in any way, except as authorized by law or as incorporated into a contract, and that the document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
Each Bureau/Office that is responsible for issuing guidance documents must:
(a) Ensure all effective guidance documents, identified by a unique identifier which includes, at a minimum, the document's title and date of issuance or revision and its Z-RIN, if applicable, are on the Department's website in a single, searchable, indexed database, and available to the public in accordance with the notice titled “Implementation of Executive Order 13891: Guidance Documents”;
(b) Note on its website that guidance documents lack the force and effect of law, except as authorized by law or as incorporated into a contract;
(c) Maintain and advertise on its website a means for the public to comment electronically on any guidance documents that are subject to the notice-and-comment procedures described in § 51.17 and to submit requests electronically for issuance, reconsideration, modification, or rescission of guidance documents in accordance with § 51.21; and
(d) Designate an office or official(s) to receive petitions for withdrawal or modification of guidance documents and address complaints from the public that the Bureau/Office is not following the requirements of OMB's Good Guidance Bulletin or is improperly treating a guidance document as a binding requirement.
(a) The Bureau/Office must evaluate whether, although not legally binding, an agency guidance document may result in a substantial economic impact (
(b) While it may be difficult to predict with precision the economic impact of voluntary guidance, the issuing Bureau/Office must, to the extent practicable, make a estimate the likely economic cost impact of the guidance document in order to determine whether the guidance document is economically significant. When a Bureau/Office is explaining to OMB's Office of Information and Regulatory Affairs (OIRA) whether it believes a guidance document is economically significant, it should, at a minimum, provide the same level of analysis that would be required for a major determination under the Congressional Review Act.
(a) Guidance documents proposed to be issued by a Bureau/Office must be submitted (or a summary of it) to the Office of the Executive Secretariat and Regulatory Affairs (OES). OES will submit these documents or summaries of them to OIRA for significance determinations. If OIRA determines that a proposed guidance document is significant, then the Bureau/Office must obtain a Z-RIN and clearance through the Data Tracking System (DTS) or successor data management system. Each proposed guidance document determined to be significant must be approved by the Secretary before issuance.
(b) As with regulations or rules, including significant regulatory actions, OES will submit significant guidance documents to OIRA consistent with the requirements set forth in § 51.13(c). In addition, OES may determine that it is appropriate to coordinate with the Office of the Secretary and OIRA in the review of guidance documents.
(c) Significant guidance documents must be reviewed by OIRA under E.O. 12866 before issuance and must demonstrate compliance with the applicable requirements for regulations or rules, including significant regulatory actions.
(d) If the guidance document is determined not to be significant as defined by § 51.13, OES will advise the proposing Bureau/Office to proceed with issuance of the guidance through its standard clearance process.
(a) The term “significant guidance document” means a guidance document that may reasonably be anticipated to:
(1) Lead to an annual effect on the economy of $100 million or more or adversely affect in a material way the U.S. economy, a sector of the U.S. economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another Federal agency;
(3) Alter materially the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866, as further amended.
(b) The term “significant guidance document” does not include the categories of documents excluded by § 51.1(d) or any other category of guidance documents exempted in writing by OIRA in consultation with OES.
(c) Significant guidance documents must:
(1) Be reviewed by OIRA under E.O. 12866 before issuance;
(2) Be approved on a non-delegable basis by the Bureau/Office head or by an agency component head appointed by the President, before issuance; and
(3) Demonstrate compliance with the applicable requirements for regulations or rules, including significant regulatory actions, set forth in Executive Orders 12866, 13563, 13609, 13771, 13777, and 13893.
(a) The OES may request a Bureau/Office to prepare a designation request for certain guidance documents. Designation requests must include the following information:
(1) A summary description of the guidance document; and
(2) The Bureau/Office recommended designation of “not significant,” “significant,” or “economically significant,” as well as a justification for that designation.
(b) OES must seek significance determinations from OIRA for guidance documents in the same manner as for regulatory actions. Prior to publishing such guidance documents, and with sufficient time to allow OIRA to review the document in the event that a significance determination is made, OES will provide OIRA with an opportunity to review the designation request or the guidance document, if requested, to determine if it meets the definition of “significant” under Executive Order 13891.
(a) Except as provided in paragraph (b) of this section, all proposed Department guidance documents determined to be a “significant guidance document” within the meaning of § 51.13 will be subject to the following informal notice-and-comment procedures prior to issuance. The issuing Bureau/Office must:
(1) Publish a notice in the
(2) Post the draft guidance document on its website;
(3) Invite public comment on the draft document for a minimum of 30 days through a
(4) All public comments received must be posted and made publicly available; and
(5) Prepare and post public responses to major concerns raised in the comments, as appropriate, on its website, and through a
(b) The requirements of paragraph (a) of this section will not apply to any significant guidance document or categories of significant guidance documents for which OES finds, in consultation with OIRA, the proposing Bureau/Office, Solicitor, Assistant Secretary, and the Secretary, that good cause exists such that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest (and incorporates the finding of good cause and a brief statement of reasons therefor in the guidance issued). Unless OES advises otherwise in writing, the categories of guidance will be exempt from the requirements of paragraph (a) of this section.
(c) Where appropriate, OES or the proposing Bureau/Office may recommend to the Secretary that a particular guidance document that is not a significant guidance document should be subject to the informal notice-and-comment procedures described in paragraph (a) of this section.
Any person may petition the Secretary, through an electronic submission, to issue new, or withdraw or modify, a particular guidance document by using the procedures found in 43 CFR part 14 (§§ 14.1 through 14.4). The Secretary will delegate the petition to the appropriate Bureau/Office, which should respond to all requests in a timely manner but must respond no later than 90 days after receipt of the request.
A Bureau/Office may not cite, use, or rely on guidance documents that are rescinded, except to establish historical facts.
In emergency situations or when the issuing Bureau/Office is required by statutory deadline or court order to act more quickly than normal review procedures allow, the issuing Bureau/Office must coordinate with OES to notify OIRA as soon as possible and, to the extent practicable, must comply with the requirements of this part at the earliest opportunity. Wherever practicable, the issuing Bureau/Office should schedule its proceedings to permit sufficient time to comply with the procedures set forth in this part.
Unless otherwise determined in writing by OES, it is the policy of the Department that upon issuing a guidance document determined to be “significant” within the meaning of § 51.13, the issuing Bureau/Office will submit a report to Congress and the Comptroller General in accordance with the procedures described in 5 U.S.C. 801 (the “Congressional Review Act”).
This part is intended to improve the internal management of the Department. As such, it is for the use of Department personnel only and is not intended to, and does not, create, any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies or other entities, its officers or employees, or any other person.
Bureau of Land Management, Interior.
Final rule.
The Bureau of Land Management (BLM) is amending its regulations to revise the process for lessees to seek and for the BLM to grant reductions of rental fees, royalty rates, and/or minimum production requirements associated with all non-energy solid leasable minerals. This final rule streamlines the process for such reductions for non-energy solid minerals leased by the Federal Government and codifies the BLM's authority to issue an area- or industry-wide reduction on its own initiative. Existing regulatory requirements are overly restrictive, inflexible, and burdensome. A report from the Senate Committee on Appropriations on the 2019 Department of the Interior, Environment, and Related Agencies Appropriations Bill encouraged the BLM to work with soda ash producers to reduce the Federal royalty rate, as appropriate. This final rule gives the BLM more flexibility to respond to changing market dynamics and to promote development of the Federal mineral estate when deemed necessary.
This final rule is effective on November 25, 2020.
Lindsey Curnutt, Acting Division Chief of Solid Minerals, WO-320; 480-708-7339. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, 7 days a week, to leave a message or question with the above individuals. You will receive a reply during normal business hours.
Pursuant to the Mineral Leasing Act of 1920 (MLA), 30 U.S.C. 181
The United States was once the leading producer in the world of one such mineral, sodium carbonate (natural soda ash), before falling behind China in 2003.
The minimum royalty rates for soda ash, along with other non-energy solid minerals on Federal lands, are set in the MLA and BLM regulations (see 43 CFR 3504.21). The MLA authorizes the Secretary to establish royalty rates higher than the minimum, along with rental fees and minimum production requirements through regulation. The BLM sets the royalty rates for each lease at or above the specified minimum royalty rate (see 43 CFR 3504.22) based on current market conditions at the time of lease issuance, but those conditions may change over the life of the lease and may be dynamic based upon global supply.
Section 39 of the MLA, 30 U.S.C. 209, authorizes the Secretary to reduce royalty rates and rental fees on mineral leases for the purpose of encouraging the greatest ultimate recovery, and in the interest of conservation of natural resources, whenever the Secretary determines it is necessary to do so in order to promote development, or when the Secretary determines that leases cannot be successfully operated under the existing terms.
The BLM regulations contain a process for reducing royalty rates, along with rental fees and minimum production requirements, for non-energy solid minerals leased by the Federal Government in 43 CFR subpart 3513—Waiver, Suspension or Reduction of Rental and Minimum Royalties. The process described in this subpart of the regulations imposes requirements beyond what section 39 of the MLA, 30 U.S.C. 209, requires. The BLM has reviewed the existing regulatory requirements for non-energy solid minerals and has determined that the royalty reduction process codified in 43 CFR subpart 3513 is unnecessarily restrictive, inflexible, and burdensome. See § 3513.15 of the section-by-section discussion of this preamble for a more detailed discussion of the overly burdensome requirements that this final rule removes.
The BLM promulgated the current regulations during the late 1990s to “streamline and rewrite necessary regulations in plain English.”
This final rule streamlines the process to reduce rental fees, royalty rates, or minimum production requirements for all non-energy solid minerals leased by the Federal Government, without altering the substantive criteria that BLM will use to determine whether a
This final rule also aligns with the recommendations of congressional committees. The American Soda Ash Competitiveness Act was introduced in Congress in 2017 and recommended setting the Federal royalty rate for soda ash at the minimum of 2 percent for a 5-year period. Although this proposed legislation was not enacted, the Senate Committee on Appropriations expressed concern about keeping the United States competitive in the global soda ash market, and encouraged “the Bureau to work with soda ash producers to assist them in reducing royalty rates and [directing] the Bureau to take the necessary steps to reduce the Federal royalty rate for soda ash as appropriate.” S. Rep. No. 115-276, at 14 (2018). The House Appropriations Committee also noted in an explanatory statement for the 2018 Interior, Environment, and Related Agencies Appropriations bill that the Committees are concerned about maintaining the United States' global competitiveness in the production of natural soda ash. The United States contains approximately 90 percent of the world's natural soda ash deposits, while many international competitors are producing synthetic soda ash using more energy and generating higher emissions than natural soda ash production. Therefore, the Committees expect the Bureau to consider using its authority to reduce the Federal royalty rate for soda ash to 2 percent.
By clarifying the BLM's authority to reduce the royalty rate for soda ash and other non-energy solid leasable minerals in general (
The BLM has a history of receiving applications requesting royalty rate reductions for commodities such as lead-zinc, gilsonite, and potash. Since the early 1990s the BLM has received between ten and fifteen applications seeking a reduction, and approximately half of those were considered complete applications. The BLM has approved about five applications for reduction since 1993. Although the BLM has no history of implementing area- or industry-wide royalty rate reductions in the context of non-energy solid leasable minerals under 43 CFR part 3500, the BLM has reduced royalty rates on an area-wide basis for coal leases under section 39 of the MLA, 30 U.S.C. 209. As an example, the BLM reduced the royalty rate for coal leases in a specific area of North Dakota in the spring of 2019 to 2.2 percent as a “category 5” reduction due to market conditions.
Executive Order 13817, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” emphasizes the need for the United States to domestically source critical minerals. The Secretary of the Interior published a “Final List of Critical Minerals” on May 18, 2018. This list includes commodities that can be leased as non-energy minerals, such as potash and metals like lithium or rare earth on any unclaimed, undeveloped area of public domain and on acquired lands. This final rule would further the goals of E.O. 13817 by improving the BLM's ability to react to unforeseen market forces and ensure continued production of critical minerals on Federal lands.
Over the past two decades, U.S. natural soda ash production has grown at an average annual rate of 0.9 percent, from 11.1 million short tons (MMst) in 1998 to 13.2 MMst in 2018, which comprised 22 percent of world soda ash production in 2018.
Although China's soda ash production has largely focused on producing glass for its automotive and construction industries (among others), its rise has reduced the ability of U.S. producers to satisfy the burgeoning demand for the mineral. It has also caused the U.S. share of world soda ash production to decline from 31 percent of the world total in 1998 to 22 percent in 2018. Moreover, while China's more expensive synthetic soda ash production has largely gone to its domestic manufacturing industry, relatively low-cost natural soda ash produced from Turkey's significant trona ore deposits compete directly with U.S. exports to countries in the European Union and elsewhere. Recent announcements point to soda ash production expansions in Turkey, as well as in Belarus, Kazakhstan, Uzbekistan, India, Thailand, and Pakistan.
It is the BLM's view that in light of world market developments, including those described above, this final rule is necessary to keep the United States competitive in the world markets of non-energy solid leasable commodities. The BLM also views the rule as necessary to promote development of non-energy solid leasable mineral resources in accordance with the MLA, particularly during periods of market fluctuation. For example, from 2008 to 2010, the price of soda ash, as with many other commodities, spiked and then dropped precipitously, threatening industry proponents' ability to operate successfully while paying all related royalties and taxes.
The changes in this final rule will not adversely affect the processing time for royalty rate reduction applications. On the contrary, the changes will reduce the time required for a lessee to compile and complete applications. Moreover, the rule will allow the BLM to implement industry- or area-wide reductions on its own initiative in
Moreover, reduced royalties only apply to existing leases with approved mine plans, which have already undergone environmental analysis in compliance with NEPA regulations, not to new development, therefore there is no increased footprint from a royalty reduction. Before BLM can approve a mine plan of operations, a NEPA analysis is conducted. Heretofore, a CX has been completed for reductions on leases that have already undergone an environmental analysis for their associated mine plan of operations. The CX for a royalty rate reduction has been done in accordance with our NEPA handbook H-1790-1 Appendix 4, F4 on page Appendix 4-152.
This final rule also does not limit how many operators could jointly file an application, so long as information is included “for all leases involved.” If several interested parties jointly submit an application for a royalty rate reduction, the BLM could approve that application for the leases identified in the application or could initiate an industry-wide reduction under § 3513.17(a).
The regulations in 43 CFR part 3500 are authorized by the Mineral Leasing Act of 1920 (30 U.S.C. 181
The final rule streamlines the process to apply for rental fee, royalty rate, and minimum production requirement reductions for non-energy solid mineral leases. This final rule also reduces the burden on lease holders by simplifying the regulatory requirements to better align the regulations with the statute.
You may find the BLM regulations that implement this authority for solid minerals (other than coal) in 43 CFR subpart 3513—Waiver, Suspension or Reduction of Rental and Minimum Royalties.
Section 3513.11 states that the BLM has a process that allows for temporary relief from the rental, minimum royalty, or production royalty provisions in a lease. The BLM considers applications submitted under § 3513.15 on a case-by-case basis based on the data in the application for relief from lease requirements. This existing section is the introductory provision in subpart 3513, which explains that process in greater detail. The BLM Manual Section 3485-Reports, Royalties, and Records, December 17, 1990 (
This final rule adds to § 3513.11 a citation to the relevant section of the Mineral Leasing Act (30 U.S.C. 209). This is not a substantive change.
Section 3513.15 sets out the information that a lessee must include in an application to BLM. The BLM needs the information provided in an application to determine whether the request satisfies the reduction criteria described in 43 CFR 3513.12.
This final rule removes the requirement to submit two copies of an application, because two copies are no longer necessary. When the BLM promulgated these regulations, lessees
Section 3513.15(d) in the current regulations requires an application to include a description of the lands for which the reduction would apply. This final rule revises this requirement to be applicable only when the application is for a portion of the lease or leases. If the application is for the lease in its entirety, the BLM already has that information on hand, and a land description would not be necessary for that application. This revision makes the application easier to complete and improves processing timeliness.
This final rule removes paragraphs (f) and (h) of the previous regulations, which required a tabulated statement of the leasable minerals mined for each month, covering at least the last twelve months before a lessee files an application; the average production mined per day for each month; a detailed statement of the expenses and costs of operating the entire lease; and the income from the sale of any leased products. This information is not required under the final rule, because the BLM already knows the quantity of leasable minerals that the lessees are mining on each lease. The BLM can extrapolate the average production mined per day from production records and mine plan reports that the lessee already submits to the BLM and Office of Natural Resources Revenue (formerly Mineral Management Service) for royalty payment purposes and to prove that the lessee is meeting minimum production requirements as indicated on its lease form in accordance with 43 CFR 3504.20. Similarly, the Office of Natural Resources Revenue also gathers information pertaining to income from the sale of minerals. The detailed statement of expenses and costs is not necessary for the application because the reduction is based on market conditions and geologic interferences that are not tied to past costs and expenses. BLM may request information under the new 43 CFR 3513.15(h) (formerly (l)) if it finds that such information would be necessary to assess a specific application. For example, the applicant's fixed utility costs will generally not change with the commodity's market fluctuations, so we know that the applicant's costs to run the operation will not decrease at the same rate as its income from the commodity price decreases. Removing this unnecessary requirement also makes the application easier to complete, further improving the timeliness of the reduction process.
In the proposed rule, paragraph (g) in the previous rule became new paragraph (f). New § 3513.15(f) is revised in this final rule from the language initially proposed in response to comments received. The language in proposed § 3513.15(f) was not changed from language in previous paragraph (g), which required applicants to provide “complete information” about why they were unable to meet the terms and conditions of their leases. The commenters believe that this requirement is unnecessarily broad and recommended that the BLM require only “the information sufficient to demonstrate” the need for the reduction. The BLM agrees that the initially proposed text was unclear, and the final rule incorporates the suggested revisions. The language in the final rule more accurately describes how much information an applicant must include in its application. Similar to paragraph (g) of this section, this clarification will not result in any substantive impacts.
Section 3513.15(g) of the final rule contains the requirement found in § 3513.15(i) of the previous regulations. However, instead of requiring “all facts” showing why the lessee cannot successfully operate a mine, the final rule requires the application to provide “justification” showing why the lessee cannot successfully operate a mine under the existing royalty or rental. The final rule provides a more measured requirement for the applicant to demonstrate why it is unable to meet the terms of the lease. It is still imperative for the application to provide sufficient justification for the BLM to make its determination in each applicant's case. While this is a change to the wording of the regulation, the BLM does not expect any substantive impact from this revision because the applicant will still need to demonstrate why it cannot operate the lease under current conditions. Data that may be seen in these types of applications include: Geologic maps and reports about hazards being encountered, cost per ton of product, revenue per ton of product, or reports discussing any financial hardship that an individual mine is facing.
This final rule also removes paragraphs (j) and (k) of § 3513.15, which required full information as to whether the lessee pays royalties or payments out of production to anyone other than the United States, the amounts paid and efforts the lessee has made to reduce them, and documents demonstrating that the total amount of overriding royalties paid for the lease, discussed in 43 CFR 3504.26, will not exceed one-half the proposed reduced royalties due the United States. The BLM expects that the application would disclose any relevant information regarding overriding royalties under the informational requirements of § 3513.15(g) and (h) of the final rule because the BLM has authority to order the operator to suspend or reduce an overriding royalty as stated in 43 CFR 3504.26. The removal of paragraphs (j) and (k) makes the application easier to complete, improving the timeliness of the process.
Section 3513.15(h) of the final rule contains the requirement, set forth in § 3513.15(l) of the previous regulations, that the applicant include any additional information that the BLM requires to determine whether the applicant meets the standards of § 3513.12. Section 3513.12, which this rule does not amend, explains the criteria that the BLM considers when approving a waiver, suspension, or reduction in rental or minimum royalty, or a reduction in the royalty rate.
This final rule adds a new § 3513.17, which explains how the BLM implements royalty rate reductions
Section 39 of the MLA, 30 U.S.C. 209, authorizes the Secretary to reduce royalty rates and rental fees when in his judgment it is necessary to do so to promote development, or when in his judgment the leases cannot be successfully operated under the terms provided therein. This provision of the MLA authorizes the Secretary to provide across-the-board royalty rate relief for all lessees who are developing non-energy minerals leased by the Federal Government, as long as the Secretary finds that it is necessary to do so in order to promote development. Promoting development will help ensure operations can continue, preserve jobs, and help ensure that domestic commodities from those operations remain available.
Section 3513.17 is outlined as follows:
Paragraph (a) of § 3513.17 implements section 39 of the MLA in the regulations, enabling the BLM to reduce rental fees, royalty rates, or minimum production requirements on its own initiative, whereas previously, the BLM could provide rate relief only upon application on a case-by-case basis. This new section allows the BLM, on behalf of the Secretary of the Interior, to provide such relief in order to promote
Paragraph (b) of § 3513.17 explains that the BLM may implement a reduction in response to an application submitted under § 3513.15. This is not a change from existing practice, but it is included to demonstrate the difference between the application process of § 3513.15 and a BLM-initiated reduction under § 3513.17(a).
Paragraph (c) of § 3513.17 describes how the BLM will limit reductions implemented under § 3513.17. Section 3513.17(c) applies both to reductions that the BLM implements on its own initiative under § 3513.17(a) and to reductions that the BLM implements in response to an application under § 3513.17(b). Under paragraph (c) of this section, reductions are limited either by duration or by tonnage. That is, reductions either are limited in duration to not more than 10 years from the date on which BLM implements a reduction under either paragraph (a) or (b), or are limited to not more than a specific tonnage that the lessee produces, as determined by the BLM, under paragraph (b). The BLM determines the specific time or tonnage limit appropriate for each reduction on a case-by-case basis. The BLM will determine the duration of a reduction or a tonnage limit based on projected market conditions or geologic hazard attributes for each application, or for the subject area or industry. If a reduction is in response to an application under § 3513.17(b), the reason or reasons set forth in the application will help determine the appropriate term or tonnage limit of the reduction.
Prior to 1999, there was no requirement in the BLM's regulations that a reduction would be temporary, though in practice reductions generally have been temporary.
The BLM anticipates setting a time limit (rather than a maximum production volume) when issuing an area- or industry-wide reduction to promote development. The final rule limits the reduction to not more than 10 years, but the BLM may determine that a shorter period is appropriate. Market conditions can fluctuate over a 10-year period, and a longer period in a single grant may not be appropriate. Past legislation for reductions expired after 5 years, so a 10-year term was chosen as a maximum, with the option to make the term shorter, if appropriate.
When a lessee submits an application under § 3513.15, in certain circumstances, such as areas with geologic hazards, it might be more appropriate to apply a fixed tonnage limit rather than applying a time limit. Qualified BLM personnel would then calculate a fixed tonnage using known, estimated, or historic production determined by current mining style, rock type, and operator production capabilities or volume required to overcome a geologic hazard.
Under the existing regulations, the BLM has often used a fixed tonnage when applying a constraint to the royalty rate reduction for a lease. The tonnage constraint ensures that the lessee produces the amount of a mineral projected over a particular period, but prevents the lessee from refocusing production exclusively to an area with a reduced royalty rate and producing a greater amount of the mineral at the reduced royalty rate.
While there is no specific process in the regulations for an extension of these constraints, the final rule does not limit the number of times that lessees may apply for a reduction under § 3513.15.
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is significant because it may raise novel legal or policy issues.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, reduce uncertainty, and use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
The final rule will reduce duplicative information requirements for non-energy solid leasable minerals operators who apply for a reduction of rental, royalties or minimum production. The final rule will also more fully implement the Secretary's authority under section 39 of the MLA, 30 U.S.C. 209, to provide these reductions to promote development.
The BLM reviewed the requirements of the final rule and determined that it would not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. For more detailed information, see the Regulatory Impact Analysis (RIA) prepared for this rule. The RIA has been posted in the docket for the rule on the Federal eRulemaking Portal:
This final rule is an E.O. 13771 deregulatory action. As discussed in section 1 and detailed in section 3 of the RIA, the estimated cost of the final rule is negative (a net benefit) in that it could produce a benefit to society from greater overall non-energy solid leasable (NESL) minerals economic activity. This leads to the final rule having an annual net benefit of between $0 and $
The BLM does not expect a change of Federal revenues from promulgation of this rule, as it does not directly affect royalty rates. If the BLM were to reduce royalty rates subsequent to this rulemaking, there may be a decrease in federal revenues collected in order to ensure the greatest ultimate recovery.
E.O. 13893, “Increasing Government Accountability for Administrative Actions by Reinvigorating Administrative PAYGO” (Oct. 10, 2019), requires agencies to “include one or more proposals for reducing mandatory spending whenever an agency proposes to undertake a discretionary administrative action that would increase mandatory spending. section 3 of E.O. 13893 defines “discretionary administrative action” in part as an administrative action that is not required by statute and would impact mandatory spending. This rulemaking adopts regulatory language to more closely align with the broad statutory authority, including at 30 U.S.C. 290.
For the purpose of examining the rule under E.O. 12866, the BLM analyzed what the potential impacts would be if the royalty rates for these commodities were reduced, including reduced contributions to the U.S. Treasury. The scenarios examined are hypothetical and would not take effect with the issuance of this rule. Because this rule does not directly affect royalty rates, the BLM cannot at this time assess the impact of specific royalty rate adjustments that may be implemented at a future date. The statute allows the Secretary to make a decision in order to ensure the greatest ultimate recovery of the resource. While we estimate that the potential royalty rate reductions could reduce contributions to the U.S. Treasury, there may be instances where royalty reductions could incentivize mining to continue for a longer duration on public lands, versus closure of operations, and therefore could ensure royalty payments at a reduced rate for a longer time horizon. The Mineral Leasing Act envisions a fluctuating minerals market in which the Secretary may need to waive, suspend, or reduce royalty rates in order to ensure the greatest ultimate recovery of the resource. This rulemaking takes into account the markets for a given mineral at a certain snapshot in time.
This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
The BLM examined current BLM lessors for soda ash and potash and found that 0 of 5 soda ash lessors, 1 of 3 potash lessors, and 1 of 1 gilsonite lessors are entities that constitute a small business. While this could be considered a substantial number of small businesses in the context of entities affected by this rule, the final rule does not directly have a significant economic impact.
The final rule's only direct economic impact is the reduced information collection requirements for an application, which lessens the burden on the company when applying for a royalty rate reduction. We have calculated this to be an average saving of $680 a year. The rest of this rule gives the BLM tools to potentially reduce royalty rates in the future but does not currently affect industry. The BLM will consider the economic impacts on affected entities when issuing reductions under this final rule.
For the purpose of carrying out its review pursuant to the RFA, the head of the BLM certifies that this final rule will not have a “significant economic impact on a substantial number of small entities.”. The agency certifies this on the basis that the final rule does not have a significant economic impact. A final regulatory flexibility analysis is therefore not required. For a more detailed discussion see the section 2.8 of the RIA.
This rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). This rule:
(a) Does not have an annual effect on the economy of $100 million or more. The BLM estimates that the rule would provide an annual benefit of $619,000 to the economy. Please see the RIA for this rule for a more detailed discussion.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule is designed to lessen the burden on industry, when necessary, while still providing revenue to the government. This revenue is based on commodity price, adjusted royalty rate, and production amounts.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rule may foster positive effects in each of these areas. This rule would improve the BLM's ability to provide relief to the affected industry.
This rule does not impose an unfunded mandate on State, local, tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, tribal governments or the private sector. This rule would affect only the BLM's process for providing reductions to rental, royalties or minimum production requirements of Federal leases. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule does not affect a taking of private property or otherwise have taking implications under E.O. 12630. Section 2(a) of E.O. 12630 identifies policies that do not have takings implications, such as those that abolish regulations, discontinue governmental programs, or modify regulations in a manner that lessens interference with the use of private property. The rule is a deregulatory action and does not interfere with private property. A takings implication assessment is not required.
Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. It does 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. The rule would reduce burdens on industry and more closely align BLM regulations with the relevant statute. A federalism summary impact statement is not required.
This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required. The rule would apply to non-energy mineral leases on the Uintah and Ouray Indian Reservation, Hillcreek Extension, State of Utah (43 CFR 3503.11(b)), but no active leases have been present on those lands for approximately 15 years. There are no plans to grant new leases to any entity at this time, nor is there any entity interested in pursuing leases on those lands. This is a procedural rule that does not change any royalty rates. If the BLM considers implementing an area- or industry-wide reduction under this rule that may have impacts on a tribe or tribes, the BLM would initiate tribal consultation, as appropriate, at that time.
This final rule contains a collection of information that the BLM has submitted to the Office of Management and Budget (OMB) for review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The proposed rule, soliciting comments on the collections of information for 60 days, was published in the
This final rule retains most of the text of the existing regulations while making only a small number of changes. The BLM has determined that the changes in the final rule are necessary to update the process for lessees to seek and for the BLM to grant reductions of rental fees, royalty rates, and/or minimum production requirements associated with all non-energy solid leasable mineral under 43 CFR part 3500.
At present, 32 information collection activities are authorized under control number 1004-0121. This information collection request pertains to this final rule in which the BLM will revise control number 1004-0121 by dividing one previously approved information collection activity, Application for Waiver, Suspension, or Reduction of Rental or Minimum Royalties, or for a Reduction in the Royalty Rate, into two activities. One activity will be limited to applications for suspension of operations, and the other activity will include applications for reductions of rental, royalties, and minimum production. The net result of this revision will be that control number 1004-0121 will include 33 information collection activities.
In addition, the BLM is reducing the hours for the application for reduction of rental, royalties, or minimum production (43 CFR 3513.15 and 3513.16). The result will be a 10-hour reduction of estimated industry staff time, from 100 hours to 90 hours per application, of information that industry has to collect at present to submit an application.
The net reduction of 10 burden hours per year will be a result of revisions of 43 CFR 3513.15 that will simplify applications for reduction of rental, royalties, or minimum production requirements. These revisions will:
• Remove current § 3513.15(f), which at present requires a tabulated statement of the leasable minerals mined for each month covering at least the last twelve months before the filing of the application, and the average production mined per day for each month;
• Move current paragraph (g) to new paragraph (f), but make no other changes to that paragraph, which requires that an application for relief from the minimum production include complete information why minimum production was not attained;
• Remove paragraph (h), which currently requires a detailed statement of expenses and costs of operating the entire lease, and the income from the sale of any leased products;
• Revise current paragraph (i) by requiring “justification” rather than “all facts” showing why the operator cannot successfully operate the mines under the royalty or rental fixed in the lease and other lease terms;
• Move current paragraph (i) to new paragraph (g);
• Remove current paragraph (j), which at present requires that an application for reduction of royalty must include full information about any royalties the lessee pays to anyone other than the United States and a description of the efforts the lessee has made to reduce the other royalties;
• Remove current paragraph (k), which requires documents demonstrating that the total amount of overriding royalties the lessee will pay will not exceed one-half the proposed reduced royalties due the United States;
• Revise current paragraph (l) to require “any other information BLM needs to determine whether the request satisfies the standards in [43 CFR] 3504.25 or [43 CFR] 3513.12.”;
• Move current paragraph (l) to new paragraph (h).
• Form 3504-1, Personal Bond and Power of Attorney under Mineral Lease or Prospecting Permit for Mining Deposits;
• Form 3504-3, Bond Under Lease for Mining Deposits;
• Form 3504-4, Statewide or Nationwide Personal Mineral Bond for Prospecting Permits and Leases—Coal, Sodium, Phosphate, Potassium, Sulphur, and Other Mineral Deposit;
• Form 3510-1, Prospecting Application and Permit;
• Form 3510-2, Phosphate or Sodium Use Permit; and
• Form 3520-7, ___Lease.
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:
(1) 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) 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,
If you wish to comment on the information collection activities, you may send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA. To see a copy of the information collection request submitted to OMB, go to
The BLM has determined that the changes made by this final rule are administrative or procedural in nature in accordance with 43 CFR 46.210(i) (“Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case”). Further, the final rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA. Therefore, this action is categorically excluded from environmental review under the National Environmental Policy Act (NEPA).
This rule is not a significant energy action under the definition in E.O. 13211. This rule would amend only BLM regulations that could impact non-energy solid leasable minerals. A Statement of Energy Effects is not required.
Government contracts, Hydrocarbons, Mineral royalties, Mines, Phosphate, Potassium, Public lands-mineral resources, Reporting and recordkeeping requirements, Sodium, Sulphur, Surety bonds.
For the reasons set out in the preamble, the Bureau of Land Management amends 43 CFR part 3500 as follows:
5 U.S.C. 552; 30 U.S.C. 189, 192c, and 209; 43 U.S.C. 1701
Yes. The BLM has a process that may allow you temporary relief from these lease requirements in accordance with 30 U.S.C. 209.
You must submit your application with the following information for all leases involved:
(a) The serial numbers;
(b) The name of the record title holder(s);
(c) The name of the operator and operating rights owners if different from the record title holder(s);
(d) A description of the lands by legal subdivision, if the application is for a portion of the lease;
(e) A map showing the serial number and location of each mine or excavation and the extent of the mining operations;
(f) If you are applying for relief from the minimum production requirement, the information sufficient to demonstrate why you did not attain the minimum production;
(g) Justification showing why you cannot successfully operate the mines under the royalty or rental fixed in the lease and other lease terms;
(h) Any other information that BLM needs to determine whether the request satisfies the standards in § 3513.12.
(a) The BLM may reduce rental, royalties, or minimum production on its own initiative if the BLM determines, based on available information, that it is necessary to promote development of the mineral resource. Such a reduction may be for a specific geographic area, or on an industry-wide basis.
(b) The BLM may reduce rental, royalties, or minimum production in response to an application submitted under § 3513.15 if the application meets the criteria in § 3513.12.
(c) The BLM may grant a reduction not to exceed:
(1) 10 years from the date of implementation under paragraph (a) of this section, or
(2) 10 years from the date of the decision to approve the application
Transportation Security Administration, DHS.
Final rule.
This final rule amends the “Security Training for Surface Transportation Employees” (Security Training) final rule (published March 23, 2020, and amended May 1, 2020) to extend the compliance dates by which certain requirements must be completed. TSA is aware that many owner/operators within the scope of this rule's applicability may be unable to meet the compliance deadline for submission of the required security training programs to TSA for approval because of the impact of COVID-19 as well as actions taken at various levels of government to address this public health crisis. In response, TSA is extending the compliance deadline for submission of the required security training program to no later than March 22, 2021. Should TSA determine that an additional extension of time is necessary based upon the impact of the COVID-19 public health crisis, TSA will publish a document in the
Harry Schultz (TSA; Policy, Plans, and Engagement, Surface Division) or David Kasminoff (TSA, Senior Counsel; Regulations and Security Standards; Office of Chief Counsel) by telephone at (571) 227-5563 or email to
TSA published the Security Training Final Rule on March 23, 2020.
On August 10, 2020, several members of the Surface Transportation Security Advisory Committee (STSAC)
They also indicated a need to focus on training to address these issues, such as employee responsibilities for personal medical screening, workplace hygiene, social distancing, and repeated cleanings daily of transportation vehicles and facilities used by co-workers, employees in other sectors, and the public generally. They indicated that the responsible leads and supporting staffs necessary to develop and implement a security training program that meets TSA's requirements are the same individuals who are currently focusing their efforts on assuring worker and public health and safety while sustaining operations throughout the continuing national public health emergency caused by COVID-19.”
TSA recognizes the impact of COVID-19 on our surface stakeholders and the need to provide some relief at a time when many owner/operators are simultaneously leveraging a range of resources to address multiple challenging circumstances, and struggling financially and limiting operations due to the effects of the COVID-19 public health crisis. After considering the current operational environment and the purpose of this regulation, TSA has decided to maintain the current effective date for the rule but to further extend the compliance deadline in § 1570.109(b) for security program submission to March 22, 2021. This extension would provide the industry with a total of 180 days of relief for submission of security training programs as compared to the original deadline of September 20, 2020, and extend the deadline for initial training of all employees in security-sensitive positions into the late spring and early summer of 2022.
TSA takes this action without prior notice and public comment. Sections 553(b) and (d) of the Administrative Procedure Act (5 U.S.C. 553) authorize agencies to dispense with certain rulemaking procedures when they find good cause to do so. Under section 553(b), the requirements of notice and opportunity to comment do not apply when the agency for good cause finds that these procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d) allows an agency, upon finding good cause, to make a rule effective immediately, thereby avoiding the 30-day delayed effective date requirement in section 553.
This final rule recognizes the need to extend the compliance deadline for the requirement in the Security Training Final Rule that would be most difficult for owner/operators to implement during the current COVID-19 public health crisis and the significant disruption and uncertainty in both private and local government operations caused by this crisis. Specifically, TSA is extending the period during which owner/operators must develop a security training program for their employees and submit the program to TSA for approval. Delaying this requirement also effectively delays the deadline for training employees.
TSA has good cause to delay the compliance deadline for submission of security training programs without advance notice and comment or a delayed effective date.
The Paperwork Reduction Act of 1995 (PRA)
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 costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 defines “significant regulatory action” as one that is likely to result in a rule that may (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action,” under Executive Order 12866. Accordingly, OMB has not reviewed it.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires Federal agencies to consider the potential impact of regulations on small businesses, small government jurisdictions, and small organizations during the development of their rules. This final rule, however, makes changes for which notice and comment are not necessary. Accordingly, DHS is not required to prepare a regulatory flexibility analysis.
A rule has federalism implications under E.O. 13132, if it has a substantial direct effect on State governments, 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 has analyzed this rule under E.O. 13132 and determined that although this rule affects the States, it does not impose substantial direct compliance costs or preempt State law.
The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to assess the effects of their regulatory actions. In particular, the UMRA 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 million (adjusted for inflation) or more in any
TSA has reviewed this rulemaking for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has determined that this action will not have a significant effect on the human environment. This action is covered by categorical exclusion (CATEX) number A3(e) in DHS Management Directive 023-01 (formerly Management Directive 5100.1), Environmental Planning Program, which guides TSA compliance with NEPA.
Commuter bus systems, Crime, Fraud, Hazardous materials transportation, Motor carriers, Over-the-Road bus safety, Over-the-Road buses, Public transportation, Public transportation safety, Rail hazardous materials receivers, Rail hazardous materials shippers, Rail transit systems, Railroad carriers, Railroad safety, Railroads, Reporting and recordkeeping requirements, Security measures, Transportation facility, Transportation Security-Sensitive Materials.
For the reasons stated in the preamble, the Transportation Security Administration amends 49 CFR part 1570 as follows:
18 U.S.C. 842, 845; 46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and 46105; Pub. L. 108-90 (117 Stat. 1156, Oct. 1, 2003), sec. 520 (6 U.S.C. 469), as amended by Pub. L. 110-329 (122 Stat. 3689, Sept. 30, 2008) sec. 543 (6 U.S.C. 469); Pub. L. 110-53 (121 Stat. 266, Aug. 3, 2007) secs. 1402 (6 U.S.C. 1131), 1405 (6 U.S.C. 1134), 1408 (6 U.S.C. 1137), 1413 (6 U.S.C. 1142), 1414 (6 U.S.C. 1143), 1501 (6 U.S.C. 1151), 1512 (6 U.S.C. 1162), 1517 (6 U.S.C. 1167), 1522 (6 U.S.C. 1170), 1531 (6 U.S.C. 1181), and 1534 (6 U.S.C. 1184).
(b) * * *
(1) Submit its program to TSA for approval no later than March 22, 2021.
(2) If commencing or modifying operations so as to be subject to the requirements of subpart B to 49 CFR parts 1580, 1582, or 1584 after March 22, 2021, submit a training program to TSA no later than 90 calendar days before commencing new or modified operations.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification; quota transfer.
NMFS announces that the Commonwealth of Virginia is transferring a portion of its 2020 commercial bluefish quota to the State of North Carolina. This quota adjustment is necessary to comply with the Atlantic Bluefish Fishery Management Plan quota transfer provisions. This announcement informs the public of the revised commercial bluefish quotas for Virginia and North Carolina.
Effective October 22, 2020 through December 31, 2020.
Laura Hansen, Fishery Management Specialist, (978) 281-9225.
Regulations governing the Atlantic bluefish fishery are found in 50 CFR 648.160 through 648.167. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.162, and the final 2020 allocations were published on June 29, 2020 (85 FR 38794).
The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan (FMP) published in the
Virginia is transferring 25,000 lb (11,340 kg) of bluefish commercial quota to North Carolina through mutual agreement of the states. This transfer was requested to ensure that North Carolina would not exceed its 2020 state quota. The revised bluefish quotas for 2020 are: Virginia, 253,682 lb (115,068 kg) and North Carolina, 971,058 lb (440,464 kg).
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 648.162(e)(1)(i) through (iii), which was issued pursuant to section 304(b), and is exempted from review under Executive Order 12866.
16 U.S.C. 1801
Federal Deposit Insurance Corporation.
Notice of proposed rulemaking with request for public comment.
In order to streamline Federal Deposit Insurance Corporation (FDIC) regulations, the FDIC proposes to rescind and remove from the Code of Federal Regulations (CFR) regulations entitled
Comments must be received on or before November 25, 2020.
You may submit comments by any of the following methods:
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Please include your name, affiliation, address, email address, and telephone number(s) in your comment. All statements received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. You should submit only information that you wish to make publicly available.
Donald Hamm, Special Advisor, (202) 898-3528,
The policy objective of the proposed rule is to simplify the FDIC's regulations by removing unnecessary regulations and realigning existing regulations in order to improve the public's understanding of the rules and to improve the ease of the public's reference to them. Thus, as further detailed in this section, the FDIC proposes to rescind and remove from the CFR part 390, subpart O.
Subpart O includes definitions related to State savings association subsidiaries,
The FDIC has determined that the requirements for State savings association subordinate organizations set forth in subpart O are substantially similar to requirements of section 28 and its implementing regulations, subpart C and subpart D of part 362 of the FDIC's Rules and Regulations, and section 37 of the FDI Act.
The Dodd-Frank Act, signed into law on July 21, 2010, provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding
Pursuant to section 316(c) of the Dodd-Frank Act,
Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act
As noted, on July 14, 2011, operating pursuant to this authority, the FDIC's Board of Directors reissued and re-designated certain transferring regulations of the former OTS. These transferred OTS regulations were published as new FDIC regulations in the
In 1996, the OTS adopted part 559, entitled
The definitions in part 559 were derived in large part from existing OTS regulatory or statutory definitions.
Part 559 addressed securities and investments issues related to savings associations as well. Section 559.12 included a replacement for an existing OTS regulation that required a savings association to notify the OTS before a subsidiary issues securities, regardless of the purpose for which the proceeds will be used, and incorporated requirements providing that securities issued by all subsidiaries state that they are not covered by federal deposit insurance and may not be called or accelerated in the event of the savings association's insolvency.
12 CFR part 559, as discussed above, was transferred to the FDIC with nominal changes. It is now found in the FDIC's rules at subpart O, entitled
Section 316(b)(3) of the Dodd-Frank Act in pertinent part, provides that the regulations of the former OTS, as they apply to State savings associations, will be enforceable by the FDIC until they are modified, terminated, set aside, or superseded in accordance with applicable law.
Section 28 of the FDI Act prohibits a State savings association from engaging
Subpart C of part 362 governs the activities of insured State savings associations and implements section 28(a) of the FDI Act, which restricts and prohibits insured state savings associations and their service corporations from engaging in activities and investments of a type that are not permissible for a Federal savings association and their service corporations.
Subpart D of part 362 governs acquiring, establishing, or conducting new activities through a subsidiary by an insured State savings association, and implements section 18(m) of the FDI Act, which requires that prior notice be given to the FDIC when an insured savings association establishes or acquires a subsidiary or engages in any new activity in a subsidiary. In doing so it applies the definitions of § 362.2 unless otherwise indicated. The phrase “activity permissible for a Federal savings association” means any activity authorized for a Federal savings association under any statute including the Home Owners' Loan Act (HOLA),
Section 390.250 sets forth the FDIC's general rulemaking and supervisory authority under the FDI Act, its specific authority under section 18(m) of the Federal Deposit Insurance Act
Part 362, which includes subparts C and D, is issued pursuant to several FDIC authorities, including the FDIC's general rulemaking authority pursuant to section 9(a)(Tenth) and section 28 of the FDI Act, the FDIC's statutory authority over the activities of State savings associations and subsidiaries, that are substantially similar to the authorizing statutes pursuant to which subpart O and § 390.250 were issued. Therefore, the FDIC is proposing to remove subpart O and proposes to use part 362, subparts C and D, as applicable, to achieve substantially similar supervisory results for State savings associations and subsidiaries as could be obtained through subpart O.
Section 390.251 is a definition section related to subordinate organizations. Included in the definitions section are:
The
The definition of
In the 1996 preamble to part 559, the OTS stated that the
Lastly, the FDIC believes that a separate definition for
For these reasons, the FDIC proposes to rescind § 390.251 in its entirety.
Section 390.252 requires State savings associations and their subordinate organizations to operate in a manner that demonstrates to the public that they are separate corporate entities because of concerns that a failure to maintain separate corporate existences could potentially result in a court, for equitable reasons, holding the savings association liable for the obligations of the subordinate organization.
The core eligibility requirements in § 362.4(c) describe corporate separateness in the context of the state-chartered depository institution-subsidiary. The eligible subsidiary requirements in 362.4(c)(2)—which are more detailed than eligible subsidiary requirements of 390.252—are designed specifically for the bank/subsidiary relationship, and provide for separation between the state-chartered depository institution and its subsidiary to lessen the possibility of piercing the corporate veil; deduction of the state-chartered depository institution investment in the subsidiary to segregate the capital supporting the state-chartered depository institution from the capital supporting the subsidiary; and limitations on the state-chartered depository institution's investment in the subsidiary and on transactions with the subsidiary to ensure transactions are arms-length.
The provisions of § 362.4(c)(2) that are duplicative of § 390.251 require that an eligible subsidiary: (1) Meet applicable statutory or regulatory capital requirements and have sufficient operating capital for normal obligations that are reasonably foreseeable for a business of its size and character; (2) be physically separate and distinct in its operations from the operations of the state-chartered depository institution; (3) maintain separate accounting and other business records; (4) observe separate business entity formalities; (5) conduct business pursuant to independent policies and procedures designed to inform customers and prospective customers of the subsidiary that the subsidiary is a separate organization from the state-chartered depository institution; and (6) that the state-chartered depository institution is not responsible for, and does not guarantee, the obligations of the subsidiary.
State savings associations and service corporations that qualify as eligible depository institutions and eligible subsidiaries pursuant to § 362.4(c) maintain separate corporate identities, which should sufficiently insulate State savings associations from the liabilities of subsidiaries. For this reason, the FDIC proposes to remove and rescind § 390.252 as duplicative.
Pursuant to § 390.253, a State savings association must file a notice with the FDIC prior to establishing, acquiring or engaging in new activities of a subsidiary as required under section 18(m) of the FDI Act.
Section 363(7) of the Dodd-Frank Act amended section 18(m) of the FDI Act to change notification requirements for insured savings associations as a result of the transfer of the powers, duties, and functions formerly performed by the OTS that were divided among the FDIC, as to State savings associations, and the Office of the Comptroller of the Currency (OCC), as to Federal savings associations.
Section 390.254 permits a State savings association subsidiary to issue, either directly or through a third party intermediary, any securities that its parent State savings association is permitted to issue. The subsidiary must not state or imply that the securities it issues are covered by federal deposit insurance, nor may it issue any security the payment, maturity, or redemption of which may be accelerated upon the condition that State savings association is insolvent or is placed into receivership.
The OCC retained certain of these requirements for operating subsidiaries and service corporations of Federal savings associations in the 2015 final rule integrating licensing rules of national banks and Federal savings associations.
State savings association subsidiaries are permitted to issue securities pursuant to section 28 of the FDI Act because the operating subsidiaries and service corporations of Federal savings associations are permitted to issue securities, subject to regulatory limitations. State savings associations and subsidiaries are reminded that subsidiary issuances, like other permissible activities, are subject to the same restrictions or conditions imposed on the Federal savings association and must be conducted in the same manner in which an operating subsidiary or service corporation is authorized to issue such securities.
Accordingly, a State savings association subsidiary should not state or imply that the securities it issues are covered by Federal deposit insurance, or issue any security the payment, maturity, or redemption of which may be accelerated upon the condition that the controlling State savings association is insolvent or has been placed into receivership, and for as long as any securities are outstanding, the controlling State savings association must maintain all records generated through each securities issuance in the ordinary course of business, including but not limited to a copy of the prospectus, offering circular, or similar document concerning such issuance, and make such records available for examination by the FDIC. For these reasons, the FDIC proposes to remove and rescind § 390.254.
Section 390.255 generally permits a State savings association to notify the FDIC at least 30 days before making a contribution or a loan (including a guarantee of a loan made by any other person) to a lower-tier entity (salvage investment) that exceeds the maximum amount otherwise permitted under law or regulation to exercise its power to salvage the underlying asset (typically, an outstanding loan). Without the salvage power provision, the maximum amount a State savings association would be permitted would be related the loans to one borrower limit (LTOB Limit), which is equivalent to the applicable state's legal lending limit.
The salvage power doctrine was a long-held position of the OTS and its
Because a State savings association derives its powers, including salvage power, from its respective State chartering banking agency, there may be lack of uniformity among State LTOB Limits (or legal lending limit).
For these reasons, the FDIC proposes to remove and rescind § 390.255.
As of June 30, 2020, the FDIC supervised 3,270 depository institutions, of which 35 (1.1 percent) are State savings associations.
Additionally, the proposed rule would amend certain sections of part 362 to remove the references to Federal savings association notice requirements because Federal savings associations are no longer required to provide notice to the FDIC prior to the establishment, or acquisition, of a subsidiary, or prior to commencement of a new activity in a subsidiary controlled by a Federal savings association.
Section 390.250 sets forth the FDIC's general rulemaking and supervisory authority under the FDI Act, its specific authority under section 18(m) of the Federal Deposit Insurance Act
Section 390.251 is a definition section related to subordinate organizations. As previously discussed, the FDIC believes that the definitions of
Section 390.252 requires State savings associations and their subordinate organizations to operate in a manner that demonstrates to the public that they are separate corporate entities because of concerns that a failure to maintain separate corporate existences could potentially result in a court, for equitable reasons, holding the savings association liable for the obligations of
Section 390.253 establishes notification requirements for State savings associations prior to their establishing, acquiring or engaging in new activities of a subsidiary as required under section 18(m) of the FDI Act.
Section 362.15 established notification requirements for State and Federal savings associations prior to their establishing or acquiring a subsidiary, or conducting any new activity through a subsidiary. As discussed previously, after the Dodd-Frank Act amendment of section 18(m) of the FDI Act, Federal savings associations are no longer required to provide notice to the FDIC prior to the establishment, or acquisition, of a subsidiary, or prior to the commencement of a new activity in a subsidiary controlled by a federal savings association.
Section 390.254 permits a State savings association subsidiary to issue, either directly or through a third party intermediary, any securities that its parent State savings association is permitted to issue. As discussed previously, although there is no corollary regulation for FDIC-supervised depository institutions, State savings association subsidiaries are permitted to issue securities pursuant to section 28 of the FDI Act because the operating subsidiaries and service corporations of Federal savings associations are permitted to issue securities, subject to regulatory limitations. Therefore, the FDIC believes that the proposed rescission of § 390.254, if adopted, is unlikely to have any substantive effect on State savings associations or their subsidiaries.
Section 390.255 generally permits a State savings association to notify the FDIC at least 30 days before making a contribution or a loan (including a guarantee of a loan made by any other person) to a lower-tier entity (salvage investment) that exceeds the maximum amount otherwise permitted under law or regulation to exercise its power to salvage the underlying asset (typically, an outstanding loan).
By removing duplicative or unnecessary regulations the FDIC believes that the proposed rule will benefit State savings associations by clarifying regulations and improving the ease of references.
The FDIC has considered alternatives to the rule but believes that the amendments represent the most appropriate option for covered institutions. As discussed previously, the Dodd-Frank Act transferred certain powers, duties, and functions formerly performed by the OTS to the FDIC. The FDIC's Board reissued and redesignated certain transferred regulations from the OTS, but noted that it would evaluate them and might later incorporate them into other FDIC regulations, amend them, or rescind them, as appropriate. The FDIC has evaluated the existing regulations relating to certain subordinate organizations of State savings associations. The FDIC considered the status quo alternative of retaining the current regulations, but did not choose to do so. The FDIC believes it would be unnecessary for FDIC-supervised institutions to continue to refer to these separate sets of regulations, and is therefore proposing to amend and rescind them.
The FDIC invites comments on all aspects of this proposed rulemaking, and specifically requests comments on the following:
Written comments must be received by the FDIC no later than November 25, 2020.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The proposed rule would rescind and remove from FDIC regulations subpart O. The proposed rule will not create any new or revise any existing collections of information under the PRA. Therefore, no information collection request will be submitted to the OMB for review.
The Regulatory Flexibility Act (RFA), requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of the proposed rule on small entities.
As of June 30, 2020, the FDIC supervised 3,270 insured depository institutions, of which 2,548 are considered small banking organizations for the purposes of RFA. The proposed rule primarily affects regulations that govern State savings associations.
As explained previously, the proposed rule would remove §§ 390.250 through 390.255 of subpart O because these sections are unnecessary or redundant of existing federal banking laws or regulations that prescribe requirements subsidiaries of State savings associations. Because these regulations are redundant to existing regulations, rescinding them would not have any substantive effects on small FDIC-supervised institutions.
Based on the information above, the FDIC certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities.
Section 722 of the Gramm-Leach-Bliley Act
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.
Administrative practice and procedure, Authority delegations (Government agencies), Bank deposit insurance, Banks, banking, Investments, Reporting and recordkeeping requirements.
Administrative practice and procedure, Advertising, Aged, Civil rights, Conflict of interests, Credit, Crime, Equal employment opportunity, Fair housing, Government employees, Individuals with disabilities, Reporting and recordkeeping requirements, Savings associations.
For the reasons stated in the preamble, the Federal Deposit Insurance Corporation proposes to amend 12 CFR parts 362 and 390 as follows:
12 U.S.C. 1816, 1818, 1819(a)(Tenth), 1828(j), 1828(m), 1828a, 1831a, 1831e, 1831w, 1843(l).
No State insured savings association may establish or acquire a subsidiary, or conduct any new activity through a subsidiary, unless it files a notice in compliance with § 303.142(c) of this chapter at least 30 days prior to establishment of the subsidiary or commencement of the activity and the FDIC does not object to the notice. This requirement does not apply to any State savings association that acquired its principal assets from a Federal savings bank that was chartered prior to October 15, 1982, as a savings bank under State law.
12 U.S.C. 1819.
Subpart F also issued under 5 U.S.C. 552; 559; 12 U.S.C. 2901
Subpart G also issued under 12 U.S.C. 2810
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 Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Sikorsky Aircraft Model S-61L, S-61N, S-61NM, and S-61R helicopters and Sikorsky Aircraft Corporation Model S-61A, S-61D, S-61E, and S-61V restricted category helicopters. This proposed AD was prompted by the manufacturer determining that there may be arm assemblies in service that have accumulated 15,000 or more hours time-in-service (TIS), which exceeds the service life limit for this component. This proposed AD would require reviewing the mixer unit component log card or equivalent record and, depending on the number of hours TIS, calculating the remaining life of the arm assembly or removing the arm assembly from service. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by December 10, 2020.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this NPRM, contact Sikorsky Aircraft Corporation, 6900 Main Street, P.O. Box 9729, Stratford, CT 06615; phone: 203-386-4000. You may view this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call 817-222-5110.
You may examine the AD docket on the internet at
Neil Doh, Aerospace Engineer, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7757; fax: 781-238-7199; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
Except for Confidential Business Information as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Neil Doh, Aerospace Engineer, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
The FAA proposes to adopt a new AD for Sikorsky Aircraft Model S-61L, S-61N, S-61NM, and S-61R helicopters and Sikorsky Aircraft Corporation Model S-61A, S-61D, S-61E, and S-61V restricted category helicopters, with an arm assembly, part number S6140-62614-009, installed. The FAA learned from Sikorsky Aircraft Corporation that Sikorsky S-61 Helicopter Alert Service Bulletin (ASB) 61B General-1, Revision No. Z, dated November 13, 2018, which is applicable to Sikorsky Model S-61L, S-61N, S-61NM, and S-61R helicopters, failed to include the life limit of the redesigned arm assembly. As a result, Sikorsky Aircraft Corporation determined that there may be arm assemblies in service with 15,000 or more hours TIS, which exceeds the service life limit for this component. The proposed actions are intended to prevent an arm assembly from remaining in service beyond its life limit. This condition, if not addressed, could result in reduced or loss of tail rotor control and reduced control of the helicopter.
The FAA is issuing this NPRM because the agency has determined that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
The FAA reviewed Sikorsky S-61 Helicopter ASB 61B40-11, Basic Issue, dated March 2, 2020 (“the ASB”). The ASB describes procedures for a one-time inspection of the mixer unit component log card to verify the arm assembly life limit and, if the life limit has been exceeded, to replace the arm assembly for Sikorsky Model S-61L, S-61N, and S-61NM helicopters. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA reviewed Sikorsky S-61 Helicopter ASB 61B General-1, Revision AA, dated February 24, 2020. This service information summarizes and lists parts with mandatory retirement times and inspections for Sikorsky Model S-61L, S-61N, and S-61NM helicopters.
This proposed AD would require reviewing the mixer unit component log card or equivalent record and, depending on the hours time-in-service of the arm assembly, calculating the remaining life of the arm assembly or removing the arm assembly from service.
The ASB is effective only for Sikorsky Aircraft Model S-61L, S-61N, and S-61NM helicopters. In addition to these helicopters, the applicability of this proposed AD also includes Sikorsky Aircraft Model S-61R helicopters and Sikorsky Aircraft Corporation Model S-61A, S-61D, S-61E, and S-61V restricted category helicopters. The FAA is proposing to expand the applicability to prevent the installation of arm assemblies that have exceeded their life limits on helicopters with a similar type design as those helicopters affected by the ASB.
The FAA estimates that this AD, as proposed, would affect 13 helicopters of U.S. registry.
The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary log entry or replacement that would be required based on the results of the proposed mixer unit component log or equivalent record review. The FAA has no way of determining the number of helicopters that might need this log entry or replacement:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all costs in the cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments by December 10, 2020.
None.
This AD applies to Sikorsky Aircraft Model S-61L, S-61N, S-61NM, and S-61R helicopters and Sikorsky Aircraft Corporation
Joint Aircraft System Component (JASC) Code 6720, Tail Rotor Control System.
This AD was prompted by the manufacturer determining that there may be arm assemblies in service with 15,000 or more hours time-in-service (TIS), which exceeds the life limit for this component. The FAA is issuing this AD to prevent reduced or loss of tail rotor control. This unsafe condition, if not addressed, could result in reduced control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 90 days after the effective date of this AD, review the mixer unit component log card or equivalent record to determine if the affected arm assembly is entered with the appropriate 15,000 hours TIS life limit.
(2) If the affected arm assembly is not included on the mixer unit component log card or equivalent record, within 90 days after the effective date of this AD, add the arm assembly entry to the mixer unit component log card or equivalent record and determine the remaining life of the arm assembly using the Accomplishment Instructions, Section 3.A.(3) of Sikorsky S-61 Helicopter Alert Service Bulletin (ASB) 61B40-11, Basic Issue, dated March 2, 2020 (“the ASB”).
(3) If, based on the review required by paragraphs (g)(1) and (2) of this AD, the arm assembly has accumulated 15,000 or more hours TIS, before further flight, remove the arm assembly from service. If the hours TIS for the affected arm assembly cannot be determined, before further flight, remove the affected arm assembly from service.
(4) For arm assemblies that have not accumulated 15,000 or more hours TIS, thereafter, continue to determine the remaining life of the arm assembly and remove the arm assembly from service before it accumulates 15,000 hours TIS.
You may take credit for adding the arm assembly entry to the mixer unit component log card or equivalent record and determining the remaining life of the arm assembly required by paragraphs (g)(1) and (2) of this AD if you performed these actions before the effective date of this AD using Sikorsky S-61 Helicopter ASB 61B General-1, Revision AA, dated February 24, 2020.
Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), are subject to the requirements of paragraph (g)(3) of this AD. Operators who are prohibited from further flight due to exceeding the life limit in paragraph (g)(3) of this AD, may only perform a maintenance check or a one-time ferry flight to a location where the affected arm assembly can be removed from service. This ferry flight must be performed with only essential flight crew.
(1) The Manager, Boston ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k)(1) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Neil Doh, Aerospace Engineer, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7757; fax: 781-238-7199; email:
(2) For service information identified in this AD, contact Sikorsky Aircraft Corporation, 6900 Main Street, P.O. Box 9729, Stratford, CT 06615; phone: 203-386-4000. You may view this referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call 817-222-5110.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for Airbus Helicopters Deutschland GmbH Model MBB-BK117 A-1, MBB-BK117 A-3, MBB-BK117 A-4, MBB-BK117 B-1, MBB-BK117 B-2, MBB-BK117 C-1, and MBB-BK117 C-2 helicopters. This proposed AD would require inspecting the tail gearbox (TGB) bellcrank attachment arm (arm) for a crack. This proposed AD was prompted by a report of a cracked TGB arm. The actions of this proposed AD are intended to address an unsafe condition on these products.
The FAA must receive comments on this proposed AD by December 10, 2020.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N Forum Drive, Grand Prairie, TX 75052; telephone 972-641-0000 or 800-232-0323; fax 972-641-3775; or at
David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2018-0046, dated February 19, 2018, to correct an unsafe condition for Airbus Helicopters Deutschland GmbH (AHD) (formerly Eurocopter Deutschland GmbH, Eurocopter Hubschrauber GmbH, Messerschmitt-Bölkow-Blohm GmbH), Airbus Helicopters Inc. (formerly American Eurocopter LLC) Model MBB-BK117 A-1, MBB-BK117 A-3, MBB-BK117 A-4, MBB-BK117 B-1, MBB-BK117 B-2, MBB-BK117 C-1, and MBB-BK117 C-2 helicopters. The EASA AD advises that a crack was detected on a Model MBB-BK117 A-4 TGB arm and that this condition, if not corrected, could result in disconnection of the arm from the TGB and possible loss of control of the helicopter. To address this unsafe condition, the EASA AD requires an inspection of the TGB arm for a crack and for surface anomalies.
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that an unsafe condition is likely to exist or develop on other products of the same type design.
The FAA reviewed Airbus Helicopters Alert Service Bulletin (ASB) MBB-BK117 C-2-65A-008 for Model MBB-BK117 C-2 helicopters and ASB MBB-BK117-30A-120 for Model MBB-BK117 A-1, MBB-BK117 A-3, MBB-BK117 A-4, MBB-BK117 B-1, MBB-BK117 B-2, and MBB-BK117 C-1 helicopters, each Revision 0 and dated January 31, 2018. The service information contains procedures for inspecting the TGB arm for a crack and surface anomalies.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This proposed AD would require the following:
• Within 100 hours time-in-service, removing the surface coating from the TGB bellcrank attachment arm and using a 5X or higher power magnifying glass, dye-penetrant inspecting the TGB arm for a crack and for any dent, nick, and scratch.
• If there is a crack, before further flight, replacing the TGB.
• If there is a dent, nick, or scratch, before further flight, removing the surface material up to 0.2 mm using 80-grit abrasive paper and repeating the dye penetrant inspection. If there is a crack or if the damage cannot be removed, before further flight, replacing the TGB.
• If there is no crack and no dent, nick, or scratch, before further flight, finishing the surface with 600-grit or finer abrasive paper.
The EASA AD requires operators to contact Airbus Helicopters if there is a crack or if there is damage that cannot be repaired by removing surface material. This proposed AD would require replacing the TGB instead.
The FAA estimates that this proposed AD would affect 177 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 proposed AD.
Removing the surface protection and inspecting the TGB arm for a crack would take about 2 work-hours and the cost of materials would be minimal, for an estimated cost of $170 per helicopter and $30,090 for the U.S. fleet.
If required, reworking the TGB arm would take about 1 work-hour and the cost of materials would be minimal, for an estimated cost of $85 per helicopter. Replacing a TGB with a cracked arm would take about 4.5 work-hours and cost about $69,000 for required parts, for an estimated cost of $69,383 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
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) applies to Airbus Helicopters Deutschland GmbH Model MBB-BK117 A-1, MBB-BK117 A-3, MBB-BK117 A-4, MBB-BK117 B-1, MBB-BK117 B-2, MBB-BK117 C-1, and MBB-BK117 C-2 helicopters, certificated in any category.
This AD defines the unsafe condition as a crack in a tail gearbox (TGB) bellcrank attachment arm. This condition could result in disconnection of the bellcrank attachment arm from the TGB and subsequent loss of control of the helicopter.
The FAA must receive comments by December 10, 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 100 hours time-in-service:
(1) Remove the surface coating from the TGB bellcrank attachment arm and using a 5X or higher power magnifying glass, dye-penetrant inspect the TGB arm for a crack and for any dent, nick, and scratch in the area shown in Figure 1 of Airbus Helicopters Alert Service Bulletin (ASB) MBB-BK117 C-2-65A-008 or ASB MBB-BK117-30A-120, each Revision 0 and dated January 31, 2018, as applicable to your model helicopter.
(2) If there is a crack, before further flight, replace the TGB.
(3) If there is a dent, a nick, or a scratch, before further flight, remove the surface material up to 0.2 mm using 80-grit abrasive paper and repeat the dye penetrant inspection. If there is a crack or if the damage cannot be removed, before further flight, replace the TGB.
(4) If there is no crack and no dent, nick, or scratch, before further flight, finish the surface with 600-grit or finer abrasive paper.
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 14 CFR part 91, subpart K, the FAA suggests that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (now European Union Aviation Safety Agency) (EASA) AD No. 2018-0046, dated February 19, 2018. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 6520, Tail Rotor Gearbox.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Airbus SAS Model A350-941 and -1041 airplanes. This proposed AD was prompted by a report that certain retaining rings could cause damage to frame forks, brackets and edge frames, and their surface protection; subsequent investigation showed that the depth of the frame fork spotfacing on structural parts is inadequate to accommodate the retaining ring. This proposed AD would require repetitive inspections of certain areas of each cargo door for damage and corrective action. This proposed AD would also provide an optional terminating modification, as specified in a European Union Aviation Safety Agency (EASA) AD, which will be incorporated by reference. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by December 10, 2020.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For material that will be incorporated by reference (IBR) in this AD, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
You may examine the AD docket on the internet at
Kathleen Arrigotti, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3218; email
The FAA invites you to participate in this rulemaking by submitting written comments, data, or views about this proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time. Send your comments to an address listed under the
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments received by the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this NPRM because of those comments.
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Kathleen Arrigotti, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3218; email
The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0144, dated June 29, 2020 (“EASA AD 2020-0144”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A350-941 and -1041 airplanes.
This proposed AD was prompted by a report that certain retaining rings could cause damage to frame forks, brackets and edge frames, and their surface protection; subsequent investigation showed that the depth of the frame fork spotfacing on structural parts is inadequate to accommodate the retaining ring. The FAA is proposing this AD to address inadequate frame fork spotfacing depth for the retaining rings, which could reduce the structural integrity of the airplane. See the MCAI for additional background information.
EASA AD 2020-0144 describes procedures for repetitive inspections of the edge frames, brackets, frame forks, and the access cover on the internal side of each cargo door for damage (including cracks and corrosion) and corrective actions. Corrective actions include repair or rework. EASA AD 2020-0144 also describes procedures for an optional modification of each affected cargo door, which terminates the repetitive inspections. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is proposing this AD because the FAA evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in EASA AD 2020-0144 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0144 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2020-0144 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is
The FAA estimates that this proposed AD affects 13 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this proposed AD.
According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all known costs in the cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments by December 10, 2020.
None.
This AD applies to all Airbus SAS Model A350-941 and -1041 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 52, Doors.
This AD was prompted by a report that certain retaining rings could cause damage to frame forks, brackets and edge frames, and their surface protection; subsequent investigation showed that the depth of the frame fork spotfacing on structural parts is inadequate to accommodate the retaining ring. The FAA is issuing this AD to address inadequate frame fork spotfacing depth for the retaining rings, which could reduce the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2020-0144, dated June 29, 2020 (“EASA AD 2020-0144”).
(1) Where EASA AD 2020-0144 refers to its effective date, this AD requires using the effective date of this AD.
(2) The “Remarks” section of EASA AD 2020-0144 does not apply to this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) For information about EASA AD 2020-0144, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(2) For more information about this AD, contact Kathleen Arrigotti, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3218; email
Federal Energy Regulatory Commission, Department of Energy.
Notice of proposed rulemaking.
In this Notice of Proposed Rulemaking, the Federal Energy Regulatory Commission proposes to amend the definition of useful thermal energy output in its regulations implementing the Public Utility Regulatory Policies Act of 1978 to recognize the technical evolution of cogeneration.
Comments are due November 25, 2020.
Comments, identified by docket number, may be filed electronically at
1. In this Notice of Proposed Rulemaking (NOPR), the Federal Energy Regulatory Commission (Commission) proposes to revise its regulations (PURPA Regulations)
2. PURPA was enacted in 1978 as part of a package of legislative proposals intended to reduce the country's dependence on oil and natural gas, which at the time were in short supply and subject to dramatic price increases.
3. In enacting PURPA, Congress could not, and did not, predict specific technological developments that would occur in future years, but instead recognized the Commission's discretion by directing the Commission to “from time to time thereafter revise[ ] such rules as it determines necessary to encourage cogeneration.”
4. Due to innovation and development in the last decade, Solid Oxide Fuel Cell
5. We thus propose to add a new paragraph (4) to § 292.202(h) of its PURPA Regulations to amend the definition of “[u]seful thermal energy output” of a topping cycle cogeneration facility to include thermal energy that is used by a Solid Oxide Fuel Cell system with an integrated steam hydrocarbon reformation process for production of fuel for electricity generation. This definition would clarify that the thermal energy produced by a Solid Oxide Fuel Cell that then uses the thermal energy it produces to reform methane and produce hydrogen for electricity generation is useful thermal energy that would enable a facility powered by such fuel cells to be certified as a cogeneration QF.
6. We seek comments on these proposed reforms 30 days from the date of publication of the NOPR in the
7. PURPA was part of a legislative package Congress enacted in 1978 to address the energy crisis then facing the country.
8. Congress enacted PURPA section 210 in 1978 to address the energy crisis by encouraging the development of QFs and thereby reducing the country's demand for traditional fossil fuels.
9. In 1980, the Commission issued Order No. 70, which promulgated the required rules that, as relevant here, remain in effect today.
10. In 2005, Congress passed the Energy Policy Act of 2005 (EPAct 2005).
11. Unlike more traditional electric generation that relies on combustion of fossil fuels to produce electric energy, fuel cells convert the chemical energy in hydrogen to electric energy without combustion. This conversion has been characterized as a significant improvement in the efficiency of electric generation.
12. If the natural gas reformation equipment were instead located offsite, then waste heat (in the form of steam) from the electricity production by the Solid Oxide Fuel Cell would not be available to aid the reformation process to fuel the cell. In this offsite reformation scenario, we would expect the external reformation process to require additional natural gas to be burned to create steam so that the remainder of the input natural gas could be reformed into hydrogen.
13. Stated another way, integrating the natural gas reformation process into a Solid Oxide Fuel Cell generating facility as described in this NOPR
14. As discussed above, the statutory definition of cogeneration facilities requires that a cogeneration facility produce “(i) electric energy, and (ii) steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes. . . .”
15. Currently, the Commission's PURPA regulations provide that a topping-cycle cogeneration facility is a cogeneration facility in which the energy input to the facility is first used to produce useful power output and at least some of the reject heat from the power production process is then used to provide useful thermal energy.
16. Solid Oxide Fuel Cell systems with integrated natural gas reformation equipment convert the chemical energy within natural gas into electricity using a steam-methane reformation process,
17. A cogeneration QF is one that “produces electric energy as well as steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes.”
18. In sum, recognizing technological advancements over the past 40 years and Congress's commitment to “continuing progress in the development of efficient electric energy generating technology,”
19. In proposing this change to its regulations, the Commission does not propose to revise § 292.205(d) of the PURPA Regulations, which establishes additional criteria for new cogeneration facilities seeking to sell electric energy pursuant to PURPA section 210.
20. The Paperwork Reduction Act
Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], by email to
Please send comments concerning the collection of information and the associated burden estimates to: Office of Information and Regulatory Affairs, Office of Management and Budget [Attention: Federal Energy Regulatory Commission Desk Officer]. Due to security concerns, comments should be sent directly to
21. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human
22. The proposed changes to the PURPA Regulations do not authorize or fund particular generation that may happen to qualify as QFs, nor do they license or issue permits for operation of generation that may happen to qualify as QFs; such generation can be built and operated independent of,
23. The Regulatory Flexibility Act of 1980 (RFA)
24. The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.
25. The Commission does not expect the proposed revision, if adopted, to affect a substantial number of small entities. This proposed rule directly affects only certain QFs,
26. The Commission invites interested persons to submit comments on the matters and issues proposed in this document to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due November 25, 2020. Comments must refer to Docket Nos. RM21-2-000 and RM20-20-000, and must include the commenter's name, the organization the commenter represents, if applicable, and the commenter's address.
27. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's website at
28. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426.
29. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.
30. In addition to publishing the full text of this document in the
31. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
32. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at
Electric power plants, Electric utilities, Reporting and recordkeeping requirements.
By direction of the Commission.
In consideration of the foregoing, the Commission proposes to amend part
16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.
The revisions and addition read as follows:
(h) * * *
(2) That is used in a heating application (
(3) That is used in a space cooling application (
(4) That is used by a solid oxide fuel cell system with an integrated steam hydrocarbon reformation process for production of fuel for electricity generation.
National Labor Relations Board.
Proposed rule; extension of comment period.
By this Notice of Proposed Rulemaking, the National Labor Relations Board (NLRB) is announcing a reopening of the period to submit comments to the initial comments (or reply comments) to the Notice of Proposed Rulemaking issued in the
The reply comment period for the proposed rule published July 29, 2020, at 85 FR 45553, is reopened. Reply comments to the Notice of Proposed Rulemaking must be received by the Board on or before October 27, 2020.
Internet—Federal eRulemaking Portal. Electronic comments may be submitted through
Delivery—Comments should be submitted by mail or hand delivery to: Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. Because of security precautions, the Board continues to experience delays in U.S. mail delivery. You should take this into consideration when preparing to meet the deadline for submitting comments. The Board encourages electronic filing. It is not necessary to send comments if they have been filed electronically with
Only comments submitted through
The Board will post, as soon as practicable, all comments received on
Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001, (202) 273-1940 (this is not a toll-free number), 1-866-315-6572 (TTY/TDD).
The National Labor Relations Board (“NLRB” or “Board”) published a Notice of Proposed Rulemaking in the
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public of our intention to reinstate the animal health status of the Cantons of Neuchâtel and Ticino in Switzerland as free of Newcastle disease. This recognition is based on an assessment we have prepared in connection with this action, which we are making available for review and comment.
We will consider all comments that we receive on or before December 28, 2020.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Rebecca Gordon, Import Risk Analyst, Regionalization Evaluation Services, Strategy & Policy, Veterinary Services, APHIS, USDA, 920 Main Campus Drive, Suite 200, Raleigh, NC 27606;
The regulations in 9 CFR part 94 govern the importation of animal products into the United States in order to ensure that the products do not introduce or spread diseases or pests of livestock. Section 94.6 contains regulations governing the importation of carcasses, meat, parts or products of carcasses, and eggs (other than hatching eggs) of poultry, game birds, or other birds from areas in which Newcastle disease (ND) is known to exist. The section provides that the Animal and Plant Health Inspection Service (APHIS) will maintain a list on the internet of regions in which ND is not known to exist. It further provides that, should a region be removed from the list due to an outbreak, APHIS will reinstate the region to the list in accordance with the procedures in 9 CFR 92.4.
Section 92.4 provides that after removing disease-free status from all or part of a region, APHIS may reassess the disease situation in that region to determine whether it is necessary to continue import prohibitions or restrictions. When reassessing the region's disease status, APHIS considers the standards of the World Organization for Animal Health for reinstatement of disease-free status, as well as all relevant information obtained through publicly available means or collected by or submitted to APHIS through other means. Prior to removing import prohibitions or restrictions, APHIS makes the information regarding its assessment of the region's disease status available to the public for comment through a notice published in the
APHIS previously issued an import alert on November 22, 2017, notifying trade partners that the Canton of Ticino, in Switzerland, which had previously been considered to be a region in which ND is not known to exist, was now affected with ND. APHIS had previously determined that the Canton of Neuchâtel was affected with ND in 2011. In accordance with the regulations in § 94.6, concurrent to these determinations, APHIS placed restrictions on the importation of poultry products for commodities from the two cantons.
APHIS completed a
The report may be viewed on the
After reviewing any comments we receive, we will announce our decision regarding the disease status of the Cantons of Neuchâtel and Ticino with respect to ND in a subsequent notice.
7 U.S.C. 1622 and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4.
Foreign Agricultural Service, USDA.
Notice.
This notice announces the transfer of amounts for certain dairy articles from the historical license category (Appendix 1) to the lottery (nonhistorical) license category (Appendix 2) pursuant to the Dairy Tariff-Rate Quota Import Licensing regulations, 7 CFR part 6, for the 2020 quota year.
October 26, 2020.
Abdelsalam El-Farra, (202) 720-9439;
The Foreign Agricultural Service, under a delegation of authority from the Under Secretary for Trade and Foreign Agricultural Affairs, administers the Dairy Tariff-Rate Quota Import Licensing Regulation codified at 7 CFR 6.20-6.36 that provides for the issuance of licenses to import certain dairy articles under tariff-rate quotas (TRQs) as set forth in the Harmonized Tariff Schedule (HTS) of the United States. These dairy articles may only be entered into the United States at the low-tier tariff by or for the account of a person or firm to whom such licenses have been issued and only in accordance with the terms and conditions of the regulation.
Licenses are issued on a calendar year basis, and each license authorizes the license holder to import a specified quantity and type of dairy article from a specified country of origin. The Multilateral Affairs Division, Foreign Agricultural Service, U.S. Department of Agriculture, issues these licenses and, in conjunction with U.S. Customs and Border Protection, U.S. Department of Homeland Security, monitors their use.
The regulation at 7 CFR 6.34(a) states that whenever a historical license (Appendix 1) is permanently surrendered, revoked by the Licensing Authority, or not issued to an applicant pursuant to the provisions of § 6.23, then the amount of such license will be transferred to Appendix 2. Section 6.34(b) provides that the cumulative annual transfers will be published by notice in the
Pursuant to the Congressional Review Act (5 U.S.C. 801
October 29, 2020, 11:00 a.m. EDT.
Conference Call.
Open to the public.
The Chemical Safety and Hazard Investigation Board (CSB) will convene a public meeting on Thursday, October
This meeting will only be available via the dial in number below.
If you require a translator or interpreter, please notify the individual listed below as the “Contact Person for Further Information,” at least three business days prior to the meeting.
Audience members should use the following dial-in number and Pin to join the conference:
The CSB is an independent federal agency charged with investigating incidents and hazards that result, or may result, in the catastrophic release of extremely hazardous substances. CSB Board Members are appointed by the President and confirmed by the Senate. CSB investigations look into all aspects of chemical accidents and hazards, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems.
The time provided for public statements will depend upon the number of people who wish to speak. Speakers should assume that their presentations will be limited to three minutes or less, but commenters may submit written statements for the record.
Hillary Cohen, Communications Manager, at
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Missouri Advisory Committee (Committee) will hold a meeting on Wednesday, October 28, 2020 at 12:00 p.m. (Central) for the purpose of the meeting is to discuss and vote on the Voting/Covid memorandum.
The meeting will be held on Wednesday, October 28, 2020 at 12:00 p.m. (Central).
David Barreras, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following call-in number: 800-353-6461, conference ID: 9605153. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Individual who is deaf, deafblind and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 230 S Dearborn Street, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324 or emailed to David Barreras at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite 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. Public comments were previously requested via the
• If children in the household are reported to have received school meals, a new follow-up question asks:
○ Did your children continue receiving free/reduced price meals through your school or school district if schools were closed during the Coronovirus-COVID-19 pandemic?”
Given widespread school closings in response to the COVID-19 pandemic, many school districts have shifted to alternative ways to distribute free school meals to children. However, the ability for families to take up these programs likely varies in ways that cannot be uniformly predicted, so adding a follow-up question about receipt of school meals during school closures helps to improve data quality on the market value of these benefits.
• Three new questions regarding stimulus payments are added for all households.
○ During 2020, did you or anyone receive any stimulus payments or payments received from the Department of the Treasury due to the Coronavirus Covid-19 pandemic?
○ Who was the stimulus payment for?
○ What was the amount of the stimulus payment you received for all covered adults and children in the household?
Stimulus payment information will allow researchers to estimate the amount of such payments received by households. The coronavirus stimulus payments disbursed in 2020 were based on income from 2018 or 2019, making it nearly impossible to model with only the 2020 income. This information will provide accurate data on stimulus payments received to properly estimate after-tax income for the SPM.
This information collection request may be viewed at
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
Coating Place, Inc. (CPI) submitted a notification of proposed production activity to the FTZ Board for its facility in Verona, Wisconsin. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on October 16, 2020.
The applicant has submitted a separate application for FTZ designation at the company's facility under FTZ 266. The facility is used for the contract manufacturing of pharmaceutical products. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status material and specific finished product described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt CPI from customs duty payments on the foreign-status component used in export production. On its domestic sales, for the foreign-status material noted below, CPI would be able to choose the duty rate during customs entry procedures that applies to lasmiditan drug product intermediate (duty free). CPI would be able to avoid duty on foreign-status material which become scrap/waste. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The material sourced from abroad is lasmiditan hemisuccinate active pharmaceutical ingredient (duty rate, 6.5%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary and sent to:
A copy of the notification will be available for public inspection in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Diane Finver at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily finds that Heze Huayi Chemical Co., Ltd. (Heze Huayi) made sales of chlorinated isocyanurates from the People's Republic of China (China) at less than
Applicable October 26, 2020.
Sean Carey, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3964.
On July 29, 2019, Commerce initiated the administrative review of the AD order on chlorinated isocyanurates (chlorinated isos) from China covering the period June 1, 2018 through May 31, 2019.
On February 21, 2020, Commerce extended the deadline for the preliminary determination of this administrative review.
For a complete description of the events that followed the initiation of this review,
The products covered by the order are chlorinated isos, which are derivatives of cyanuric acid, described as chlorinated s-triazine triones.
Commerce is conducting this administrative review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). Export prices have been calculated in accordance with section 772 of the Act. Because China is a non-market economy within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c) of the Act.
For a full description of the methodology underlying our conclusions,
On August 28, 2019, Kangtai reported that it had no entries of subject merchandise during the POR.
Commerce preliminarily determines that the following weighted-average dumping margin exists for Heze Huayi for the period of June 1, 2018 through May 31, 2019:
Commerce intends to disclose the calculations for these preliminary results within five days of the date of publication of this notice, in accordance with 19 CFR 351.224(b).
Interested parties may submit case briefs within 30 days after the date of publication of these preliminary results of review.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, within 30 days of the date of publication of this notice.
Commerce intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the
Upon issuing the final results of this review, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
In accordance with 19 CFR 351.212(b)(1), we are calculating importer- or customer- specific assessment rates for the merchandise subject to this review. For any individually examined respondent whose weighted-average dumping margin is above
For entries that were not reported in the U.S. sales database submitted by an exporter individually examined during this review, Commerce will instruct CBP to liquidate such entries at the China-wide rate. Additionally, if Commerce determines that an exporter under review had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number will be liquidated at the China-wide rate.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporter listed above, the cash deposit rate will be the rate established in the final results of this review (except, if the rate is zero or
This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213 and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable October 19, 2020.
Margaret Collins at (202) 482-6250 (the Republic of Armenia (Armenia)); George McMahon at (202) 482-1167 (Brazil); Benjamin Smith at (202) 482-2181 (the Sultanate of Oman (Oman)); Mike Heaney at (202) 482-4475 (the Russian Federation (Russia)); Christopher Williams at (202) 482-5166 (the Republic of Turkey (Turkey)); AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On September 29, 2020, the Department of Commerce (Commerce) received antidumping duty (AD)
On October 2, 2020, Commerce requested supplemental information pertaining to certain aspects of the Petitions in separate supplemental questionnaires.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioners allege that imports of aluminum foil from Armenia, Brazil, Oman, Russia, and Turkey are being, or are likely to be, sold in the United States at less than fair value (LTFV) within the meaning of section 731 of the Act, and that imports of such products are materially injuring, or threatening material injury to, the aluminum foil industry in the United States. Consistent with section 732(b)(1) of the Act, the Petitions are accompanied by information reasonably available to the petitioners supporting their allegations.
Commerce finds that the petitioners filed the Petitions on behalf of the domestic industry, because the petitioners are interested parties, as defined in sections 771(9)(C) and (E) of the Act.
Commerce also finds that the petitioners demonstrated sufficient industry support for the initiation of the requested AD investigations.
Because the Petitions were filed on September 29, 2020, pursuant to 19 CFR 351.204(b)(1), the period of investigation (POI) for the Brazil, Oman, Russia, and Turkey AD investigations is July 1, 2019 through June 30, 2020. Because Armenia is a non-market economy (NME) country, pursuant to 351.204(b)(1), the POI for the Armenia investigation is January 1, 2020 through June 30, 2020.
The product covered by these investigations is aluminum foil from Armenia, Brazil, Oman, Russia, and Turkey. For a full description of the scope of these investigations,
On October 2 and 16, 2020, Commerce requested information from the petitioners regarding the proposed scope to ensure that the scope language in the Petitions is an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the
Commerce requests that any factual information that parties consider relevant to the scope of the investigations be submitted during this period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact Commerce and request permission to submit the additional information. All such submissions must be filed on the records of the concurrent AD and CVD investigations.
All submissions to Commerce must be filed electronically via Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS), unless an exception applies.
Commerce is providing interested parties an opportunity to comment on the appropriate physical characteristics of aluminum foil to be reported in response to Commerce's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant costs of production accurately, as well as to develop appropriate product-comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General
In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all product characteristics comments must be filed by 5:00 p.m. ET on November 9, 2020, which is the next business day after 20 calendar days from the signature date of this notice.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, Commerce shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs Commerce to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both Commerce and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations.
In determining whether the petitioners have standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in the appendix to this notice. To establish industry support, the petitioners provided the 2019 production of the domestic like product by U.S. producers that support the Petitions.
Our review of the data provided in the Petitions, the General Issues Supplement, and other information readily available to Commerce indicates that the petitioners have established industry support for the Petitions.
The petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at LTFV. In addition, the petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioners contend that the industry's injured condition is illustrated by a significant and increasing volume of subject imports; reduced market share; underselling and price depression or suppression; lost sales and revenues; declining domestic production, shipments, and capacity utilization; negative effects on domestic industry employment; and a decline in financial performance and profitability.
The following is a description of the allegations of sales at LTFV upon which Commerce based its decision to initiate AD investigations of imports of aluminum foil from Armenia, Brazil, Oman, Russia, and Turkey. The sources of data for the deductions and adjustments relating to U.S. price and normal value (NV) are discussed in greater detail in the country-specific AD Initiation Checklists.
For Armenia, Brazil, Oman, Russia, and Turkey, the petitioners based export price (EP) or constructed export price (CEP), as applicable, on pricing information for sales of, or sales offers for, aluminum foil produced in and exported from each country. The petitioners made certain adjustments to U.S. price to calculate a net ex-factory U.S. price.
For Brazil, Oman, Russia, and Turkey, the petitioners based NV on home market price quotes obtained through market research for aluminum foil produced in and sold, or offered for sale, in each country within the applicable time period.
Commerce considers Armenia to be a non-market economy (NME) country.
The petitioners claim that South Africa is an appropriate surrogate country for Armenia because South Africa is a market economy country that is at a level of economic development comparable to that of Armenia and is a significant producer of identical merchandise. The petitioners provided publicly available information from South Africa to value all FOPs. Based on the information provided by the petitioners, we determine that it is appropriate to use South Africa as a surrogate country for initiation purposes.
Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs within 30 days before the scheduled date of the preliminary determination.
Because information regarding the volume of inputs consumed by Armenian producers/exporters was not reasonably available, the petitioners used their own product-specific consumption rates as a surrogate to value Armenian manufacturers' FOPs.
Based on the data provided by the petitioners, there is reason to believe that imports of aluminum foil from Armenia, Brazil, Oman, Russia, and Turkey are being, or are likely to be, sold in the United States at LTFV. Based on comparisons of EP or CEP, as applicable, to NV in accordance with sections 772 and 773 of the Act, the estimated dumping margins for aluminum foil for each of the countries covered by this initiation are as follows: (1) Armenia—45.65 percent; (2) Brazil—63.05 percent; (3) Oman—57.74 percent; (4) Russia—62.18 percent; and (5) Turkey—34.27 percent.
Based upon the examination of the Petitions and supplemental responses, we find that they meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of aluminum foil from Armenia, Brazil, Oman, Russia, and Turkey are being, or are likely to be, sold in the United States at LTFV. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.
In the Petitions, the petitioners named seven companies in Brazil, three companies in Russia, and ten companies in Turkey
On October 15, 2020, Commerce released CBP data on imports of aluminum foil from Brazil, Russia, and Turkey under Administrative Protective Order (APO) to all parties with access to information protected by APO and indicated that interested parties wishing to comment on the CBP data must do so within three business days of the publication date of the notice of initiation of these investigations.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on Commerce's website at
In the Petition, the petitioners named only one company as a producer/exporter of aluminum foil in Oman, Oman Aluminum Rolling Company.
In the Petition, the petitioners named only one company as a producer/exporter of aluminum foil in Armenia, Rusal Armenal.
In accordance with our standard practice for respondent selection in AD investigations involving NME countries, Commerce selects respondents based on quantity and value (Q&V) questionnaires in cases where it has determined that the number of companies is large and it cannot individually examine each company based upon its resources. Therefore, considering the number of Armenian producers and exporters identified in the Petitions and the CBP import data, Commerce will solicit Q&V information that can serve as a basis for selecting exporters for individual examination in the event that Commerce decides to limit the number of respondents individually examined pursuant to section 777A(c)(2) of the Act. Commerce has determined that it will issue a Q&V questionnaire to the potential respondent for which the petitioners have provided a complete address.
In addition, Commerce will post the Q&V questionnaire along with filing instructions on Enforcement and Compliance's website at
Responses to the Q&V questionnaire must be submitted by the relevant Armenian producers/exporters no later than 5:00 p.m. ET on November 2, 2020. All Q&V questionnaire responses must be filed electronically via ACCESS. An electronically filed document must be received successfully, in its entirety, by ACCESS no later than 5:00 p.m. ET on the deadline noted above. Commerce intends to finalize its decisions regarding respondent selection within 20 days of publication of this notice.
In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.
Commerce will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the AD Petitions have been provided to the governments of Armenia, Brazil, Oman, Russia, and Turkey via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the AD Petitions to each exporter named in the AD Petitions, as provided under 19 CFR 351.203(c)(2).
Commerce will notify the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the AD Petitions were filed, whether there is a reasonable indication that imports of aluminum foil from Armenia, Brazil, Oman, Russia, and Turkey are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). Section 351.301(b) of Commerce's regulations requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Section 773(e) of the Act addresses the concept of particular market situation for purposes of CV, stating that “if a particular market situation exists such that the cost of materials and fabrication or other processing of any kind does not accurately reflect the cost of production in the ordinary course of trade, the administering authority may use another calculation methodology under this subtitle or any other calculation methodology.” When an interested party submits a PMS allegation pursuant to section 773(e) of the Act, Commerce will respond to such a submission consistent with 19 CFR 351.301(c)(2)(v). If Commerce finds that a PMS exists under section 773(e) of the Act, then it will modify its dumping calculations appropriately.
Neither section 773(e) of the Act, nor 19 CFR 351.301(c)(2)(v), set a deadline for the submission of PMS allegations and supporting factual information. However, in order to administer section 773(e) of the Act, Commerce must receive PMS allegations and supporting factual information with enough time to consider the submission. Thus, should an interested party wish to submit a PMS allegation and supporting new factual information pursuant to section 773(e) of the Act, it must do so no later than 20 days after submission of a respondent's initial section D questionnaire response.
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by Commerce. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in a letter or memorandum of the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Parties should review
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. Parties wishing to participate in these investigations should ensure that they meet the requirements of 19 CFR 351.103(d) (
This notice is issued and published pursuant to sections 732(c)(2) and 777(i) of the Act, and 19 CFR 351.203(c).
The merchandise covered by these investigations is aluminum foil having a thickness of 0.2 mm or less, in reels exceeding 25 pounds, regardless of width. Aluminum foil is made from an aluminum alloy that contains more than 92 percent aluminum. Aluminum foil may be made to ASTM specification ASTM B479, but can also be made to other specifications. Regardless of specification, however, all aluminum foil meeting the scope description is included in the scope, including aluminum foil to which lubricant has been applied to one or both sides of the foil.
Excluded from the scope of these investigations is aluminum foil that is backed with paper, paperboard, plastics, or similar backing materials on one side or both sides of the aluminum foil, as well as etched capacitor foil and aluminum foil that is cut to shape. Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above. The products under investigation are currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7607.11.3000, 7607.11.6090, 7607.11.9030, 7607.11.9060, 7607.11.9090, and 7607.19.6000.
Further, merchandise that falls within the scope of these proceedings may also be entered into the United States under HTSUS subheadings 7606.11.3060, 7606.11.6000, 7606.12.3045, 7606.12.3055, 7606.12.3091, 7606.12.3096, 7606.12.6000, 7606.91.3095, 7606.91.6095, 7606.92.3035, and 7606.92.6095. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these investigations is dispositive.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 66 Workshop for South Atlantic Tilefish.
The SEDAR 66 stock assessment of the South Atlantic stock of Tilefish will consist of a data scoping webinar, a workshop, and a series of assessment webinars. See
The SEDAR 66 South Atlantic Tilefish Workshop will be held via webinar on from 9 a.m. until 2 p.m. EST each day from November 16-19, 2020. The established times may be adjusted as necessary to accommodate the timely completion of discussion relevant to the assessment process. Such adjustments may result in the meeting being extended from or completed prior to the time established by this notice. Additional SEDAR 66 webinar dates and times will publish in a subsequent issue in the
Kathleen Howington, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion at the SEDAR 66 South Atlantic Tilefish workshop are as follows:
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a webinar meeting of its Executive Committee (partially closed session).
The Executive Committee meeting will be held from 10 a.m. to 12 p.m. on Thursday, November 12, 2020.
The meeting will be held via webinar. Webinar registration is required. Details are included in
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 302-8440 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
Meeting information, including the webinar link, agenda, and briefing book materials will be posted on the Council's website at:
Written comments may be directed to John Carmichael, Executive Director, South Atlantic Fishery Management Council (see
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Advisory Panel will hold a public webinar meeting, jointly with the Atlantic States Marine Fisheries Commission's (ASMFC's) Summer Flounder, Scup, and Black Sea Bass Advisory Panel.
The meeting will be held on Tuesday, November 10, 2020, from 1 p.m. until 4 p.m..
The meeting will be held via webinar, which can be accessed at:
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Advisory Panel will meet via webinar jointly with the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Advisory Panel. The purpose of this meeting is to review staff recommendations for 2021 recreational management measures for summer flounder, scup and black sea bass, and to provide Advisory Panel input to the Monitoring Committee, Council, and ASMFC on the 2021 recreational management measures for all three species.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
16 U.S.C. 1801
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication
This information collection request may be viewed at
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
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite 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. Public comments were previously requested via the
This information collection request may be viewed at
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
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Advisory Panel and Plan Development Team via webinar to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Tuesday, November 10, 2020 at 9 a.m.
All meeting participants and interested parties can register to join the webinar at
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Scallop Advisory Panel and Plan Development Team will discuss Framework 33: In particular review the results of 2020 scallop surveys, and preliminary projections. The primary focus of this meeting will be to develop input on the range of potential specification alternatives for FY 2021 and FY 2022. Framework 33 will set specifications including ABC/ACLs, days-at-sea, access area allocations, total allowable catch for the Northern Gulf of Maine (NGOM) management area, targets for General Category incidental catch, General Category access area trips and trip accounting, and set-asides for the observer and research programs for fishing year 2020 and default specifications for fishing year 2021. Other business may be discussed, as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
16 U.S.C. 1801
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 November 25, 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.
Megan Wallace, Senior Special Counsel, Division of Clearing and Risk, Commodity Futures Trading Commission, (202) 418-5150; email:
To address these provisions, the Commission promulgated regulations that prohibit arrangements involving FCMs, SDs, MSPs, and DCOs that would (a) disclose to an FCM, SD, or MSP the identity of a customer's original executing counterparty (§§ 1.72(a), 23.608(a), and 39.12(a)(1)(vi)); (b) limit the number of counterparties with whom a customer may enter into a trade (§§ 1.72(b), 23.608(b), and 39.12(a)(1)(vi)); (c) restrict the size of the position a customer may take with any individual counterparty, apart from an overall credit limit for all positions held by the customer at the FCM (§§ 1.72(c), 23.608(c), and 39.12(a)(1)(vi)); (d) impair a customer's access to execution of a trade on terms that have a reasonable relationship to the best terms available (§§ 1.72(d), 23.608(d), and 39.12(a)(1)(vi)); or (e) prevent compliance with specified time frames for acceptance of trades into clearing set forth in 1.74(b), 23.610(b), or 39.12(b)(7) (§§ 1.72(e), 23.608(e), and 39.12(a)(1)(vi)). Additionally, the Commission requires, through regulation 39.12(b)(7)(i)(B), DCOs to coordinate with clearing members to establish prompt processing of trades. Regulations 1.74(a) and 23.610(a) require reciprocal coordination by FCMs, SDs, and MSPs that are clearing members.
Under the above regulations, SDs, MSPs, FCMs, and DCOs are required to develop and maintain written customer clearing documentation and trade processing procedures. Maintenance of contracts, policies, and procedures is prudent business practice. All SDs, MSPs, FCMs, and DCOs maintain documentation consistent with these regulations. The regulations are crucial both for effective risk management and for the efficient operation of trading venues among SDs, MSPs, FCMs, and DCOs. Each of these entities has a general recordkeeping obligation for these requirements under the Commission's regulations (§ 39.20 for DCOs; § 23.606 for SDs and MSPs; and § 1.73 for FCMs).
The information collection burden arising from the regulations primarily is restricted to the costs associated with the affected registrants' obligation to maintain records related to clearing documentation between the customer and the customer's clearing member, and trade processing procedures between DCOs and FCMs, SDs, and MSPs. The information collection obligations are necessary to implement certain provisions of the CEA, including ensuring that registrants exercise effective risk management and for the efficient operation of trading venues among SDs, MSPs, FCMs, and DCOs.
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 August 17, 2020, the Commission published in the
There are no capital costs or operating and maintenance costs associated with this collection.
44 U.S.C. 3501
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is announcing an opportunity for public comment on the proposed renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before December 28, 2020.
You may submit comments, identified by “OMB Control No. 3038-0062” by any of the following methods:
• The Agency's website, at
•
•
Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Gregory Scopino, Special Counsel, Division of Swap Dealer & Intermediary Oversight, Commodity Futures Trading Commission, (202) 418-5175; email:
Under the PRA, 44 U.S.C. 3501
• Regulation 5.5 requires RFEDs, FCMs, and IBs to distribute risk disclosure statements to new retail forex customers.
• Regulation 5.6 requires RFEDs and FCMs to report any failures to maintain the minimum capital required by Commission regulations.
• Regulation 5.8 requires RFEDs and FCMs to calculate their total retail forex obligation.
• Regulation 5.10 requires RFEDs to maintain and preserve certain risk assessment documentation.
• Regulation 5.11(a)(1) requires RFEDs to submit certain risk assessment documentation to the Commission within 60 days of the effective date of their registration.
• Regulation 5.11(a)(2) requires RFEDs to submit certain financial documentation to the Commission within 105 calendar days of the end of each fiscal year. RFEDs must also submit additional information, if requested, regarding affiliates' financial impact on an RFED's organizational structure.
• Regulation 5.12(a) requires RFED applicants to submit a Form 1-FR-FCM concurrently with their registration application.
• Regulation 5.12(b) requires registered RFEDs to file a Form 1-FR-FCM on a monthly and annual basis.
• Regulation 5.12(g) states that, in the event that an RFED cannot file its Form 1-FR-FCM for any period within the time specified in Regulation 5.12(b), the RFED may file an application for an extension of time with its self-regulatory organization.
• Regulation 5.13(a) requires RFEDs and FCMs to provide monthly account statements to their customers.
• Regulation 5.13(b) requires RFEDs and FCMs to provide confirmation statements to their customers within one business day after the execution of any retail forex or forex option transaction.
• Regulation 5.14 requires RFEDs and FCMs to maintain current ledgers of each transaction affecting its asset, liability, income, expense and capital accounts.
• Regulation 5.18(g) requires each RFED, FCM, CPO, CTA, and IB subject to part 5 to maintain a record of all communications received that give rise to possible violations of the Act, rules, regulations or orders thereunder related to their retail forex business.
• Regulation 5.18(i) requires each RFED and FCM to prepare and maintain on a quarterly basis a calculation of non-discretionary retail forex customer accounts open for any period of time during the quarter that were profitable, and the percentage of such accounts that were not profitable.
• Regulation 5.18(j) requires the CCO of each RFED and FCM to certify annually that the firm has in place processes to establish, maintain, review, modify and test policies and procedures reasonably designed to achieve compliance with the Act, rules, regulations and orders thereunder.
• Regulation 5.19 requires each RFED, FCM, CPO, CTA, and IB subject to part 5 to submit to the Commission copies of any dispositive or partially dispositive decision for which a notice of appeal has been filed in any material legal proceeding (1) to which the firm is a party to or to which its property or assets is subject with respect to retail forex transactions, or (2) instituted against any person who is a principal of the firm arising from conduct in such person's capacity as a principal of that firm.
• Regulation 5.20 requires RFEDs, FCMs and IBs to submit documentation requested pursuant to certain types of special calls by the Commission.
• Regulation 5.23 requires RFEDs, FCMs and IBs to notify the Commission regarding bulk transfers and bulk liquidations of customer accounts.
The rules establish reporting and recordkeeping requirements that are necessary to implement the provisions of the Food, Conservation, and Energy Act of 2008
With respect to the collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of 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;
You should submit 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.
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
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 November 25, 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.
Megan Wallace, Senior Special Counsel, Division of Clearing and Risk, Commodity Futures Trading Commission, (202) 418-5150; 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. On August 17, 2020, the Commission published in the
There are no capital costs or operating and maintenance costs associated with this collection.
Federal Student Aid, 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 November 25, 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 Beth Grebeldinger, 202-377-4018.
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.
The adverse credit history section of the eligibility regulations in 34 CFR 685.200(b) and (c) were updated in 2014 by the Department of Education (the Department) when a review of and a change to the regulations was made. Specifically, an applicant for a PLUS loan who is determined to have an adverse credit history must complete loan counseling offered by the Secretary before receiving the Federal PLUS loan.
The Department is requesting a revision to the information collection regarding the adverse credit history regulations in 34 CFR 685.200(b) and (c) and the burden these changes create for Federal PLUS loan borrowers, both parent and graduate/professional students.
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 on October 2, 2020, Golden Pass Pipeline LLC (Golden Pass
The Compression Relocation and Modification Project consists of the following: (1) Relocation of an authorized compressor station from Milepost 66 to Milepost 69 on the Golden Pass Pipeline system; (2) additional compression at the relocated compressor station; (3) establishment of a new interconnection and associated meter station near Milepost 69 to support an interconnect with the proposed interstate pipeline to be constructed and operated by Enable Gulf Run Transmission, LLC (Gulf Run), (4) removal of any bi-directional piping modification to the Interconnect for Tennessee Gas Pipeline, (5) elimination of the proposed and approved 24-inch diameter looping facilities between MP 63 and MP 66 in Calcasieu Parish, Louisiana (Calcasieu Loop), to reflect the relocation of the MP 63 Compressor Station and the elimination of Tennessee Gas Pipeline Company, L.L.C. (Tennessee Gas) Gas as an input source to Golden Pass Pipeline; and (6) minor modifications to existing interconnections at Milepost 66 and Milepost 68. Golden Pipeline Pass estimates the total cost of the Project to be $361,345,000 and proposes a new incremental recourse rate to apply to the Project capacity, all as more fully set forth in the application which is on file with the Commission and open for public inspection.
Golden Pass Pipeline's application states that a water quality certificate under section 401 of the Clean Water Act is required for the project from Louisiana Department of Environmental Quality, Water Quality Division. The request for certification must be submitted to the certifying agency and to the Commission concurrently. Proof of the certifying agency's receipt date must be filed no later than five (5) days after the request is submitted to the certifying agency.
In addition to publishing the full text of this document in the
Any questions regarding the proposed project should be directed to Kevin M. Sweeney, Legal Counsel, Law Office of Kevin M. Sweeney, 1625 K Street NW, Suite 1100, Washington, DC 20006 by phone at (202) 609-7709, or by email at
Pursuant to Section 157.9 of the Commission's Rules of Practice and Procedure,
There are two ways to become involved in the Commission's review of this project: You can file comments on the project, and you can file a motion to intervene in the proceeding. There is no fee or cost for filing comments or intervening. The deadline for filing a motion to intervene is 5:00 p.m. Eastern Time on November 9, 2020.
Any person wishing to comment on the project may do so. Comments may include statements of support or objections to the project as a whole or specific aspects of the project. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please submit your comments on or before November 9, 2020.
There are three methods you can use to submit your comments to the Commission. In all instances, please reference the Project docket number CP21-1-000 in your submission.
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's website at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address below.
The Commission encourages electronic filing of comments (options 1 and 2 above) and has eFiling staff available to assist you at (202) 502-8258 or
Persons who comment on the environmental review of this project will be placed on the Commission's environmental mailing list, and will receive notification when the environmental documents (EA or EIS) are issued for this project and will be notified of meetings associated with the Commission's environmental review process.
The Commission considers all comments received about the project in determining the appropriate action to be taken. However, the filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding. For instructions on how to intervene, see below.
Any person, which includes individuals, organizations, businesses, municipalities, and other entities,
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
There are two ways to submit your motion to intervene. In both instances, please reference the Project docket number CP21-1-000 in your submission.
(1) You may file your motion to intervene by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your motion to intervene, along with three copies, by mailing the documents to the address below
The Commission encourages electronic filing of motions to intervene (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Motions to intervene must be served on the applicant either by mail or email at: 1625 K Street NW, Suite 1100, Washington, DC 20006 or at
All timely, unopposed
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that the Commission received the following electric corporate 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 October 16, 2020, pursuant to sections 206 and 306 of the Federal Power Act, 16 U.S.C. 824e, 825e and Rule 206 of the Federal Energy Regulatory Commission's (Commission)
The Complainant certifies that copies of the complaint were served on the contacts listed for Respondent in the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFiling link at
In addition to publishing the full text of this document in the
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l. In addition to publishing the full text of this document in the
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
This is a supplemental notice in the above-referenced XO Energy CAL, LP'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 November 9, 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 received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility 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 the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l. In addition to publishing the full text of this document in the
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
This is a supplemental notice in the above-referenced HDSI, 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 November 9, 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
This is a supplemental notice in the above-referenced Flat Ridge 3 Wind Energy, 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 November 9, 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
Federal Energy Regulatory Commission.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act), the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-549B (Gas Pipeline Rates: Annual Capacity Reports and Index of Customers).
Comments on the collection of information are due December 28, 2020.
You may submit comments (identified by Docket IC21-4-000) by any of the following methods:
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• Effective 7/1/2020, delivery of filings other than by eFiling or the U.S. Postal Service should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Ellen Brown may be reached by email at
This information collection activity enables shippers to release transportation and storage capacity to other shippers wanting to obtain capacity. The information results in reliable capacity information
The regulation at 18 CFR 284.13(c) requires interstate pipelines to file an index of all its firm transportation and storage customers under contract. This index is due on the first business day of each calendar quarter. In addition, the index must be posted on the pipeline's internet website in a downloadable format complying with specifications established by the Commission. The information posted on the pipeline's internet website must be made available until the next quarterly index is posted. The requirements for the electronic index can be obtained from the Federal Energy Regulatory Commission, Division of Information Services, Public Reference and Files Maintenance Branch, Washington, DC 20426.
The regulation at 18 CFR 284.13(d)(2) requires an annual peak-day capacity report of all interstate pipelines, including natural gas storage-only companies. This report is generally a short report showing the peak day design capacity or the actual peak day capacity achieved, with a short explanation, if needed. The regulation provides that an interstate pipeline must make an annual filing by March 1 of each year showing the estimated peak day capacity of the pipeline's system, and the estimated storage capacity and maximum daily delivery capability of storage facilities under reasonably representative operating assumptions and the respective assignments of that capacity to the various firm services provided by the pipeline.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document that will discuss the environmental impacts of the Hackberry Storage Project involving construction and operation of facilities by LA Storage, LLC (LA Storage) in Cameron and Calcasieu Parishes, Louisiana. The Commission will use this environmental document in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies regarding the project. As part of the National Environmental Policy Act (NEPA) review process, the Commission takes into account concerns the public may have about proposals and the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. This gathering of public input is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the environmental document on the important environmental issues. Additional information about the Commission's NEPA process is described below in the
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document. To ensure that your comments are timely and properly recorded, please submit your
Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the environmental document. Commission staff will consider all written comments during the preparation of the environmental document.
If you submitted comments on this project to the Commission before the opening of this docket on July 1, 2020, you will need to file those comments in Docket No. PF20-5-000 to ensure they are considered.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the project, the Natural Gas Act conveys the right of eminent domain to the company. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law. The Commission does not subsequently grant, exercise, or oversee the exercise of that eminent domain authority. The courts have exclusive authority to handle eminent domain cases; the Commission has no jurisdiction over these matters.
A fact sheet prepared by the FERC entitled An Interstate Natural Gas Facility On My Land? What Do I Need To Know? addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are three methods you can use to submit your comments to the Commission. Please carefully follow these instructions so that your comments are properly recorded. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (PF20-5-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Additionally, the Commission offers a free service called eSubscription, which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. Go to
The purpose of the Hackberry Storage Project is to construct and operate a high-deliverability salt dome natural gas storage facility in Cameron Parish, Louisiana, capable of providing 20.03 billion cubic feet (Bcf) of working gas storage capacity, 1.5 Bcf per day of gas deliverability and injectability, and interconnecting with the Cameron Interstate Pipeline (CIP) facilities operated by Cameron Interstate Pipeline, LLC and the Port Arthur Pipeline Louisiana Connector (PAPLC) facilities to be operated by Port Arthur Pipeline, LLC in Cameron and Calcasieu Parishes, Louisiana.
The project would involve the conversion of three existing salt dome caverns to natural gas storage service and the development of one new salt dome cavern for additional natural gas storage service, all within a permanent natural gas storage facility on a 160-acre tract of land owned by LA Storage. In addition to the storage caverns, LA Storage would construct and operate on-site compression facilities (Pelican Compressor Station) and up to six solution mining water supply wells at the storage facility on LA Storage's property.
The project would also construct:
• The Hackberry Pipeline, consisting of approximately 11.4 miles of 42-inch-diameter natural gas pipeline connecting the certificated PAPLC pipeline (CP18-7) to the natural gas storage caverns;
• the CIP Lateral, an approximately 5.2-mile-long, 42-inch-diameter natural gas pipeline extending from the existing CIP to the planned natural gas storage caverns;
• metering and regulating at the CIP and PAPLC interconnects; and
• an approximately 6.6-mile-long, 16-inch-diameter brine disposal pipeline that would transport brine from the caverns to four saltwater disposal wells located on two pads north of the facility.
The general location of the project facilities is shown in appendix 1.
Construction of the planned facilities would disturb about 441 acres of land. Following construction, LA Storage would maintain about 235 acres for permanent operation of the project's facilities; the remaining acreage would
Any environmental document issued by Commission staff will discuss impacts that could occur as a result of the construction and operation of the planned project under the relevant general resource areas:
• Geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• land use;
• air quality and noise; and
• reliability and safety.
Commission staff will also evaluate reasonable alternatives to the planned project or portions of the project and make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff identify and focus on the issues that might have an effect on the human environment and potentially eliminate others from further study and discussion in the environmental document.
Although no formal application has been filed, Commission staff have already initiated a NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the Commission receives an application. As part of the pre-filing review, Commission staff will contact federal and state agencies to discuss their involvement in the scoping process and the preparation of the environmental document.
If a formal application is filed, Commission staff will then determine whether to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). The EA or the EIS will present Commission staff's independent analysis of the environmental issues. If Commission staff prepares an EA, a
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; Native American Tribes; and other interested parties. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
If you need to make changes to your name/address, or if you would like to remove your name from the mailing list, please return the attached “Mailing List Update Form” (appendix 2).
Once LA Storage files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Only intervenors have the right to seek rehearing of the Commission's decision and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214). Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
Public sessions or site visits will be posted on the Commission's calendar located at
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:
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j. The City of Hamilton and AMP filed their request to use the Traditional Licensing Process on August 28, 2020, and provided public notice of their request on the same date. In a letter dated October 19, 2020, the Director of the Division of Hydropower Licensing approved the City of Hamilton and AMP's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Ohio State Historic Preservation Officer (SHPO) and the Kentucky SHPO, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating the City of Hamilton and AMP as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act; and consultation pursuant to section 106 of the National Historic Preservation Act.
m. The City of Hamilton and AMP filed a Pre-Application Document (PAD); including a proposed process plan and schedule with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD may be viewed and/or printed on the Commission's website (
o. The licensee states its unequivocal intent to submit an application for a new license for Project No. 2614. Pursuant to 18 CFR 16.8, 16.9, and 16.10, each application for a new license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by February 28, 2024.
p. Register online at
Environmental Protection Agency (EPA).
Notice.
Pursuant to the Federal Advisory Committee Act (FACA), the Environmental Protection Agency (EPA) is announcing a virtual, open, public meeting of the Farm, Ranch, and Rural Communities Advisory Committee (FRRCC) on November 12-13, 2020, with remote participation only. There will be no in-person gathering for this meeting.
This virtual public meeting will be held on Thursday, November 12, 2020, from 11 a.m. to approximately 5 p.m., and Friday, November 13, 2020, from 11 a.m. to approximately 5 p.m., Eastern Daylight Time. Members of the public seeking to view the meeting (but not provide oral comments) may register any time prior to the meeting. Members of the public seeking to make oral comments during the virtual meeting must register and contact the Designated Federal Officer directly by 12 p.m. Eastern Daylight Time on November 7, 2020 to be placed on a list of registered commenters and receive special instructions for participation.
To register and receive information on how to attend this virtual meeting, please visit:
Rebecca Perrin, Designated Federal Officer (DFO), at
The purpose of the FRRCC is to provide policy advice, information, and recommendations to the EPA Administrator on a range of environmental issues and policies that are of importance to agriculture and rural communities. The purpose of this meeting is to discuss topics of relevance to agriculture and rural communities, specifically the two charge topics (1) creating a holistic pesticide program for the future and (2) supporting inter-agency environmental benchmarks with interagency partners on the issues of water quality and quantity and food loss and waste. A copy of the FRRCC charges and meeting agenda will be posted at
This meeting will be conducted as a virtual conference. You may attend by registering online before the meeting to receive information on how to participate. You may also submit written or oral comments for the committee by contacting the DFO directly per the processes outlined below.
Attendees should register via the link on this website prior to the meeting in order to receive information on how to participate in the virtual meeting:
The Meeting Agenda and other materials for the virtual conference will be posted on the FRRCC website at
Persons with disabilities who wish to request reasonable accommodations to participate in this event may contact the DFO at
Environmental Protection Agency (EPA).
Notice.
EPA's Office of Transportation and Air Quality (OTAQ) plans to authorize various contractors to access information which is submitted to us under the Clean Air Act and which may be claimed as, or may be determined to be, confidential business information (CBI). The information is related to the registration of fuels and fuel additives under 40 CFR part 79 and to various compositional and performance standards for reformulated gasoline, conventional gasoline, diesel fuel, detergents, and the renewable fuel standard (RFS) under 40 CFR part 80.
The EPA will accept comments on this Notice through November 2, 2020.
You may send comments, identified by Docket ID No EPA-HQ-OAR-2020-0464, by any of the following methods:
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Anne-Marie Pastorkovich, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, MC 6405A, Washington, DC 20460; telephone number: 202-343-9623; email address:
This action is directed to the general public. However, this action may be of particular interest to parties who submit information to the EPA regarding fuel and fuel additive registration (40 CFR part 79) and related to various standards for reformulated and conventional gasoline, diesel fuel, detergents, and the renewable fuel standard (40 CFR part 80). Parties who may be interested in this action include fuel manufacturers (such as refiners and importers), manufacturers of fuel additives, producers of renewable fuels, exporters, parties who engage in Renewable Identification Number (RIN) transactions, and all those who submit 40 CFR part 79 and part 80 registrations or reports to the EPA via any method or system. Such systems include the EPA Central Data Exchange (CDX), DCFUEL, OTAQReg, and the EPA Moderated Transaction System (EMTS).
This
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2020-0464 at
As mentioned above, EPA is suspending its Docket Center and Reading Room for public visitors, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via
The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.
The EPA's Office of Transportation and Air Quality (OTAQ) has responsibility for protecting public health and the environment by regulating air pollution from motor vehicles, engines, and the fuels used to operate them, and by encouraging travel choices that minimize emissions. In order to implement various Clean Air Act programs, and to permit regulated entities flexibility in meeting regulatory requirements (
In accordance with 40 CFR 2.301(h), we have determined that the contractors, subcontractors, and grantees (collectively referred to as “contractors”) listed below require access to CBI submitted to us under the Clean Air Act and in connection with various programs related to the regulation of fuels and fuel additives under both 40 CFR part 79 (subparts A through F) and 40 CFR part 80—(subparts A through O, and appendices). OTAQ collects this data in order to monitor compliance with Clean Air Act programs and, in many cases, to permit regulated parties flexibility in meeting regulatory requirements. For example, data that may contain CBI are collected to register fuels and fuel additives prior to introduction into commerce under 40 CFR part 79. Certain programs under 40 CFR part 80 are designed to permit regulated parties an opportunity to comply on average, or to engage in transactions using various types of credits. Programs utilizing credits include gasoline sulfur, gasoline benzene, and RFS. Data submitted under 40 CFR part 80 includes information related to reformulated and conventional gasoline, diesel fuel, detergents, and renewable fuels. Fuels program data is reviewed and assessed to determine the success of the programs or to plan for regulatory improvements. We are issuing this
Under EPA Contract Number EP-C-16-012, General Dynamics Information Technology (GDIT) located at 650 Peter Jefferson Parkway, Suite 300 Charlottesville, Virginia 22911 provides report processing, program support, technical support and analysis and information technology services that involve access to information claimed as CBI related to 40 CFR parts 79 and 80. The original contractor, CSRA, was purchased by GDIT. The following subcontractors of GDIT continue to provide work under this contract:
• CGI Federal, Inc., 12601 Fair Lakes Circle, Fairfax, VA 22033-4902;
• Powersolv, Inc., 1801 Robert Fulton Drive, Suite 550, Reston, VA 20191 and their subcontractor, Premier Itech, Inc., 8869 Grand Ave., Beulah, CO 81023.
GDIT has added a subcontractor, Potomac Economics, LTD, 9990 Fairfax Blvd., Suite 560, Fairfax, VA 22030 to provide program support, technical support, and data analysis services that involve access to information claimed as CBI related to 40 CFR parts 79 and 80. Access by this subcontractor will begin on November 5, 2020.
Access to data under the GDIT contract will continue until June 30, 2021. If the contract is extended, this access will continue for the remainder of the contract without further notice. If the contract expires prior to June 30, 2021, the access will cease at that time. If GDIT employs additional subcontractors to support EPA on a regular basis or on a limited or one-time basis under the above-listed contract, and those subcontractors require access to CBI, EPA will notify interested parties of the contemplated disclosure and provide them with an opportunity to comment by publishing a notice in the
Under Contract Number EP-C-16-020, ICF Incorporated, LLC, 9300 Lee Highway, Fairfax, Virginia 22031, provides technical support and data analysis services that involve access to information claimed as CBI related to 40 CFR parts 79 and 80. Access to data will begin and will continue until September 30, 2021. If the contract is extended, this access will continue for the remainder of the contract without further notice. If the contract expires prior to September 30, 2021, the access will cease at that time. If ICF employs subcontractors to support EPA on a regular basis or on a limited or one-time basis under the above-listed contract, and those subcontractors require access to CBI, EPA will notify interested parties of the contemplated disclosure and provide them with an opportunity to comment by publishing a notice in the
Under Contract Number 68HERD20A0004, Research Triangle Institute, RTI, P.O. Box 12194, Research Triangle Park, NC 27709-2194, and its subcontractors, Dr. Ruiqing Miao, Auburn University, Auburn, Alabama and Dr. Madhu Khanna, University of Illinois at Urbana-Champaign, Urbana, Illinois, provide technical support and data analysis services that involve access to information claimed as CBI related to 40 CFR parts 79 and 80. Access to data will begin November 5, 2020 and will continue until July 19, 2021. If the contract is extended, this access will continue for the remainder of the contract without further notice. If the contract expires prior to July 19, 2021, the access will cease at that time. If RTI employs additional subcontractors to support EPA on a regular basis or on a limited or one-time basis under the above-listed contract, and those subcontractors require access to CBI, EPA will notify interested parties of the contemplated disclosure and provide them with an opportunity to comment by publishing a notice in the
Parties who want further information about this
Federal Maritime Commission.
Notice and request for comment.
The Federal Maritime Commission (Commission) is giving public notice that the agency has submitted to the Office of Management and Budget (OMB) for approval the
Written comments must be submitted at the addresses below on or before November 25, 2020.
Comments should be addressed to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Shannon Joyce, Desk Officer for Federal Maritime Commission, 725 17th Street NW, Washington, DC 20503,
Copies of the submission(s) may be obtained by contacting Donna Lee at 202-523-5800 or email:
Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
In response to this notice, comments and suggestions should address one or more of the following points: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Office of General Counsel (OGC), FMCS.
Notice of a New System of Records.
The Federal Mediation and Conciliation Service (FMCS) is establishing a new system of records for Freedom of Information Act records (FOIA) and Privacy Act records processing and a FOIA and Privacy Act information technology system new to FMCS that will enable requesters to submit, receive, and appeal their FOIA and Privacy Act requests and decisions via an online portal.
This notice will go in to effect without further notice on October 28, 2020, unless otherwise revised pursuant to comments received. New routine uses will go into effect on November 25, 2020. Comments must be received on or before November 25, 2020.
Office of General Counsel, 250 E Street SW, Washington, DC 20427:
Anna Davis, Deputy General Counsel,
This describes a new system for receiving, processing, and storing FOIA and Privacy Act requests, responses, and appeals.
FMCS-1-FOIA/PA.
Unclassified.
Federal Mediation and Conciliation Service, 250 E Street SW, Washington, DC 20427; AINS 806 W. Diamond Avenue, Gaithersburg, MD 20878.
Sarah Cudahy, General Counsel, FMCS 250 E Street SW, Washington, DC 20427.
Federal Mediation and Conciliation Service, 29 U.S.C. 172,
This system is maintained for the purpose of processing access requests and administrative appeals under the FOIA (including system access records for requesters and staff), and access and amendment requests and appeals under the Privacy Act; corresponding with the Office of Information Policy (OIP) in the Department of Justice regarding federal agency compliance with the FOIA; and for the purpose of assisting FMCS in carrying out any other responsibilities under the FOIA and the Privacy Act.
Individuals filing requests for access to information under the FOIA and Privacy Act, maintaining an account through which to file FOIA requests and appeals, and FMCS staff assigned to help process, consider, and respond to such requests, including any appeals.
The system consists of records created or compiled in response to FOIA and Privacy Act requests and appeals, including: The original requests and administrative appeals; responses to such requests and administrative appeals; all related memoranda, correspondence, notes, other supporting documentation, and system access records for both requesters and FMCS staff (usernames and passwords). Information collected and maintained about individuals includes name, contact information, phone numbers, email addresses, and mailing addresses. Records may contain information about people named in them. This system also consists of records related to inquiries submitted to OIP regarding federal agency compliance with the FOIA, and all records related to the resolution of such inquiries.
Individuals about whom the record is maintained, and agency staff assigned to help process, review, or respond to the access request, including any appeal. Records pertaining to accessing the FOIA processing system will also be included in this records system.
(a) To a federal, state, or local agency or entity for the purpose of consulting with that agency or entity to enable FMCS to make a determination as to access to or correction of information; for the purpose of verifying the identity of an individual or the accuracy of information submitted by an individual who has requested access to or amendment of information.
(b) To a federal agency or entity that furnished the record or information for the purpose of permitting that agency or entity to make a decision as to access or correction of the record or information, or to a federal agency or entity for purposes of providing guidance or advice regarding the handling of particular requests.
(c) To a submitter or subject of a record or information in order to obtain assistance to FMCS in making a determination as to access or amendment.
(d) To the National Archives and Records Administration for the purpose of adjudicating an appeal from an FMCS denial or a request.
(e) To appropriate agencies for the purpose of resolving an inquiry regarding FMCS compliance with the FOIA.
(f) To the National Archives and Records Administration, Office of Government Information Services (OGIS), to the extent necessary to fulfill responsibilities under 5 U.S.C. 552(h) to review administrative policies, procedures, and compliance with the FOIA, and to facilitate OGIS' offering of mediation services to resolve disputes between persons making FOIA requests and administrative agencies.
(g) To contractors, experts, consultants, and others performing or working on a contract service agreement, or other assignments for the federal government, when necessary to accomplish an agency function related to this system of records.
(h) To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
(i) To any component of the Department of Justice for the purpose of representing FMCS, or its components, officers, employees, or members in pending or potential litigation to which the record is pertinent.
(j) In an appropriate proceeding before a court, grand jury, or administrative body, when FMC determines the records are relevant to the proceeding; or in an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
(k) To the news media and the public, unless it is determined that the release of specific information in the context of the particular case would constitute an unwarranted invasion of privacy.
(l) To such recipients and under such circumstances and procedures as are mandated by federal statute or regulation.
(m) To appropriate agencies, entities, and persons when (1) the Commission suspects or has confirmed that there has been a breach of the system of records, (2) the Commission has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Commission (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Commission's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
(n) To another Federal agency or Federal entity, when the Commission determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to Individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
Records are maintained electronically using a commercial software application run on the agency's internal servers and shared drives run on the agency's internal servers. Hardcopy records are maintained in a locked file cabinet that require two badged access points.
Indexed by name of requesting party and subject matter of request. Records can also be searched by name, address, phone number, fax number, and email of the requesting party, subject matter of the request, requestor organization, FOIA number, and staff members assigned to the request.
Records are retained and disposed of in accordance with General Records
Access to nonpublic system records is restricted to FMCS personnel or contractors whose responsibilities require access. Nonpublic paper records are temporary, maintained in lockable file cabinets or offices, and destroyed once the request and appeal process is complete. Access to electronic records is controlled by a “user ID” and password combination and other electronic access or network controls (
See 29 CFR 1410.3—Individual access requests. Requests can be submitted via the fmcs.gov website, via email to
See 29 CFR 1410.6 Appeals from denials of requests can be submitted via email to
See 29 CFR 1410.3(a),
None.
None.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice and request for comments.
In accordance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, and the Office of Management and Budget (OMB) regulations, DoD, GSA, and NASA invite the public to comment on a revision and renewal concerning payment by electronic fund transfer (other than System for Award Management). DoD, GSA, and NASA invite comments on: Whether the proposed collection of information is necessary for the proper performance of the functions of Federal Government acquisitions, including whether the information will have practical utility; the accuracy of the estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. OMB has approved this information collection for use through January 31, 2021. DoD, GSA, and NASA propose that OMB extend its approval for use for three additional years beyond the current expiration date.
DoD, GSA, and NASA will consider all comments received by December 28, 2020.
DoD, GSA, and NASA invite interested persons to submit comments on this collection through
Zenaida Delgado, Procurement Analyst, at telephone 202-969-7207, or
9000-0144, Payment by Electronic Fund Transfer-Other than System for Award Management.
This clearance covers the information that contractors must submit to comply with the following Federal Acquisition Regulation (FAR) requirement:
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(1) The contract number (or other procurement identification number).
(2) The Contractor's name and remittance address, as stated in the contract(s).
(3) The signature (manual or electronic, as appropriate), title, and telephone number of the Contractor official authorized to provide this information.
(4) The name, address, and 9-digit Routing Transit Number of the Contractor's financial agent.
(5) The Contractor's account number and the type of account (checking, saving, or lockbox).
(6) If applicable, the Fedwire Transfer System telegraphic abbreviation of the Contractor's financial agent.
(7) If applicable, the Contractor shall also provide the name, address, telegraphic abbreviation, and 9-digit Routing Transit Number of the correspondent financial institution receiving the wire transfer payment if the Contractor's financial agent is not directly on-line to the Fedwire Transfer System; and, therefore, not the receiver of the wire transfer payment.
The burden to provide the information required by the FAR clause
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of public meeting.
This notice announces a meeting of the National Advisory Council for Healthcare Research and Quality.
The meeting will be held on Tuesday, November 10, 2020, from 10:00 a.m. to 2:00 p.m.
The meeting will be held virtually.
Jaime Zimmerman, Designated Management Official, at the Agency for Healthcare Research and Quality, 5600 Fishers Lane, Mail Stop 06E37A, Rockville, Maryland 20857, (301) 427-1456. For press-related information, please contact Bruce Seeman at (301) 427-1998 or
Closed captioning will be provided during the meeting. If another reasonable accommodation for a disability is needed, please contact the Food and Drug Administration (FDA) Office of Equal Employment Opportunity and Diversity Management on (301) 827-4840, no later than Monday, October 26, 2020. The agenda, roster, and minutes will be available from Ms. Heather Phelps, Committee Management Officer, Agency for Healthcare Research and Quality, 5600 Fishers Lane, Rockville, Maryland, 20857. Ms. Phelps' phone number is (301) 427-1128.
In accordance with section 10(a) of the Federal Advisory Committee Act, 5 U.S.C. App., this notice announces a meeting of the National Advisory Council for Healthcare Research and Quality (the Council). The Council is authorized by Section 941 of the Public Health Service Act, 42 U.S.C. 299c. In accordance with its statutory mandate, the Council is to advise the Secretary of the Department of Health and Human Services and the Director of AHRQ on matters related to AHRQ's conduct of its mission including providing guidance on (A) priorities for health care research, (B) the field of health care research including training needs and information dissemination on health care quality and (C) the role of the Agency in light of private sector activity and opportunities for public private partnerships. The Council is composed of members of the public, appointed by the Secretary, and Federal ex-officio members specified in the authorizing legislation.
On Tuesday, November 10, 2020, the Council meeting will convene at 10:00 a.m., with the call to order by the Council Chair and approval of previous Council summary notes. The meeting will begin with an update on AHRQ's recent accomplishments in Research, Practice Improvements and Data and Analytics. The agenda will also include an AHRQ COVID-19 Update, a discussion on Quality Measurement Enterprise and feedback on the Strategic Plan for the PCOR Trust Fund. The meeting will adjourn at 2:00 p.m. The meeting is open to the public. For information regarding how to access the meeting as well as other meeting details, including information on how to make a public comment, please go to
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, and the Determination of the Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, CDC, pursuant to Public Law 92-463. 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.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
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, and the Determination of the Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, CDC, pursuant to Public Law 92-463. 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.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, the Agency, or we) is seeking requests for participation from members of the public, including owners of third-party human food safety standards, interested in participating in a voluntary pilot program to evaluate third-party food safety standards. On July 13, 2020, FDA announced the New Era of Smarter Food Safety Blueprint and the desire to explore the increased use of reliable third-party audits to help ensure safer food, including exploring the use of reliable audit data in risk-prioritization for FDA regulatory activities, for example, with respect to inspections of both imported and domestically produced foods. Under the pilot program, FDA will assess third-party food safety standards for alignment with certain FDA food safety regulations. Knowing that these third-party standards align with certain FDA food safety regulations would give those relying on audits conducted to those standards confidence that they are meeting certain FDA requirements for supplier verification audits. The pilot will enable FDA to gain information and experience that will allow the Agency to evaluate the resources and tools required to conduct alignment reviews.
The pilot will conclude October 26, 2021.
Submit written or electronic submissions for the pilot program to
Franciel Ikeji, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-4971.
Ensuring the safety of food for human and animal use is a shared responsibility between the public and private sectors. FDA has established regulatory standards, inspects facilities, and may take action if there are violations. But it is primarily the responsibility of industry to ensure that food products intended for human and animal consumption in the United States are safe and meet applicable food safety requirements. The FDA Food Safety Modernization Act (FSMA) (Pub. L. 111-353) modified the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 301,
FSMA and the implementing regulations place new obligations on certain entities in the food industry to verify that their suppliers are meeting FDA safety standards. More specifically, three regulations that FDA issued under FSMA have supplier verification requirements. Those regulations are the Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food (PCHF) regulation (part 117 (21 CFR part 117)); the Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals (PCAF) regulation (part 507 (21 CFR part 507)); and Foreign Supplier Verification Programs for Food Importers (FSVP) regulation (21 CFR part 1, subpart L). Subparts A, C, D, E, F, and G of part 117 in the PCHF regulation include requirements for domestic and foreign facilities that are required to register under section 415 of the FD&C Act (21 U.S.C. 350d) to conduct a hazard analysis and implement risk-based preventive controls for human food (the human food preventive controls requirements). Subpart G of part 117 requires the receiving facility to establish and implement a written supply-chain program (21 CFR 117.405(a) and (b)) and conduct appropriate supplier verification activities for those raw materials and other ingredients for which the receiving facility has identified a hazard requiring a supply-chain-applied control (21 CFR 117.425 and 117.415(a)(3)(iii)). Generally, when a hazard in a raw material or other ingredient will be controlled by the supplier and is one for which there is a reasonable probability that exposure to the hazard will result in serious adverse health consequences or death, the
For animal food facilities that are required to register, subparts A, C, D, E, and F of part 507 in PCAF include requirements to conduct a hazard analysis and implement risk-based preventive controls for animal food (the animal food preventive controls requirements). Subpart E of part 507 establishes requirements, similar to those in PCHF, for a supply-chain program for those raw materials and other ingredients for which a receiving facility has identified a hazard requiring a supply-chain-applied control.
Under the FSVP regulation, FSVP importers are required to develop, maintain, and follow a foreign supplier verification program that provides adequate assurances that imported food meets applicable U.S. food safety standards. The FSVP regulation requires importers to conduct a hazard analysis to determine whether there are any hazards that require a control (21 CFR 1.504) and, based on the hazard analysis, determine the appropriate type of verification activity as well as the frequency of conducting the activity. When a hazard in a food is controlled by the foreign supplier and is one for which there is a reasonable probability that exposure to the hazard will cause serious adverse health consequences or death to humans or animals, the default verification activity is to conduct an annual onsite audit before initially importing the food from the supplier and at least annually thereafter (§ 1.506(d)(2) (21 CFR 1.506(d)(2))).
In all three regulations, audits are not required if the receiving facility or importer has made a written determination that other verification activities and/or less frequent onsite auditing of the supplier provide adequate verification. See §§ 1.506(d)(2), 117.430(b)(2), and 507.130(b)(2).
The FSMA supply-chain programs do not require these annual onsite audits to be conducted by auditors accredited under FDA's Accredited Third-Party Certification Programs (21 CFR part 1, subpart M), which established a voluntary program for the accreditation of third-party certification bodies to conduct food safety audits and issue certifications for foreign facilities. The PCHF, PCAF, and FSVP regulations do, however, require the onsite audits under these regulations to be conducted by “qualified auditors. ” (A qualified auditor means a person who has the technical expertise obtained through education, training, or experience (or a combination thereof) necessary to perform the auditing function). See 21 CFR 1.500, 117.3, and 507.3. Importantly, too, the audits must consider applicable FDA regulations. See 21 CFR 1.506(e)(1)(i), 117.435, and 507.135.
FDA is aware that there are a variety of third-party food safety standards used by industry to assess a supplier's performance and that importers and receiving facilities may voluntarily rely on audits that use those private standards. Because the supply-chain verification provisions of PCHF, PCAF, and FSVP require that audits consider applicable FDA food safety regulations, importers and receiving facilities may seek assurances regarding how these standards align with FDA food safety standards. Having such assurances may provide importers and receiving facilities with confidence that they can use audits conducted under the standards to fulfill the PCHF, PCAF, and FSVP requirements for supplier verification. This pilot will assess whether some of these third-party food safety standards are aligned with food safety requirements in two specific FDA human food safety regulations: The PCHF regulation and the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption (Produce Safety) regulation (21 CFR part 112). The pilot will not assess alignment with FDA animal food safety regulations.
FDA has published templates that may be used to help receiving facilities, importers, and other stakeholders compare the third-party food safety standards used in an audit to the food safety requirements in applicable FDA regulations (FDA Audit Comparison Templates)
While these templates are useful, the pilot will allow us to assess how the third-party food safety standards used in audits align with human food safety requirements in the PCHF and the Produce Safety regulations. We expect that FDA alignment determinations would create efficiencies for industry, so that importers and receiving facilities know whether the third-party food safety standards used to audit their suppliers adequately consider food safety requirements in two of FDA's regulations. Similarly, we expect that it would be more efficient for FDA investigators to know if the standards against which a supplier was audited align with FDA regulations, so that the investigators can more efficiently determine whether importers and receiving facilities are in compliance with the FSMA supply-chain verification requirements for audits. The pilot will assist FDA in gathering information to determine whether these expectations are accurate.
The pilot will also evaluate the process for determining alignment, including the resources required for FDA to review and assess third-party standards for alignment with relevant FDA regulations. While the pilot will be focused on human food safety requirements in the PCHF and Produce Safety regulations, any program that FDA puts in place as a result of the Agency's experience with the pilot would likely also include a review of standards for food for animal consumption to assess and determine alignment of third-party animal food safety standards to the food safety requirements in the PCAF regulation.
We also note that the goals of this pilot align with the “FDA Strategy for the Safety of Imported Food,” which includes an objective that FDA take into account the public health assurances of reliable audits such as those issued under FDA's Accredited Third-Party Certification Program or pursuant to other assurance programs aligned with FDA food safety requirements. FDA recognizes that audits can provide valuable public health assurances if they are reliable and if the standards under which audits are conducted are aligned with relevant FDA food safety regulations. The goals of the program also align with the New Era of Smarter Food Safety Blueprint. As explained in the Blueprint, FDA is considering the benefits of using reliable audit information in resource allocation decision making and risk prioritization of regulatory activities such as import screening to ensure that food offered for import meets U.S. food safety requirements. Because this pilot is only focused on assessing third-party food safety standards, and not the overall quality of audit programs or the qualifications of auditors, we believe that the pilot will help evaluate the requirements for making alignment determinations as an important step in determining the reliability of third-party audits.
FDA is seeking requests for participation from members of the public, including owners of third-party human food safety standards, who are interested in participating in a voluntary pilot program to determine whether third-party food safety standards align with food safety requirements in the PCHF and the Produce Safety regulations. Upon being selected to participate in the program, participants will submit their standards for assessment. FDA plans to select and assess up to five private third-party human food safety standards for alignment with food safety requirements in the PCHF or the Produce Safety regulation. Participants in the pilot program will be asked to provide FDA with technical feedback on the pilot. The Agency will use its discretion in choosing participants for assessment based on (in no particular order):
(1) The order the requests for participation are received;
(2) the desired diversity of third-party human food safety standards for assessment in the pilot (
(3) the Agency's determination of available resources to conduct the assessment given the level of effort and other priorities.
FDA reserves the right to request additional information or clarification from participants in the pilot and to rescind participation if the additional information or clarification is not promptly and accurately provided.
The pilot will run for 1 year from the date of publication of this notice and will conclude on October 26, 2021. FDA reserves the right to extend the pilot for more time as needed. To assure we have adequate time to assess the standards during the pilot period, we are asking members of the public, including owners of third-party human food safety standards, to submit their request to participate in the pilot program by November 25, 2020.
Members of the public, including owners of third-party human food safety standards, that are interested in participating should submit a written request to participate to Franciel Ikeji (see
The request to participate should include the following information: Company and contact name; contact phone number; and contact email address. Additionally, although not required for consideration, FDA is particularly interested in whether you are the owner of a third-party food safety standard, and the type of food safety standard you have developed (
The pilot program will be conducted from October 26, 2020 to October 26, 2021 and may be extended as needed. Each person that submits a request to participate will be notified that FDA has received the request. This notification only acknowledges that FDA has received the request and does not guarantee that FDA will accept you for participation in the pilot. By the conclusion of the pilot, participants will be notified as to whether FDA determined the food safety standard to be in alignment or not in alignment with the relevant FDA regulation.
FDA will publish information on its website regarding the third-party standards that FDA determines to be in alignment with FDA regulations.
FDA intends to evaluate the pilot program on several factors, including, but not limited to, the resources required to review and assess third-party standards for alignment with relevant FDA regulations, the ability of pilot participants to provide adequate information to enable FDA to make a determination of alignment, and whether FDA Audit Comparison Templates are a helpful tool in making alignment determinations. After FDA evaluates the pilot program, the Agency will utilize the information to evaluate the resources and tools required to conduct alignment reviews.
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting.
Thursday, November 19, 2020: 11:30 a.m.-4:00 p.m. EST.
The Subcommittee on Standards will provide an update on follow up work from its hearing held in August 2020 to solicit information about the costs and benefits of a new operating rule for connectivity and two operating rules for the prior authorization transaction proposed by the Council for Affordable Quality Healthcare (CAQH), Committee on Operating Rules for Information Exchange (CORE). The Committee will also consider recommendations anticipated from the Office of the National Coordinator for Health Information Technology's (ONC) Health Information Technology Advisory Committee (HITAC), Task Force on Intersection of Clinical and Administrative Data (ICAD), on which four NCVHS members have participated. The Committee will consider next steps for a project to identify and recommend a path toward convergence of administrative and
The Subcommittee on Privacy, Confidentiality, and Security will provide an update on the September 14, 2020, hearing that focused on data collection and use during a public health emergency and identify next steps for development of guidelines for methods and approaches to collect, use, protect, and share data responsibly during a pandemic or long-term nationwide public health emergency.
Members will consider major themes for the NCVHS 14th Report to Congress, which is planned for release in the first half of 2021. Members will consider and discuss priorities for Committee focus and revise the Committee work plan based on the two days of meeting proceedings.
A public comment period will be offered on both days. Meeting times and topics are subject to change. Please refer to the agenda posted at the NCVHS website for any updates.
Should you require reasonable accommodation, please contact the CDC Office of Equal Employment Opportunity on (770) 488-3210 as soon as possible.
Notice is hereby given of a change in the meeting of the Special Emphasis Panel, December 3, 2020, 9:00 a.m. to 5:30 p.m. This notice was published in the
This notice is being amended to change the date and time to December 17, 2020 from 10:00 a.m. to 5:30 p.m. The meeting is closed to the public.
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.
National Institutes of Health, HHS.
Notice.
The National Institutes of Health (NIH) Sexual & Gender Minority Research Office (SGMRO) will be holding its second annual listening session with Sexual & Gender Minority (SGM)-focused organizations. The primary objective of the NIH's listening session is to hear from community stakeholders about what issues are on their minds regarding SGM-related research and related activities at NIH. The goal is to hold an annual listening session every year, to provide different SGM focused organizations an opportunity to speak.
The listening session with the SGM community will be held on November 19, 2020, at 1:00 p.m. ET.
The meeting will be held virtually as a WebEx Event, and it will be open to the public to listen. Information about the meeting and registration to attend are at this link:
Irene Avila, Ph.D., Assistant Director, Sexual & Gender Minority Research Office (SGMRO), 6555 Rock Spring Drive, Rm. 2SE31J, Bethesda, MD 20817,
“Sexual and gender minority” is an umbrella term that includes, but is not limited to, individuals who identify as lesbian, gay, bisexual, asexual, transgender, Two-Spirit, queer, and/or intersex. Individuals with same-sex or -gender attractions or behaviors and those with a difference in sex development are also included. These populations also encompass those who do not self-identify with one of these terms but whose sexual orientation, gender identity or expression, or reproductive development is characterized by non-binary constructs of sexual orientation, gender, and/or sex.
In accordance with Section 404N of the 21st Century Cures Act (Pub. L. 114-255), the Sexual and Gender Minority Research Office (SGMRO) coordinates sexual and gender minority (SGM)-related research and activities by working directly with NIH Institutes, Centers, and Offices. The Office was officially established in September 2015 within the NIH Division of Program Coordination, Planning, and Strategic Initiatives in the Office of the Director.
The SGMRO has the following operational goals: (1) Advance rigorous research on the health of SGM populations in both the extramural and intramural research communities; (2) expand SGM health research by fostering partnerships and collaborations with a strategic array of internal and external stakeholders; (3) foster a highly skilled and diverse workforce in SGM health research; and (4) encourage data collection related to SGM populations in research and the biomedical research workforce.
The listening session event will be an NIH-wide effort, with representation from the SGMRO and other NIH Institutes, Centers, and Offices. The listening session will be open to the public to listen in; comments submitted via email will be accepted post-listening session. The session will be recorded a posted on the SGMRO website approximately one month post-session. Comments, questions, or feedback can be shared with
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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the 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 materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH), Office of the Director, Office of Acquisitions and Logistics Management (OALM), Small Business Program Office (SBPO), has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Rachel Kenlaw, Program Analyst, NIH, Office of the Director, Office of Acquisitions and Logistics Management, Small Business Program Office, 6100 Executive Blvd., Suite 6E01G, Rockville, MD 20852, or call non-toll-free number (301) 451-6827 or Email your request, including your address, to:
This proposed information collection was previously published in the
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
PEI is a comprehensive program to increase the capacity of HBCUs as they pursue funding opportunities at NIH. The PEI provides a platform to increase transparency between HBCUs and NIH by promoting outreach events and training opportunities while providing technical assistance. Through this initiative the SBPO will assist HBCUs in identifying NIH contracts, grants, and other funding programs to increase their institutional biomedical research capacity. Currently, there are six HBCU participants and each selected a minimum of one small business teaming partner to pursue NIH funding opportunities with.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 186.
National Institutes of Health, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30 days of the date of this publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Ms. Keisha L. Shropshire, ODP Project Clearance Liaison, NIH Office of Disease Prevention, 6100 Executive Blvd., Room 2B03, Bethesda, MD 20892 or call (301) 827-5561 or email your request, including your address, to
This proposed information collection was previously published in the
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 417.
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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection 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 (PRA). The information collection is published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number 202-325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection 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 (PRA). The information collection is published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number 202-325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Mississippi (FEMA-3544-EM), dated September 14, 2020, and related determinations.
This amendment was issued September 30, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that the incident period for this emergency is closed effective September 17, 2020.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Florida (FEMA-4564-DR), dated September 23, 2020, and related determinations.
The declaration was issued September 23, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated September 23, 2020, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Florida resulting from Hurricane Sally beginning on September 14, 2020, continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance and assistance for emergency protective measures (Category B), including direct Federal assistance, under the Public
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance, Hazard Mitigation, and Other Needs Assistance under section 408 will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Jeffrey L. Coleman, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Florida have been designated as adversely affected by this major disaster:
Escambia County for Public Assistance, including direct Federal assistance.
Emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program for Bay, Calhoun, Franklin, Gadsden, Gulf, Holmes, Jackson, Liberty, Okaloosa, Santa Rosa, Walton, and Washington Counties.
All areas within the State of Florida are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Iowa (FEMA-4557-DR), dated August 17, 2020, and related determinations.
This amendment was issued October 5, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Iowa is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 17, 2020.
Clinton County for Individual Assistance (already designated for Public Assistance).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of Oregon (FEMA-3542-EM), dated September 10, 2020, and related determinations.
The declaration was issued September 10, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated September 10, 2020, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have determined that the emergency conditions in certain areas of the State of Oregon resulting from wildfires beginning on September 8, 2020, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
You are authorized to provide appropriate assistance for required emergency measures, authorized under title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program in the designated areas.
Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that
The following areas of the State of Oregon have been designated as adversely affected by this declared emergency:
Clackamas, Douglas, Jackson, Jefferson, Klamath, Lane, Lincoln, Linn, Marion, Tillamook, and Washington Counties for emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Oregon (FEMA-4562-DR), dated September 15, 2020, and related determinations.
This amendment was issued October 5, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Oregon is hereby amended to include debris removal for the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 15, 2020.
Clackamas, Douglas, Jackson, Klamath, Lane, Lincoln, Linn, and Marion Counties for debris removal [Category A] (already designated for Individual Assistance and assistance for emergency protective measures [Category B], including direct federal assistance, under the Public Assistance program).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of California (FEMA-4558-DR), dated August 22, 2020, and related determinations.
This amendment was issued September 28, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of California is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 22, 2020.
Santa Clara County for Individual Assistance.
Nevada and Santa Clara Counties for Public Assistance, including direct federal assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of California (FEMA-4558-DR), dated August 22, 2020, and related determinations.
This amendment was issued September 30, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice is hereby given that the incident period for this major disaster is closed effective September 26, 2020, with the exception
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
Each LOMR was finalized as in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before January 25, 2021.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2058, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Florida (FEMA-4564-DR), dated September 23, 2020, and related determinations.
This amendment was issued September 30, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Florida is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 23, 2020.
Santa Rosa County for debris removal [Category A] and permanent work [Categories C-G](already designated for emergency protective measures [Category B], including direct federal assistance, under the Public Assistance program.)
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Alabama (FEMA-4563-DR), dated September 20, 2020, and related determinations.
This amendment was issued September 25, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Alabama is hereby amended to include debris removal for the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the
Baldwin, Escambia, and Mobile Counties for debris removal [Category A] (already designated for Individual Assistance and assistance for emergency protective measures [Category B], including direct federal assistance, under the Public Assistance program).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The date of February 26, 2021 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of Louisiana (FEMA-3543-EM), dated September 14, 2020, and related determinations.
The declaration was issued September 14, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated September 14, 2020, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have determined that the emergency conditions in the State of Louisiana resulting from Hurricane Sally beginning on September 13, 2020, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
You are authorized to provide appropriate assistance for required emergency measures, authorized under title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide Public Assistance Category B emergency protective measures, including direct Federal assistance in selected areas and Public Assistance Category B emergency protective measures, limited to direct Federal assistance in the other designated areas.
Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, John E. Long, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the State of Louisiana have been designated as adversely affected by this declared emergency:
Emergency protective measures (Category B), including direct Federal assistance for Acadia, Ascension, Assumption, East Baton Rouge, East Feliciana, Evangeline, Iberia, Iberville, Jefferson, Lafayette, Lafourche, Livingston, Orleans, Plaquemines, Pointe Coupee, St. Bernard, St. Charles, St. Helena, St. James, St. John the Baptist, St. Landry, St. Martin, St. Mary, St. Tammany, Tangipahoa, Terrebonne, Vermilion, Washington, West Baton Rouge, and West Feliciana Parishes.
Emergency protective measures (Category B), limited to direct Federal assistance for Allen, Avoyelles, Beauregard, Bienville, Bossier, Caddo, Calcasieu, Caldwell, Cameron, Catahoula, Claiborne, Concordia, De Soto, East Carroll, Franklin, Grant, Jackson, Jefferson Davis, La Salle, Lincoln, Madison, Morehouse, Natchitoches, Ouachita, Rapides, Red River, Richland, Sabine, Tensas, Union, Vernon, Webster, West Carroll, and Winn Parishes.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of Mississippi (FEMA-3544-EM), dated September 14, 2020, and related determinations.
The declaration was issued September 14, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated September 14, 2020, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have determined that the emergency conditions in certain areas of the State of Mississippi resulting from Hurricane Sally beginning on September 14, 2020, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
You are authorized to provide appropriate assistance for required emergency measures, authorized under title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide assistance for emergency protective measures, (Category B), including direct Federal assistance, under the Public Assistance program.
Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, Brett H. Howard, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the State of Mississippi have been designated as adversely affected by this declared emergency:
Emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program for Adams, Amite, Covington, Forrest, Franklin, George, Greene, Hancock, Harrison, Jackson, Jefferson, Jefferson Davis, Jones, Lamar, Lawrence, Lincoln, Marion, Pearl River, Perry, Pike, Stone, Walthall, Wayne, and Wilkinson Counties.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of Florida (FEMA-3546-EM), dated September 15, 2020, and related determinations.
The declaration was issued September 15, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated September 15, 2020, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have determined that the emergency conditions in certain areas of the State of Florida resulting from Hurricane Sally beginning on September 14, 2020, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
Therefore, I declare that such an emergency exists in the State of Florida.
You are authorized to provide appropriate assistance for required emergency measures, authorized under title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide Public Assistance Category B emergency protective measures, including direct Federal assistance in selected areas and Public Assistance Category B emergency protective measures, limited to direct Federal assistance in the other designated areas.
Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, Jeffrey L. Coleman, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the State of Florida have been designated as adversely affected by this declared emergency:
Emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program for Bay, Escambia, Holmes, Okaloosa, Santa Rosa, Walton, and Washington Counties.
Emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program for Calhoun, Franklin, Gadsden, Gulf, Jackson, and Liberty Counties.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Alabama (FEMA-4563-DR), dated September 20, 2020, and related determinations.
The declaration was issued September 20, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated September 20, 2020, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in the State of Alabama resulting from Hurricane Sally beginning on September 14, 2020, continuing, is of sufficient severity and
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance and emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program in the designated areas; Hazard Mitigation throughout the State; and any other forms of assistance under the Stafford Act that you deem appropriate subject to completion of Preliminary Damage Assessments (PDAs).
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance, Hazard Mitigation, and Other Needs Assistance under section 408 will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Allan Jarvis, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Alabama have been designated as adversely affected by this major disaster:
Baldwin, Escambia, and Mobile Counties for Individual Assistance.
Emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program for Baldwin, Escambia, and Mobile Counties and the Poarch Band of Creek Indians.
All areas within the State of Alabama are eligible for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Florida (FEMA-4564-DR), dated September 23, 2020, and related determinations.
This amendment was issued October 2, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Florida is hereby amended to include the Individual Assistance program for the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 23, 2020.
Bay, Okaloosa, and Walton Counties for Individual Assistance (already designated for emergency protective measures [Category B], including direct federal assistance, under the Public Assistance program.)
Escambia and Santa Rosa Counties for Individual Assistance (already designated for Public Assistance, including direct Federal assistance.)
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Louisiana (FEMA-4559-DR), dated August 28, 2020, and related determinations.
This amendment was issued October 5, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Louisiana is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 28, 2020.
Grant, Jackson, Lincoln, Ouachita, Rapides, and Winn Parishes for permanent work [Categories C-G] (already designated for Individual Assistance and debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Louisiana (FEMA-3543-EM), dated September 14, 2020, and related determinations.
This amendment was issued September 30, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that the incident period for this emergency is closed effective September 16, 2020.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of Alabama (FEMA-3545-EM), dated September 14, 2020, and related determinations.
The declaration was issued September 14, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated September 14, 2020, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have determined that the emergency conditions in the State of Alabama resulting from Hurricane Sally beginning on September 14, 2020, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
You are authorized to provide appropriate assistance for required emergency measures, authorized under title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide Public Assistance Category B emergency protective measures, including direct Federal assistance in selected areas and Public Assistance Category B emergency protective measures, limited to direct Federal assistance in the other designated areas.
Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, Allan Jarvis, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the State of Alabama have been designated as adversely affected by this declared emergency:
Emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program for Autauga, Baldwin, Barbour, Bibb, Blount, Bullock, Butler, Calhoun, Chambers, Cherokee, Chilton, Choctaw, Clarke, Clay, Cleburne, Coffee, Conecuh, Coosa, Covington, Crenshaw, Dale, Dallas, Elmore, Escambia, Etowah, Geneva, Greene, Hale, Henry, Houston, Jefferson, Lee, Lowndes, Macon, Marengo, Mobile, Monroe, Montgomery, Perry, Pickens, Pike, Randolph, Russell, Shelby, St. Clair, Sumter, Talladega, Tallapoosa, Tuscaloosa, Washington, and Wilcox Counties and the Poarch Band of Creek Indians.
Emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program for Colbert, Cullman, DeKalb, Fayette, Franklin, Jackson, Lamar, Lauderdale, Lawrence, Limestone, Madison, Marion, Marshall, Morgan, Walker, and Winston Counties.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of New York (FEMA-4567-DR), dated October 2, 2020, and related determinations.
This change occurred on October 2, 2020.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Lai Sun Yee, of FEMA is appointed to act as the Federal Coordinating Officer for this disaster.
This action terminates the appointment of Seamus K. Leary as Federal Coordinating Officer for this disaster.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD).
Notice of Federal Advisory Committee Meetings: Manufactured Housing Consensus Committee (MHCC).
This notice sets forth the schedule and proposed agendas for two teleconference meetings of the MHCC: Structure and Design Subcommittee, and Regulatory Enforcement Subcommittee. The meetings are open to the public. The agenda for each meeting provides an opportunity for citizens to comment on the business before the MHCC Subcommittees.
• The Structure and Design Subcommittee meeting will be held on November 12, 2020, 10:00 a.m. to 4:00 p.m. Eastern Standard Time (EST).
• The Regulatory Enforcement Subcommittee meeting will be held on November 19, 2020, 10:00 a.m. to 4:00 p.m. Eastern Standard Time (EST).
The teleconference number for all teleconferences is: 301-715-8592 or 646-558-8656 and the Meeting ID is: 96243433408. To access the webinar, use the following link:
Teresa B. Payne, Administrator, Office of Manufactured Housing Programs, Department of Housing and Urban Development, 451 7th Street SW, Room 9166, Washington, DC 20410, telephone 202-402-2698 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).
Notice of these meetings are provided in accordance with the Federal Advisory Committee Act, 5 U.S.C. App. 10(a)(2) through implementing regulations at 41 CFR 102-3.150. The MHCC was established by the National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. 5403(a)(3), as amended by the Manufactured Housing Improvement Act of 2000, (Pub. L. 106-569, Sec. 601,
• Provide periodic recommendations to the Secretary to adopt, revise, and interpret the Federal manufactured housing construction and safety standards in accordance with this subsection;
• Provide periodic recommendations to the Secretary to adopt, revise, and interpret the procedural and enforcement regulations, including regulations specifying the permissible scope and conduct of monitoring in accordance with subsection (b); and
• Be organized and carry out its business in a manner that guarantees a fair opportunity for the expression and consideration of various positions and for public participation.
The MHCC is deemed an advisory committee not composed of Federal employees.
• For the November 12, 2020 Structure and Design Subcommittee teleconference, the written comments must be provided no later than November 4, 2020.
• For the November 19, 2020 Regulatory Enforcement Subcommittee teleconference, the written comments must be provided no later than November 11, 2020.
Please note, written comments submitted will not be read during the meeting but will be provided to the Subcommittee members prior to the meeting. The MHCC will also provide an opportunity for oral public comments on specific matters before the Subcommittees at each meeting. The total amount of time for oral comments will be 30 minutes, in two 15-minute periods, with each commenter limited to two minutes to ensure pertinent Subcommittee business is completed and all public comments can be expressed. The Subcommittee will not respond to individual written or oral statements; however, it will take all public comments into account in its deliberations. The MHCC strives to accommodate citizen comments to the extent possible within the time constraints of the meeting agenda.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, received an application from Puget Western, Incorporated, for an incidental take permit pursuant to the Endangered Species Act. The application includes a habitat conservation plan (HCP), which describes the actions the applicant will take to minimize and mitigate the impacts of the taking of the threatened Olympia subspecies of the Mazama pocket gopher that may occur incidental to the otherwise lawful commercial development of applicant-owned land in the City of Tumwater, Thurston County, Washington. We also announce the availability of a draft environmental assessment addressing the HCP and proposed permit. We invite comments from all interested parties.
To ensure consideration, please submit written comments by November 25, 2020.
To request further information or submit written comments, please use one of the following methods, and note that your information request or comments are in reference to “Tumwater Distribution Center HCP”:
Tim Romanski, Conservation Planning and Hydropower Branch Manager, Washington Fish and Wildlife Office (see
We, the U.S. Fish and Wildlife Service (Service), received an application from Puget Western, Incorporated, including its wholly owned subsidiaries Tumwater West Conservation Site LLC, Tumwater East I-5 Distribution Center LLC, and Tumwater East I-5 Commercial LLC (applicant) for an incidental take permit (ITP) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
Section 9 of the ESA prohibits “take” of fish and wildlife species listed as endangered or threatened. Under the ESA, the term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532(19)). The term “harm,” as defined in our regulations, includes significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering (50 CFR 17.3). The term “harass” is defined in our regulations as to carry out actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering (50 CFR 17.3).
Section 10(a)(1)(B) of the ESA contains provisions that authorize the
In this case, the applicant is requesting an ITP with a 20-year term that would authorize take of the Olympia pocket gopher incidental to otherwise lawful construction of commercial warehouse(s) and associated infrastructure improvements for stormwater and transportation safety. The application includes an HCP that describes the actions the applicant will take to minimize and mitigate the impacts of the taking on the covered species.
The applicant is proposing development activities and conservation site measures on approximately 151.2 acres of land. Development activities include construction of a warehouse distribution and commercial center and associated infrastructure improvements for stormwater and transportation safety. The area covered under the applicant's HCP consists of a project development site totaling 83.7 acres located southwest of the intersection of 93rd Ave. SW and Kimmie St. SW in the City of Tumwater, Thurston County, Washington. Portions of the approximately 79-acre project site and the 4.7 acres of adjacent roads are suitable for and/or occupied by the Olympia pocket gopher. Take of the Olympia pocket gopher would occur on approximately 22 acres of occupied habitat. Impacts to suitable habitat may result in additional impacts to Olympia pocket gopher if that habitat becomes occupied before construction. The applicant's HCP will provide offsetting mitigation for impacts to the Olympia pocket gopher at the 67.5-acre Tumwater West property. The Service proposes to issue the requested 20-year permit based on the applicant's commitment to implement the HCP, if permit issuance criteria are met.
The proposed issuance of a permit is a Federal action that triggers the need for compliance with the National Environmental Policy Act of 1969, as amended (NEPA; 42 U.S.C. 4321
Alternatives analyzed in the EA include a no-action alternative and the proposed alternative. Under the no-action alternative, the proposed Federal action of issuing the permit would not proceed. Because there is no way to avoid all impacts to the listed species at the project site, the commercial development would not be constructed under the no-action alternative. The proposed alternative is implementation of the HCP and issuance of the requested 20-year permit, as described above.
You may submit your comments and materials by one of the methods listed in the
All comments and materials we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personally identifiable information in your comments, you should be aware that your entire comment—including your personally identifiable information—may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifiable information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
After public review and completion of the EA, we will determine whether the proposed action warrants a finding of no significant impact or whether an environmental impact statement should be prepared. We will evaluate the permit application, associated documents, and any comments received, to determine whether the permit application meets the requirements of section 10(a)(1)(B) of the ESA. We will also evaluate whether issuance of the requested section 10(a)(1)(B) permit would comply with section 7 of the ESA by conducting an intra-Service section 7 consultation under section 7(a)(2) of the ESA on anticipated ITP actions. The final NEPA and permit determinations will not be completed until after the end of the 30-day comment period and will fully consider all comments received during the comment period. If we determine that all requirements are met, we will issue an incidental take permit under section 10(a)(1)(B) of the ESA to the applicant for the take of the covered species, incidental to otherwise lawful covered activities.
We provide this notice in accordance with the requirements of section 10 of the ESA (16 U.S.C. 1531
Office of Justice Programs, Department of Justice.
30-Day notice of information collection under review.
The Department of Justice (DOJ), Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (OJJDP) will be submitting
Comments are encouraged and will be accepted for 30 days until November 25, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
This process is conducted in accordance with 5 CFR 1320.10. 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:
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Following standard Office of Management and Budget (OMB) requirements, OJJDP will submit an individual request to OMB for every group of data collection activities undertaken under this generic clearance. OJJDP will provide OMB with a copy of the individual instruments or questionnaires (if one is used), as well as other materials describing the project. Currently, OJJDP anticipates the need to conduct testing and development work that will include the collection of information from law enforcement agencies, child welfare agencies, courts, probation supervision offices, and the state agencies, local governments, non-profit organizations, and for-profit organizations that operate juvenile residential placement facilities.
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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.
Office of Justice Programs, Department of Justice.
30 Day notice.
The Department of Justice, Office of Justice Programs, Bureau of Justice Assistance is submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
The Department of Justice encourages public comment and will accept input until November 25, 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 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:
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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.
In accordance with the Section 223 (19 U.S.C. 2273) of the Trade Act of 1974 (19 U.S.C. 2271,
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for TAA, the group eligibility requirements under Section 222(a) of the Act (19 U.S.C. 2272(a)) must be met, as follows:
(1) The first criterion (set forth in Section 222(a)(1) of the Act, 19 U.S.C. 2272(a)(1)) is that a significant number or proportion of the workers in such workers' firm (or “such firm”) have become totally or partially separated, or are threatened to become totally or partially separated; AND (2(A) or 2(B) below)
(2) The second criterion (set forth in Section 222(a)(2) of the Act, 19 U.S.C. 2272(a)(2)) may be satisfied by either (A) the Increased Imports Path, or (B) the Shift in Production or Services to a Foreign Country Path/Acquisition of Articles or Services from a Foreign Country Path, as follows:
(i) the sales or production, or both, of such firm, have decreased absolutely;
AND (ii and iii below)
(ii) (I) imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased; OR
(II)(aa) imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased; OR
(II)(bb) imports of articles like or directly competitive with articles which are produced directly using the services supplied by such firm, have increased; OR
(III) imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased; AND
(iii) the increase in imports described in clause (ii) contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; OR
(i) (I) there has been a shift by such workers' firm to a foreign country in the production of articles or the supply of services like or directly competitive with articles which are produced or services which are supplied by such firm; OR
(II) such workers' firm has acquired from a foreign country articles or services that are like or directly competitive with articles which are produced or services which are supplied by such firm; AND
(ii) the shift described in clause (i)(I) or the acquisition of articles or services described in clause (i)(II) contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for TAA, the group eligibility requirements of Section 222(b) of the Act (19 U.S.C. 2272(b)) must be met, as follows:
(1) a significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated; AND
(2) the workers' firm is a supplier or downstream producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act (19 U.S.C. 2272(a)), and such supply or production is related to the article or service that was the basis for such certification (as defined in subsection 222(c)(3) and (4) of the Act (19 U.S.C. 2272(c)(3) and (4));
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; OR
(B) a loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation determined under paragraph (1).
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for TAA, the group eligibility requirements of Section 222(e) of the Act (19 U.S.C. 2272(e)) must be met, by following criteria (1), (2), and (3) as follows:
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) an affirmative determination of serious injury or threat thereof under section 202(b)(1) of the Act (19 U.S.C. 2252(b)(1)); OR
(B) an affirmative determination of market disruption or threat thereof under section 421(b)(1) of the Act (19 U.S.C. 2436(b)(1)); OR
(C) an affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A)); AND
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) a summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) of the Trade Act (19 U.S.C. 2252(f)(1)) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) notice of an affirmative determination described in subparagraph (B) or (C) of paragraph (1) is published in the
(3) the workers have become totally or partially separated from the workers' firm within—
(A) the 1-year period described in paragraph (2); OR
(B) notwithstanding section 223(b) of the Act (19 U.S.C. 2273(b)), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (Increased Imports Path) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (Shift in Production or Services to a Foreign Country Path or Acquisition of Articles or Services from a Foreign Country Path) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(e) (firms identified by the International Trade Commission) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for TAA have not been met for the reasons specified.
The investigation revealed that the requirements of Trade Act section 222 (a)(1) and (b)(1) (significant worker total/partial separation or threat of total/partial separation), or (e) (firms identified by the International Trade Commission), have not been met.
The investigation revealed that the criteria under paragraphs (a)(2)(A)(i) (decline in sales or production, or both), or (a)(2)(B) (shift in production or services to a foreign country or acquisition of articles or services from a foreign country), (b)(2) (supplier to a firm whose workers are certified eligible to apply for TAA or downstream producer to a firm whose workers are certified eligible to apply for TAA), and (e) (International Trade Commission) of section 222 have not been met.
The investigation revealed that the criteria under paragraphs(a)(2)(A) (increased imports), (a)(2)(B) (shift in production or services to a foreign country or acquisition of articles or services from a foreign country), (b)(2) (supplier to a firm whose workers are certified eligible to apply for TAA or downstream producer to a firm whose workers are certified eligible to apply for TAA), and (e) (International Trade Commission) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the worker group on whose behalf the petition was filed is covered under an existing certification.
I hereby certify that the aforementioned determinations were issued during the period of
Petitions have been filed with the Secretary of Labor under
Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Administrator of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing provided such request is filed in writing with the Administrator, Office of Trade Adjustment Assistance, at the address shown below, no later than November 5, 2020.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Administrator, Office of Trade Adjustment Assistance, at the address shown below, not later than November 5, 2020.
The petitions filed in this case are available for inspection at the Office of the Administrator, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW, Washington, DC 20210.
Notice.
The Department of Labor's (DOL) Employment and Training Administration (ETA) is soliciting comments concerning a proposed extension for the authority to conduct the information collection request (ICR) titled, “ETA 581 Contribution Operations.” The ETA 581 provides information on volume of work and state agency performance in determining the taxable status of employers and the processing of wage items; in the collection of past due contributions and payments in lieu of contributions, and delinquent reports; and in field audit activity. The data provide measures of the effectiveness of the tax program. This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA).
Consideration will be given to all written comments received by December 28, 2020.
A copy of this ICR with applicable supporting documentation, including a description of the likely respondents, proposed frequency of response, and estimated total burden, may be obtained free by contacting Rachel Beistel by telephone at 202-693-2736] (this is not a toll-free number), TTY 1-877-889-5627 (this is not a toll-free number), or by email at
Submit written comments about, or requests for a copy of, this ICR by mail or courier to the U.S. Department of Labor, Employment and Training Administration, Office of Unemployment Insurance, 200 Constitution Avenue NW, Room S-4519, Washington, DC 20210; by email:
Contact Rachel Beistel by telephone at 202-693-2736 (this is not a toll-free number) or by email at
DOL, as part of continuing efforts to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies an opportunity to
44 U.S.C. 3506(c)(2)(A) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6.
Interested parties are encouraged to provide comments to the contact shown in the
Submitted comments will also be a matter of public record for this ICR and posted on the internet, without redaction. DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/information in any comments.
DOL is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• 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, (
44 U.S.C. 3506(c)(2)(A).
In accordance with Sections 223 and 284 (19 U.S.C. 2273 and 2395) of the Trade Act of 1974 (19 U.S.C. 2271,
The following Applications for Reconsideration have been received and granted. See 29 CFR 90.18(d). The group of workers or other persons showing an interest in the proceedings may provide written submissions to show why the determination under reconsideration should or should not be modified. The submissions must be sent no later than ten days after publication in
The following revised certifications of eligibility to apply for TAA have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination, and the reason(s) for the determination.
The following revisions have been issued.
I hereby certify that the aforementioned determinations were issued during the period of September 1, 2020 through September 30, 2020. These determinations are available on the Department's website
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Occupational Safety and Health Administration (OSHA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before November 25, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Crystal Rennie by telephone at 202-693-0456, or by email at
OSHA's Office of Training and Educational Programs is designed to recognize and promote excellence in safety and health training. The OSHA Training Institute's (OTI) Education Centers offer courses for the private sector and other federal agency personnel at locations throughout the United States. OSHA extends its training reach to workers through its various Outreach Training Programs. Through the Outreach Training Programs, qualified individuals complete an OSHA trainer course and become authorized to teach student courses. The collection of information requirements contained in these programs are necessary to evaluate the applicant organization and to implement, oversee, and monitor the OTI Education Centers and Outreach Training Programs, courses and trainers. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
44 U.S.C. 3507(a)(1)(D).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Chief Evaluation Office (CEO)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before November 25, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this
Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Crystal Rennie by telephone at 202-693-0456, or by email at
The Chief Evaluation Office of the U.S. Department of Labor commissioned the high priority Apprenticeship Evidence-Building Portfolio evaluation contract to build the evidence on apprenticeship, including apprenticeship models, practices, and partnership strategies in high-growth occupations and industries. DOL's initiatives to expand access to apprenticeship opportunities support the Presidential Executive Order “Expanding Apprenticeships in America.” The portfolio of initiatives includes the Scaling Apprenticeship Through Sector-Based Strategies grants, Closing the Skills Gap grants, Veterans Employment and Training Services Apprenticeship pilot, and other DOL investments. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
National Archives and Records Administration (NARA).
Notice.
We have submitted a request to the Office of Management and Budget (OMB) for approval to continue to collect information through a voluntary survey of visitors to the National Archives Museum and building in Washington, DC. In order to measure whether the National Archives Museum is successfully achieving its goals, as well as to determine if we need to make any modifications, we conduct a survey of those who have visited the Museum, using the American Association of State and Local History (AASLH) customer survey. This is a 12-minute questionnaire given to a random sample of those exiting this location in downtown Washington, DC. We invite you to comment on this proposed information collection pursuant to the Paperwork Reduction Act of 1995.
OMB must receive comments in writing on or before November 25, 2020.
Send any comments and recommendations on the proposed information collection in writing to
Tamee Fechhelm, Paperwork Reduction Act Officer, by email at
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), we invite the public and other Federal agencies to comment on proposed information collections. We published a notice of proposed collection for this information collection on August 7, 2020 (85 FR 47989) and we received no comments. We are therefore submitting the described information collection to OMB for approval.
If you have comments or suggestions, they should address one or more of the following points: (a) Whether the proposed information collection is necessary for NARA to properly perform its functions; (b) our estimate of the burden of the proposed information collection and its accuracy; (c) ways we could enhance the quality, utility, and clarity of the information we collect; (d) ways we could minimize the burden on respondents of collecting the information, including through information technology; and (e) whether this collection affects small businesses.
In this notice, we solicit comments concerning the following information collection:
Due to the COVID-19 Pandemic, the meeting will be open to the public via live webcast only. Visit the agency's homepage (
Parts of this meeting will be open to the public. The rest of the meeting will be closed to the public.
1. NCUA Rules and Regulations, Role of Supervisory Guidance.
1. Personnel Matter. Closed pursuant to Exemptions (2), and (6).
2. Personnel Matter. Closed pursuant to Exemptions (2), and (6).
Gerard Poliquin, Secretary of the Board, Telephone: 703-518-6304.
Weeks of October 26, November 2, 9, 16, 23, 30, 2020.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public.
There are no meetings scheduled for the week of November 9, 2020.
There are no meetings scheduled for the week of November 23, 2020.
For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or by email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Reopening of comment period.
On June 19, 2020, the U.S. Nuclear Regulatory Commission (NRC) solicited comments on the post-shutdown decommissioning activities report (PSDAR) for the Duane Arnold Energy Center (DAEC). The PSDAR, which includes the site-specific decommissioning cost estimate (DCE), provides an overview of NextEra Energy Duane Arnold, LLC's (NEDA or the licensee) planned decommissioning activities, schedule, projected costs, and environmental impacts for DAEC. The public comment period closed on October 19, 2020. The NRC has decided to reopen the public comment period to allow more time for members of the public to develop and submit their comments. The NRC will hold a public meeting to discuss the PSDAR's content and receive comments once restrictions associated with the Coronavirus Disease 2019 public health emergency are lifted.
The comment period for the document published on June 19, 2020 (85 FR 37116) has been reopened. Comments should be filed no later than February 19, 2021. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject); however, the NRC
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Scott P. Wall, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001, telephone: 301-415-2855; email:
Please refer to Docket ID NRC-2020-0148 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal Rulemaking Website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
On June 19, 2020, the NRC solicited comments on the PSDAR dated April 2, 2020, including the site-specific DCE for DAEC (ADAMS Accession No. ML20094F603). The purpose of the original
For the Nuclear Regulatory Commission.
On August 24, 2020, Nasdaq PHLX LLC filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, pursuant to
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fees Schedule to (1) remove Market-Maker floor volume from the Marketing Fees assessment; (2) adopt a new fee code for Market-Maker volume executed on the floor; (3) remove Market-Maker floor volume eligibility for credits under certain programs; (4) amend the Clearing Trading Permit Holder Fee Cap; (5) reinstate certain facility fees currently waived in light of the COVID-19 pandemic; (6) add options on the S&P 500 ESG Index (“SPESG”) to the same Customer Large Trade Discount assessed for options on the S&P 500 Index (“SPX”); and (7) amend the application of the Strategy Fees Cap to certain products, effective October 1, 2020.
The Exchange first notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. More specifically, the Exchange is only one of 16 options venues to which market participants may direct their order flow. Based on publicly available information, no single options exchange has more than 16% of the market share.
The Exchange first proposes to amend its Marketing Fee program. By way of background the Marketing Fee is assessed on transactions of Market-Makers, resulting from customer orders at the per contract rate provided above on all classes of equity options, options on ETFs, options on ETNs and index options.
The proposed rule change amends the Marketing Fees table by adding transactions in open outcry to the list of Market-Maker transactions to which the Marketing Fee does not apply. As such, transactions in open outcry will not be assessed, thus will not contribute to the pool nor be included in the one month look back of pro-rata contributions in determining the allocation of undisbursed marketing fees. The Exchange has recently observed that collecting on and distributing funds for Market-Maker transactions in open outcry resulting from customer orders has not served as a significant incentive in attracting customer order flow to the trading floor as designed. Therefore, the proposed rule change removes this assessment for such transactions on the trading floor, which, in turn will also assist the Exchange in redirecting resources and funding into other programs intended to incentivize customer order flow providers. The Exchange also notes that the proposed amendment to the Marketing Fee program is also in line with how other exchanges with trading floors apply their respective marketing fee programs.
The Exchange proposes to adopt a new fee code for Market-Maker orders transacted on the trading floor (
The Exchange proposes to remove Market-Maker volume transacted in open outcry from eligibility for credits pursuant to the Liquidity Provider Sliding Scale and the Affiliated Volume Plan (“AVP”). Currently, the Liquidity Provider Sliding Scale offers credits on Market-Maker orders where a Market-Maker achieves certain volume thresholds based on total national Market-Maker volume in all underlying symbols
The Clearing Trading Permit Holder Fee Cap table and accompanying footnote 22 provides that, for all non-facilitation business executed in AIM or open outcry, or as a QCC or FLEX transaction, transaction fees for Clearing Trading Permit Holder Proprietary and/or their Non-Trading Permit Holder Affiliates (collectively, “Firms”) in all products except Sector Indexes and products in Underlying Symbol List A, in the aggregate, are capped at $75,000 per month per Clearing Trading Permit Holder. The proposed rule change amends the cap from $75,000 to $55,000. The proposed reduction in the fee cap amount is intended to incentivize Firms to submit increased order flow to the Exchange thus encouraging a healthy and diverse ecosystem as the Exchange has observed lower Firm volume across the industry in recently months than observed historically. Additionally, the Exchange notes that the proposed cap change is competitive with similar firm caps in place on other options exchanges.
Current footnote 24 provides for modified and waived fees for certain trading floor-related transaction fees and fees related to trading floor facilities while the trading floor operates in a modified state. Specifically, it provides that, among other things, monthly fees will be waived for the following facilities fees: Standard and non-standard booth rentals, wireless phone rental, arbitrage phone positions and satellite TV, provided however that such fees will be pro-rated based on the remaining trading days in the calendar month if the trading floor becomes fully operational mid-month. If a TPH is unable to utilize designated facility services while the trading floor is operating in a modified state, corresponding fees, including for
While the Exchange's trading floor continues to operate in a modified state due to the ongoing COVID-19 pandemic, on September 21, 2020, the Exchange further expanded its trading floor capacity. As a result, Trading Permit Holders have been able to again occupy booths and utilize the wireless phone rentals. The Exchange notes also that as a result of the recent expansion all wireless phone rental will be in use, however, not all booths will be occupied. Therefore, the proposed rule change updates footnote 24 to reinstate fees for such facilities and provides that, beginning October 1, 2020, facilities fees for standard and non-standard booth rentals and wireless phone rental will be reinstated. The proposed rule change makes clear too that if a TPH is unable to utilize designated facility services while the trading floor is operating in a modified state, corresponding fees, including for standard and non-standard booth rentals will not be assessed.
On September 21, 2020, the Exchange submitted a fee filing to introduce fees for the newly listed and traded SPESG on the Exchange.
By way of background, last month, the Exchange submitted a proposal that amended footnote 13 and updated the strategy cap from applying to strategies executed on the same trading day in the same option class for options on equities, ETFs and ETN to applying to strategies executed in open outcry on the same trading day in the same option class across all symbols.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
As stated above, the Exchange operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. Many of the proposed fee changes reflect a competitive pricing structure designed to incentivize market participants to direct their order flow to the Exchange's trading floor, which the Exchange believes would enhance market quality to the benefit of all TPHs. Particularly, the Exchange believes that its proposed amendment to the application of certain programs and assessments of Market-Maker volume executed in open outcry and the proposed $55,000 Clearing Trading Permit Holder Fee Cap are consistent with Section 6(b)(4) of the Act in that the proposed rule changes are reasonable, equitable and not unfairly discriminatory. As noted above, the Exchange operates in highly competitive market. The Exchange is only one of several options venues to which market participants may direct their order flow, and it represents a small percentage of the overall market. The Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory in that competing options exchanges, and the Exchange itself, offer fees and credits in connection with Market-Maker transactions in open outcry
The Exchange believes that the proposed rule change to amend the Marketing Fees table by adding transactions in open outcry to the list of Market-Maker transactions to which the Marketing Fee does not apply is reasonable because the current assessment of such orders has not resulted in significant incentive in attracting customer order flow to the trading floor as designed. Therefore, the proposed rule change is reasonable in that it removes this assessment for such transactions, which will allow the Exchange to redirect such resources and funding into other programs intended to incentivize customer order flow providers. Impactful incentive programs for customer order flow providers would, in turn, encourage an increase in customer order flow, which attracts Market-Makers. A subsequent increase in Market-Maker activity tends to signal an increase in activity from other market participants, contributing to overall deeper, more liquid markets and a robust market ecosystem to the benefit of all market participants. The Exchange believes the proposed rule change is equitable and not unfairly discriminatory because the proposed rule change will apply equally to all Market-Maker volume in open outcry, in that, no such volume will be assessed, or otherwise a part of, the Marketing Fee program. Also, as described above, the proposed rule change is reasonable, equitable and not unfairly discriminatory as the Marketing Fee program, as proposed, is also in line with how other exchanges with trading floors apply their respective marketing fee programs.
The Exchange believes that the proposed rule change to adopt a fee code and assess a standard rate for Market-Maker manual orders is reasonable in that it is reasonably designed to balance the assessment of fees on such orders in light of the removal of the assessment of Marketing Fees on such orders as proposed. The Exchange believes that the proposed rule change is equitable and not unfairly discriminatory because the proposed fee will apply automatically and uniformly to all Market-Maker orders transacted in open outcry (
The proposed rule change to remove Market-Maker volume transacted in open outcry from eligibility for credits pursuant to the Liquidity Provider Sliding Scale and the AVP is reasonable because it is also reasonably designed to balance against the increased benefit to Market-Makers as a result of not assessing Marketing Fees for Market-Maker volume in open outcry, which, the Exchange believes that even with the proposed standard fee applied, may result in reduced overall transaction fees for Market-Makers executing volume on the trading floor. The Exchange also believes that it is reasonable to continue to include Market-Maker open outcry volume in the volume thresholds for meeting the Liquidity Provider Sliding Scale tiers because, as stated above, it is designed to continue to incentivize Market-Maker order flow to the trading floor and would assist the Exchange in continuing to provide a robust hybrid market. Particularly, Market-Maker volume in open outcry facilitates tighter spreads on the Exchange and signals additional corresponding increase in order flow from other market participants. Increased overall order flow benefits all investors by deepening the Exchange's liquidity pool, potentially providing even greater execution incentives and opportunities, offering additional flexibility for all investors to enjoy cost savings, supporting the quality of price discovery, promoting market transparency and improving investor protection. The Exchange notes, too, that other programs in the Fees Schedule include certain volume in meeting volume thresholds while not including the same volume as eligible for credits or reduced rates under such programs.
The Exchange believes that the proposed reduction in the Clearing Trading Permit Holder Fee Cap amount is reasonably designed to incentivize Firms to increase their order flow submitted to the Exchange in order to meet, and trade beyond, the reduced cap, particularly given the recent observation of Firm volume decline across the industry. As stated above, increases in order flow contributes to deeper, more liquid markets and an increase in overall trading activity. The Exchange further believes that Clearing Trading Permit Holder participation in the markets is essential to a robust market ecosystem as Clearing Trading Permit Holders facilitate the execution of customer orders as well as provide clearing services. The Exchange believes that the proposed fee cap is equitable and reasonable as it will continue to apply uniformly to all Clearing Permit Holders that submit qualifying volume to meet the cap. Additionally, the Exchange notes that the proposed cap change is competitive with similar firm caps in place on other options exchanges.
The Exchange believes that reinstating the facility fees for the use of booths (as occupied) and wireless phones is reasonable as the Exchange has recently expanded its trading floor capacity, though continues to operate in a modified state, and therefore these facilities are once again being used by Trading Permit Holders. The Exchange believes the proposed rule change is also reasonable, equitable and not unfairly discriminatory as it applies equally to all floor TPHs use such services.
The proposed rule change to add SPESG to the same existing transaction fees that apply to SPX under the Customer Large Trade Discount is reasonable as it is intended to correct an inadvertent omission of such via a recent proposal which amended the
The Exchange believes that the proposed rule change to re-apply the strategy fee cap to open outcry executions in equity, ETF and ETN options is reasonable because it corrects the Fees Schedule to reflect the original intention of the recent proposal that updated the strategy caps and footnote 13,
The Exchange does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed change regarding Market-Maker volume in open outcry will apply uniformly to all such volume. That is, all Market-Makers that transact orders on the trading floor will not be assessed the Marketing Fee on such orders, such orders will uniformly not be eligible for credits under the Liquidity Provider Sliding Scale or AVP, and such orders will automatically and uniformly yield fee code MB and be assessed the standard rebate for MB. Likewise, the Clearing Trading Permit Holder Fee Cap will continue to apply uniformly, as it does today, to all Firms that submit qualifying orders to reach the cap. The proposed rule change merely reduces the cap as an incentive for Clearing Trading Permit Holders to submit additional liquidity to the Exchange, which would benefit all market participants. The Exchange notes that the remaining proposed rule changes do not alter any of the current fees in place. The proposed rule change to reinstate certain facilities fees will apply equally to all floor Trading Permit Holders utilizing such facility services, the proposed rule change to the Customer Large Trade Discount table will apply equally to all customer orders in SPESG, exactly as it does today for such orders in SPX, and the proposed rule change to re-apply the strategy cap to strategies executed in certain products will apply uniformly to all market-makers, Clearing Trading Permit Holders, JBO participants, broker-dealers and non-Trading Permit Holders that execute strategies in open outcry across all symbols in equity, ETF and ETN options.
The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because, as noted above, competing options exchanges, and the Exchange, currently have substantially similar fees in place in connection with Market-Maker orders executed in open outcry and firm fee caps. The Exchange notes it operates in a highly competitive market. In addition to Cboe Options, TPHs have numerous alternative venues that they may participate on and director their order flow, including 15 other options exchanges, as well as off-exchange venues, where competitive products are available for trading. Based on publicly available information, no single options exchange has more than 18% of the market share of executed volume of options trades.
The Exchange does not believe that the proposed rule change in connection with the waiver of certain designated facility service fees will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed changes only
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe EDGX Exchange, Inc. (“EDGX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposed rule change to extend the current pilot program related to EDGX Rule 11.15, Clearly Erroneous Executions, to the close of business on April 20, 2021. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to extend the effectiveness of the Exchange's current rule applicable to Clearly Erroneous Executions to the close of business on April 20, 2021. Portions of Rule 11.15, explained in further detail below, are currently operating as a pilot program set to expire on October 20, 2020.
On September 10, 2010, the Commission approved, on a pilot basis, changes to EDGX Rule 11.15 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the
On December 26, 2018, the Commission published the proposed Eighteenth Amendment
The Exchange now proposes to amend EDGX Rule 11.15 to extend the pilot's effectiveness to the close of business on April 20, 2021. The Exchange understands that the other national securities exchanges and Financial Industry Regulatory Authority (“FINRA”) will also file similar proposals to extend their respective clearly erroneous execution pilot programs, the substance of which are identical to EDGX Rule 11.15.
The Exchange does not propose any additional changes to EDGX Rule 11.15. The Exchange believes the benefits to market participants from the more objective clearly erroneous executions rule should continue on a limited six month pilot basis. As the Plan was approved by the Commission to operate on a permanent, rather than pilot, basis the Exchange intends to assess whether additional changes should also be made to the operation of the clearly erroneous execution rules. Extending the effectiveness of EDGX Rule 11.15 for an additional six months should provide the Exchange and other national securities exchanges additional time to consider further amendments, if any, to the clearly erroneous execution rules.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that extending the clearly erroneous execution pilot under EDGX Rule 11.15 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and the other national securities exchanges consider and develop a permanent proposal for clearly erroneous execution reviews.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange understands that FINRA and other national securities exchanges will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No comments were solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe BZX Exchange, Inc. (“BZX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposed rule change to extend the current pilot program related to BZX Rule 11.17, Clearly Erroneous Executions, to the close of business on April 20, 2021. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of
The purpose of this filing is to extend the effectiveness of the Exchange's current rule applicable to Clearly Erroneous Executions to the close of business on April 20, 2021. Portions of Rule 11.17, explained in further detail below, are currently operating as a pilot program set to expire on October 20, 2020.
On September 10, 2010, the Commission approved, on a pilot basis, changes to BZX Rule 11.17 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
On December 26, 2018, the Commission published the proposed Eighteenth Amendment
The Exchange now proposes to amend BZX Rule 11.17 to extend the pilot's effectiveness to the close of business on April 20, 2021. The Exchange understands that the other national securities exchanges and Financial Industry Regulatory Authority (“FINRA”) will also file similar proposals to extend their respective clearly erroneous execution pilot programs, the substance of which are identical to BZX Rule 11.17.
The Exchange does not propose any additional changes to BZX Rule 11.17. The Exchange believes the benefits to market participants from the more objective clearly erroneous executions rule should continue on a limited six month pilot basis. As the Plan was approved by the Commission to operate on a permanent, rather than pilot, basis the Exchange intends to assess whether additional changes should also be made to the operation of the clearly erroneous execution rules. Extending the effectiveness of BZX Rule 11.17 for an additional six months should provide the Exchange and other national securities exchanges additional time to consider further amendments, if any, to the clearly erroneous execution rules.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that extending the clearly erroneous execution pilot under BZX Rule 11.17 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and the other national securities exchanges consider and develop a permanent proposal for clearly erroneous execution reviews.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange understands that FINRA and other national securities exchanges will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No comments were solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 18(a)(2), 18(c) and 18(i) of the Act, under sections 6(c) and 23(c) of the Act for an exemption from rule 23c-3 under the Act, and for an order pursuant to section 17(d) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit certain registered closed-end management investment companies to issue multiple classes of shares and to impose early withdrawal charges and asset-based distribution fees and/or service fees with respect to certain classes.
Primark Private Equity Investments Fund (the “Initial Fund”) and Primark Advisors LLC (the “Adviser” and together with the Initial Fund, the “Applicants”).
The application was filed on July 6, 2020, and amended on September 14, 2020 and October 6, 2020.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by emailing the Commission's Secretary at
The Commission:
Marc Mehrespand, Senior Counsel; Trace Rakestraw, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
1. The Initial Fund is a Delaware statutory trust that is registered under the Act as a closed-end management investment company and operated as an interval fund pursuant to rule 23c-3 under the Act. The investment objective of the Initial Fund is to generate long-term capital appreciation. The Initial Fund pursues its investment objective primarily by investing in private equity investments.
2. The Adviser is a Delaware limited liability company and is an investment adviser registered with the Commission under the Investment Advisers Act of 1940. The Adviser serves as investment adviser to the Initial Fund.
3. Applicants seek an order to permit the Funds (as defined below) to issue multiple classes of shares, each having its own fee and expense structure and to impose early withdrawal charges (“EWCs”) and asset-based distribution and/or service fees with respect to certain classes.
4. Applicants request that the order also apply to any continuously-offered registered closed-end management investment company that has been previously organized or that may be organized in the future for which the Adviser or any entity controlling, controlled by, or under common control with the Adviser, or any successor in interest to any such entity,
5. The Initial Fund is currently offering its common shares of beneficial interest (“Initial Class Shares”) on a continuous basis. Applicants state that additional offerings by any Fund relying on the order may be on a private placement or public offering basis. Shares of the Funds will not be listed on any securities exchange, nor quoted on any quotation medium, and the Funds do not expect there to be a secondary trading market for their shares.
6. If the requested relief is granted, the Initial Fund intends to continuously offer at least one additional class of shares (“New Class Shares”). Each of the Initial Class Shares and the New Class Shares will have its own fee and expense structure. Because of the different distribution and/or service fees, services, and any other class expenses that may be attributable to each class of shares, the net income attributable to, and the dividends payable on, each class of shares may differ from each other.
7. Applicants state that, from time to time, the Funds may create additional classes of shares, the terms of which may differ from their other share classes in the following respects: (i) The amount of fees permitted by different distribution plans and/or different service fee arrangements; (ii) voting rights with respect to a distribution and/or service plan of a class; (iii) different class designations; (iv) the impact of any class expenses directly attributable to a particular class of shares allocated on a class basis as described in the application; (v) any differences in dividends and net asset value resulting from differences in fees under a distribution plan and/or service fee arrangement or in class expenses; (vi) any EWC or other sales load structure; and (vii) exchange or conversion privileges of the classes as permitted under the Act.
8. Applicants state that the Initial Fund has adopted a fundamental policy to repurchase a specified percentage of its shares (no less than 5% and no more than 25%) at net asset value on a periodic basis. Such repurchase offers will be conducted pursuant to rule 23c-3 under the Act. Each of the other Funds will likewise adopt fundamental investment policies and make periodic repurchase offers to its shareholders in compliance with rule 23c-3 or will provide periodic liquidity with respect to its shares pursuant to rule 13e-4 under the Exchange Act.
9. Applicants represent that any asset-based service and/or distribution fees for each class of shares of the Funds will comply with the provisions of FINRA Rule 2341 (formerly NASD rule 2380(d)) (the “FINRA Sales Charge Rule”).
10. Each Fund will comply with any requirements that the Commission or FINRA may adopt regarding disclosure at the point of sale and in transaction confirmations about the costs and conflicts of interest arising out of the distribution of open-end investment company shares, and regarding prospectus disclosure of sales loads and revenue sharing arrangements, as if those requirements applied to each Fund. In addition, each Fund will contractually require that any distributor of the Fund's shares comply with such requirements in connection with the distribution of such Fund's shares.
11. Each Fund will allocate all expenses incurred by it among the various classes of shares based on the net assets of that Fund attributable to each such class, except that the net asset value and expenses of each class will reflect the expenses associated with the distribution and/or service plan of that class (if any), service fees attributable to that class (if any), including transfer agency fees, and any other incremental expenses of that class. Expenses of a Fund allocated to a particular class of shares will be borne on a pro rata basis by each outstanding share of that class. Applicants state that each Fund will comply with the provisions of rule 18f-3 under the Act as if it were an open-end investment company.
12. Applicants state that each Fund may impose an EWC on shares submitted for repurchase that have been held less than a specified period and may grant waivers of the EWCs on repurchases in connection with certain categories of shareholders or transactions established from time to time. Applicants state that each Fund will apply the EWC (and any waivers, scheduled variations or eliminations of the EWC) uniformly to all shareholders in a given class and consistently with the requirements of rule 22d-1 under the Act as if the Funds were open-end investment companies.
13. Each Fund that operates or will operate as an interval fund pursuant to rule 23c-3 under the Act may offer its shareholders an exchange feature under which the shareholders of the Fund may, in connection with such Fund's periodic repurchase offers, exchange their shares of the Fund for shares of the same class of (i) registered open-end investment companies or (ii) other registered closed-end investment companies that comply with rule 23c-3 under the Act and continuously offer their shares at net asset value, that are in the Fund's group of investment companies (collectively, the “Other Funds”). Shares of a Fund operating pursuant to rule 23c-3 that are exchanged for shares of Other Funds will be included as part of the amount of the repurchase offer amount for such Fund as specified in rule 23c-3 under the Act. Any exchange option will comply with rule 11a-3 under the Act, as if the Fund were an open-end investment company subject to rule 11a-3. In complying with rule 11a-3, each Fund will treat an EWC as if it were a contingent deferred sales load (“CDSL”).
1. Section 18(a)(2) of the Act provides that a closed-end investment company may not issue or sell a senior security that is a stock unless certain requirements are met. Applicants acknowledge that the creation of multiple classes of shares of the Funds may violate section 18(a)(2) because the Funds may not meet such requirements with respect to a class of shares that may be a senior security.
2. Section 18(c) of the Act provides, in relevant part, that a closed-end investment company may not issue or sell any senior security if, immediately thereafter, the company has outstanding more than one class of senior security. Applicants acknowledge that the creation of multiple classes of shares of the Funds may be prohibited by section 18(c), as a class may have priority over another class as to payment of dividends because shareholders of different classes would pay different fees and expenses.
3. Section 18(i) of the Act provides that each share of stock issued by a registered management investment company will be a voting stock and have equal voting rights with every other outstanding voting stock. Applicants acknowledge that multiple classes of shares of the Funds may violate section 18(i) of the Act because each class would be entitled to exclusive voting rights with respect to matters solely related to that class.
4. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction or any class or classes of persons, securities or transactions from any provision of the Act, or from any rule or regulation under the Act, if and to the extent such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants request an exemption under section 6(c) from sections 18(a)(2), 18(c) and 18(i) to permit the Funds to issue multiple classes of shares.
5. Applicants submit that the proposed allocation of expenses relating to distribution and/or services and voting rights is equitable and will not discriminate against any group or class of shareholders. Applicants submit that the proposed arrangements would permit a Fund to facilitate the distribution of its securities and provide investors with a broader choice of shareholder services. Applicants assert that the proposed closed-end investment company multiple class structure does not raise concerns underlying section 18 of the Act to any greater degree than open-end investment companies' multiple class structures. Applicants state that each Fund will comply with the provisions of rule 18f-3 as if it were an open-end investment company.
1. Section 23(c) of the Act provides, in relevant part, that no registered closed-end investment company shall purchase securities of which it is the issuer, except: (a) On a securities exchange or other open market; (b) pursuant to tenders, after reasonable opportunity to submit tenders given to all holders of securities of the class to be purchased; or (c) under other circumstances as the Commission may permit by rules and regulations or orders for the protection of investors.
2. Rule 23c-3 under the Act permits a registered closed-end investment company (an “interval fund”) to make repurchase offers of between five and twenty-five percent of its outstanding shares at net asset value at periodic intervals pursuant to a fundamental policy of the interval fund. Rule 23c-3(b)(1) under the Act permits an interval fund to deduct from repurchase proceeds only a repurchase fee, not to exceed two percent of the proceeds, that is paid to the interval fund and is reasonably intended to compensate the
3. Section 23(c)(3) provides that the Commission may issue an order that would permit a closed-end investment company to repurchase its shares in circumstances in which the repurchase is made in a manner or on a basis that does not unfairly discriminate against any holders of the class or classes of securities to be purchased. Applicants state that the Initial Fund currently charges, and Future Funds may charge, a repurchase fee at a rate of no greater than 2 percent of the aggregate net asset value of a shareholder's shares repurchased by the Fund (an “Early Repurchase Fee”) if the interval between the date of purchase of the shares and the valuation date with respect to the repurchase of those shares is less than one year. Applicants represent that any Early Repurchase Fee imposed by a Fund will apply equally to all New Class Shares and to all classes of shares of such Fund, consistent with section 18 of the Act and rule 18f-3 thereunder.
4. Applicants request relief under section 6(c), discussed above, and section 23(c)(3) from rule 23c-3 to the extent necessary for the Funds to impose EWCs on shares of the Funds submitted for repurchase that have been held for less than a specified period.
5. Applicants state that the EWCs they intend to impose are functionally similar to CDSLs imposed by open-end investment companies under rule 6c-10 under the Act. Rule 6c-10 permits open-end investment companies to impose CDSLs, subject to certain conditions. Applicants note that rule 6c-10 is grounded in policy considerations supporting the employment of CDSLs where there are adequate safeguards for the investor, and state that the same policy considerations support imposition of EWCs in the interval fund context. In addition, applicants state that EWCs may be necessary for the distributor to recover distribution costs. Applicants represent that any EWC imposed by the Funds will comply with rule 6c-10 under the Act as if the rule were applicable to closed-end funds. Applicants further represent that each Fund will disclose EWCs in accordance with the requirements of Form N-1A concerning CDSLs as if the Fund were an open-end investment company.
1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit an affiliated person of a registered investment company, or an affiliated person of such person, acting as principal, from participating in or effecting any transaction in connection with any joint enterprise or joint arrangement in which the investment company participates unless the Commission issues an order permitting the transaction. In reviewing applications submitted under section 17(d) and rule 17d-1, the Commission considers whether the participation of the investment company in a joint enterprise or joint arrangement is consistent with the provisions, policies and purposes of the Act, and the extent to which the participation is on a basis different from or less advantageous than that of other participants.
2. Rule 17d-3 under the Act provides an exemption from section 17(d) and rule 17d-1 to permit open-end investment companies to enter into distribution arrangements pursuant to rule 12b-1 under the Act. Applicants request an order under section 17(d) and rule 17d-1 under the Act to the extent necessary to permit the Funds to impose asset-based distribution and/or service fees. Applicants represent that the Funds will comply with rules 12b-1 and 17d-3 as if those rules applied to closed-end investment companies.
3. For the reasons stated above, applicants submit that the exemptions requested are necessary and appropriate in the public interest and are consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants further submit that the relief requested pursuant to section 23(c)(3) will be consistent with the protection of investors and will insure that applicants do not unfairly discriminate against any holders of the class of securities to be purchased. Finally, applicants state that the Funds' imposition of asset-based distribution and/or service fees is consistent with the provisions, policies and purposes of the Act and does not involve participation on a basis different from or less advantageous than that of other participants.
Applicants agree that any order granting the requested relief will be subject to the following condition:
Each Fund relying on the order will comply with the provisions of rules 6c-10, 12b-1, 17d-3, 18f-3, 22d-1, and, where applicable, 11a-3 under the Act, as amended from time to time or replaced, as if those rules applied to closed-end management investment companies, and will comply with the FINRA Sales Charge Rule, as amended from time to time, as if that rule applied to all closed-end management investment companies.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend the Code of Arbitration Procedure for Customer Disputes (“Customer Code”) and the Code of Arbitration Procedure for Industry Disputes (“Industry Code”) (together, “Codes”) to increase arbitrator chairperson (“Chair”) honoraria. Specifically, the proposed rule change would: (1) Increase the additional hearing-day honorarium Chairs receive for each hearing on the merits from $125 to $250 and (2) create a new $125 Chair honorarium for each prehearing conference in which the Chair participates. Under the proposed rule change, these increases would be funded primarily by minimal increases to the member surcharge and process fees for claims of more than $250,000 or claims for non-monetary or unspecified damages. The proposed rule change would also increase filing fees and hearing session fees for customers, associated persons and members bringing claims of more than $500,000
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA makes arbitrator honoraria payments to its arbitrators for the services arbitrators provide to FINRA's dispute resolution forum. Currently, under FINRA Rule 12214(a), arbitrators receive $300 for each hearing session in which the arbitrator participates.
In addition, several hearing locations lack a sufficient number of local Chairs. Chairs are often the most experienced arbitrators on FINRA's roster and must meet additional requirements to serve as Chair. To qualify as a Chair, an arbitrator must complete Chair training and have served on at least three arbitrations through award in which hearings were held, or be a lawyer who served on at least one arbitration through award in which hearings were held.
Chair-eligible arbitrators have indicated that they are not interested in completing the required Chair training and serving on the Chair roster because of the extra work required compared to the modest, additional Chair honorarium currently offered. To provide more of an incentive for eligible arbitrators to become Chairs and to more adequately compensate Chairs for their additional work, FINRA is proposing to increase the current per-day Chair honorarium for hearings on the merits and establish a Chair honorarium for prehearing conferences.
FINRA also recently increased the honorarium to Chairs who rule on motions or subpoenas without a hearing.
In all, on average the fees for an arbitration case would increase by $252, or 2.65 percent. FINRA believes that the cost of arbitration should be borne by the users of the forum, without imposing a significant barrier to public customers who bring arbitration claims to the forum. Thus, the fees are designed to be borne 85 percent by member firms and 15 percent by claimants.
The proposed rule change would amend FINRA Rules 12214 and 13214 to increase the arbitrator Chair honoraria. Specifically, the proposed rule change would increase the hearing-day honorarium from $125 to $250 to better compensate the Chair for the additional training and responsibilities required of the position.
FINRA recognizes that the proposed increase in the Chair honorarium for hearings and the new prehearing honorarium may not meet market rates.
To fund increases in the arbitrator Chair honoraria, FINRA is proposing to increase the member surcharge, member process fees, filing fees, and hearing session fees that the forum assesses the parties during the course of an arbitration case. FINRA believes the proposed fee increases would generate sufficient revenue to offset the proposed increases in the arbitrator Chair honoraria without placing an undue burden on users of the forum, particularly customers and claimants with small claims.
The Codes provide that a surcharge will be assessed against each member that: (1) Files a claim, counterclaim, cross claim, or third party claim under the Codes; (2) is named as a respondent in a claim, counterclaim, cross claim, or third party claim filed and served under the Codes; or (3) employed, at the time the dispute arose, an associated person who is named as a respondent in a claim, counterclaim, cross claim, or third party claim filed and served under the Codes.
FINRA is proposing to amend FINRA Rules 12901 and 13901 to increase the member surcharge for claims of more than $250,000 and claims for non-monetary or unspecified damages.
Table 1 illustrates the proposed dollar and percentage changes for each tier.
The member surcharge would remain non-allocable under the proposed rule change and, therefore, would not result in any additional costs to other parties to the arbitration, including customer claimants.
Under the Codes, if a customer, associated person, member, or other non-member files a claim, counterclaim, cross claim or third party claim, they must pay a filing fee to initiate an arbitration.
FINRA is proposing to amend FINRA Rules 12900 and 13900 to increase the filing fees for customers, associated persons, other non-members, or members bringing claims of more than $500,000 and claims for non-monetary or unspecified damages.
To minimize the impact of the proposed rule change on customers or claimants with small claims, the proposed rule change would amend FINRA Rule 12900(a) to increase the filing fees for claims of more than $500,000 and claims for non-monetary or unspecified damages.
The proposed rule change would also amend FINRA Rules 12900(b) and 13900(b) to increase the filing fees that members pay for claims of more than $500,000 and claims for non-monetary or unspecified damages. The filing fee for claims of more than $500,000 would increase by $100 to $200, and for non-monetary claims, by $100.
The Codes provide that each member that is a party to an arbitration or employed an associated person who is a party to an arbitration in which the claim amount is more than $25,000 must pay a process fee based on the amount of the claim.
The proposed rule change would amend FINRA Rules 12903 and 13903 to increase the member process fees for claim amounts larger than $250,000 and for claims for non-monetary or unspecified damages. Table 4 illustrates the proposed dollar and percentage changes.
The member process fees would remain non-allocable under the proposed rule change and, therefore, would not result in any additional costs to other parties to the arbitration, including customer claimants.
FINRA assesses hearing session fees against the parties for each hearing and pre-hearing session conducted by a panel.
As the panel can allocate hearing session fees to customer claimants, the proposed rule change would amend FINRA Rules 12902 and 13902 to increase the fees for claims of more than $500,000 and for claims for non-monetary or unspecified damages, and would be small, ranging from $25 to $75. There are different hearing session fees for hearings with one arbitrator versus hearings with three arbitrators. Under the proposed rule change, the fees would not change for hearings with one arbitrator, so that the forum remains accessible and affordable to customer claimants with small claims. Table 5 illustrates the proposed dollar and percentage changes.
The effects of the proposed hearing session fee increases may be minimized under the Codes. For example, if the parties settle the arbitration before any hearings are held, the parties will not be assessed hearing fees.
The following two examples help illustrate how the proposed fee increases would affect a typical arbitration. FINRA notes that the fees associated with an arbitration claim depend on multiple factors including: The claim amount, the number of arbitrators, the number of hearing sessions conducted, how the arbitrators decide to assess the fees among the parties, and whether the case is settled or withdrawn.
For a claim between $100,000.01 and $500,000, the customer would pay a filing fee of $1,425 to initiate the claim.
For a claim between $1,000,000.01 and $5,000,000, the customer would pay $2,025, an increase of $25 from $2,000, to initiate the claim.
The proposed rule change would amend FINRA Rules 12901 and 13901 to make the formatting more consistent in the fee schedules. In addition, the proposed rule change would amend FINRA Rule 12900(c)(3) to change the cross-reference in the rule from Rule 12202(c) to Rule 12202.
If the Commission approves the proposed rule change, FINRA will announce the effective date of the
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA believes the proposed increase to the hearing-day Chair honorarium and the addition of a Chair honorarium for prehearing conferences will provide more of an incentive for eligible arbitrators to become Chairs and more adequately compensate Chairs for their additional work. These changes, in turn, will help FINRA attract both new and experienced arbitrators to become Chairs, increasing the number of arbitrators on the Chair roster as well as the quality and depth of the roster, which is necessary for protecting investors and the public interest.
In addition, the proposed fee increases to the member surcharge, member process fees, filing fees, and hearing session fees will enable FINRA to cover the proposed changes to arbitrator Chair honoraria while helping to ensure that FINRA's arbitration forum remains accessible and affordable to parties, particularly customers and claimants with small claims.
FINRA believes the proposed rule change appropriately allocates the proposed fee increases among users of the forum by spreading the increases among high claim amounts and continuing to ensure that the costs of the forum are borne 85 percent by members and 15 percent by customers. In particular, the proposed Chair honoraria changes will be funded primarily by the minimal increases to the surcharge and process fees assessed to member firms for claims of more than $250,000. In addition, the filing and hearing session fee increases, which impact customer claimants, will apply only to claims of more than $500,000, and will be small. For example, the filing fee increases will range from $15 to $50. The hearing session fee increases will range from $25 to $75. Thus, FINRA believes the proposed rule change provides for the equitable allocation of reasonable fees for users of the arbitration forum, and protects investors and the public interest by keeping the forum accessible and affordable for customers.
FINRA has undertaken an economic impact assessment, as set forth below, to analyze the regulatory need for the proposed change, its potential economic impacts, including anticipated costs, benefits, and competitive effects, relative to the current baseline, and the alternatives FINRA considered in assessing how best to meet FINRA's regulatory objectives.
The proposed amendments are intended to address the issue of a lack of local public Chairs on the roster. As stated earlier, several FINRA hearing locations lack a sufficient number of local public Chairs. Hearing sites without a sufficient number of local Chairs draw from non-local arbitrators. Arbitration parties have reported that they prefer local arbitrators to preside over their cases. Appointing Chairs who live outside of the local hearing location may also result in scheduling delays of hearings and prehearing conferences. Further, non-local arbitrators who serve on a case incur additional expenses related to air, rail, and local ground transportation and hotels, which are then reimbursed by FINRA.
The economic baseline for the proposed amendments is the current rules under the Codes that address the Chair honoraria and forum fees that parties to an arbitration incur. The economic baseline also includes the roster of local public Chairs in each hearing location.
Currently, Chairs receive an additional $125 per day for each hearing on the merits (no additional compensation if cases are closed by settlement or other means prior to the first hearing on the merits). Chairs do not receive an additional honorarium when attending prehearing conferences. Anecdotal evidence suggests that the current Chair honorarium is not commensurate with the additional work required of Chairs in the arbitration process.
FINRA collects information detailing the number of open cases and public Chairs per hearing location. As of April 30, 2020, across the 69 domestic hearing locations, there were 4,788 open cases.
Hearing locations with fewer than 20 local public Chairs pose a particular concern for the forum. FINRA's arbitrator appointment process uses the Neutral List Selection System (“NLSS”), a computer algorithm, to randomly generate lists of arbitrators from FINRA's arbitrator roster. NLSS generates a random list of 10 arbitrators from the public Chair roster. Each party in the case receives the list, and each separately-represented party may strike up to four names.
In the sample, 51 out of 69 hearing locations had fewer than 20 local public Chairs. Among the 43 most active hearing locations (those with 20 or more open cases), 25 locations had fewer than 20 local public Chairs. The majority of these locations are midsize cities, for example, Birmingham (Alabama) with seven local public Chairs and 31 open cases, and Columbia (South Carolina) with three local public Chairs and 72 open cases.
FINRA also collects information on the use of non-local public Chairs based on closed arbitration cases. During 2019, 3,556 arbitration cases were closed in which public Chairs were appointed to the arbitration panels. Of these 3,556 cases, 2,162 (60 percent) of them were customer cases. Forty percent of these arbitration cases and 48 percent of the customer cases had non-local public Chairs appointed on the arbitration panels.
In the 25 active hearing locations with fewer than 20 local public Chairs, 1,296 arbitration cases were closed during 2019 in which public Chairs were appointed to the arbitration panels. Of these 1,296 cases, 980 (76 percent) of them were customer cases. Seventy-nine percent of these arbitration cases and 83 percent of the customer cases had non-local public Chairs appointed on the arbitration panels.
The proposed amendments are expected to affect the parties to an arbitration such as customers, member firms, and associated persons. The proposed rule change is also expected to affect FINRA arbitrators and its dispute resolution forum. The proposed amendments would increase the honoraria that a Chair receives, increasing the incentives of arbitrators to become Chairs or serve as Chairs. The proposed rule change would likely increase the pool of arbitrators available to serve as Chairs, thereby increasing the probability that more local public Chairs would be proposed for selection. FINRA believes that the proposed rule change could help retain experienced arbitrators who currently serve as Chairs and increase the total number of arbitrators on the Chair roster.
In order to estimate potential increases in Chair honoraria following the proposed rule change, FINRA analyzes 3,993 arbitration cases in total that were closed during 2019.
The primary benefits of the proposed rule change would be the reduction in travel costs for non-local Chairs as well as the increased satisfaction of the parties in the case from having a local Chair due to the local Chair's knowledge of local laws and customs. In addition, arbitration parties may benefit from fewer scheduling delays of hearings and prehearing conferences following the proposed amendments.
The increase in the number of arbitrators willing to serve in the role of a Chair depends on the sensitivity of arbitrator incentives to honoraria changes. The impact on the Chair roster may be higher for the hearing sites of small and midsize cities than for the hearing sites of large cities for two reasons. First, the increase in the incentive of arbitrators may be more pronounced in small and midsize cities because the cost of living is relatively lower in these locations. Second, adding even a few arbitrators to the Chair roster for small and midsize cities would likely have a greater impact than for larger cities because Chair rosters in these cities tend to be smaller.
The proposed amendments may not fill the gap of local public Chair rosters in the immediate term or in all locations, as some hearing locations may lack a sufficient number of Chair-eligible public arbitrators. In order to be eligible for the Chair roster, FINRA requires an arbitrator to have a minimum amount of arbitration experience.
The direct costs of the proposed rule change would arise from the increase in forum fees that parties to an arbitration would incur. Among the 3,993 cases closed in 2019, 1,773 cases (44 percent of all cases) with claims of equal to or less than $250,000 would not be subject to any increases in forum fees following the proposed rule change. The remaining 2,220 cases (56 percent of all cases) would be subject to increases in forum fees: 1,662 cases (42 percent of all cases) with non-monetary/non-specified claims or claims of greater than $500,000 would be subject to higher filing fees, member surcharges and process fees, and hearing session fees; 558 cases (14 percent of all cases) with claims of larger than $250,000 but smaller than or equal to $500,000 would be subject to higher member surcharges and process fees.
Subject to the proposed rule change, the total forum fees associated with the 3,993 cases closed in 2019 would have increased by $1,006,365 (a 2.65 percent increase relative to the existing fee level).
Currently, the arbitration fee structure distributes much of the costs of the forum to member firms that are party to an arbitration proceeding and to parties associated with large claims or non-monetary/unspecified claims. The proposed rule change would retain this approach. FINRA believes its current and proposed fee structures are designed to keep its arbitration program accessible and affordable to parties, especially customers and claimants with small claims.
Under the proposed rule change, all members involved in an arbitration would be subject to the same new fee schedule. FINRA recognizes that increases in forum fees due to the proposed rule change could have a bigger impact on small firms where claims are larger or non-monetary/unspecified as they may be more resource-constrained compared with large members.
FINRA recognizes that under the proposed rule change, there is likely to be a transfer of wealth from those that pay the higher fees to those that benefit from the proposed rule change if those parties are different. The proposed fee schedule would allocate the majority of the costs in customer cases to those with larger claim amounts or those with non-monetary/unspecified claims, although customers in cases with small claims could still benefit from an expanded public Chair roster. Further, most of the benefits would likely accrue to customers in cases situated in those locations that are currently lacking a sufficient number of local public Chairs by gaining new local public Chairs as a result of the proposed rule change. However, customers in cases situated in locations not lacking a sufficient number of local public Chairs would also likely incur fee increases.
Similar to customer cases, a majority of the benefits would likely accrue to parties to industry disputes that require a public Chair and are situated in locations lacking such Chairs. Thus, parties to industry disputes that require a non-public Chair would likely not benefit from additional local public Chairs due to the proposed changes, even though non-public Chairs would be compensated at the same, higher rate and these parties would incur the same fee increases as parties to customer cases or parties to industry disputes that require a public Chair.
FINRA does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, FINRA does not expect that the proposed rule change would impact FINRA's competitive position relative to other arbitration forums.
An alternative to the proposed amendments is a higher or lower amount of increase in Chair honoraria. A higher amount would further incentivize arbitrators to serve as Chair, and FINRA would incur fewer expenses reimbursing non-local arbitrators for their travel. A higher amount, however, would also increase the fees on the parties to the arbitration, potentially making the forum less accessible.
Parties would incur fewer expenses for a lower amount of increase in Chair honoraria. A lower amount, however, may not be able to provide sufficient incentives for arbitrators to become a Chair, and FINRA would incur a higher level of expense to reimburse non-local arbitrators. FINRA believes the proposed level of increase in honoraria balances the expected increase in the number of local Chairs with the higher fees that would be paid by the parties to an arbitration.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe BYX Exchange, Inc. (“BYX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposed rule change to extend the current pilot program related to BYX Rule 11.17, Clearly Erroneous Executions, to the close of business on April 20, 2021. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to extend the effectiveness of the Exchange's current rule applicable to Clearly Erroneous Executions to the close of business on April 20, 2021. Portions of Rule 11.17, explained in further detail below, are currently operating as a pilot program set to expire on October 20, 2020.
On September 10, 2010, the Commission approved, on a pilot basis, changes to BYX Rule 11.17 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
On December 26, 2018, the Commission published the proposed Eighteenth Amendment
The Exchange now proposes to amend BYX Rule 11.17 to extend the pilot's effectiveness to the close of business on
The Exchange does not propose any additional changes to BYX Rule 11.17. The Exchange believes the benefits to market participants from the more objective clearly erroneous executions rule should continue on a limited six month pilot basis. As the Plan was approved by the Commission to operate on a permanent, rather than pilot, basis the Exchange intends to assess whether additional changes should also be made to the operation of the clearly erroneous execution rules. Extending the effectiveness of BYX Rule 11.17 for an additional six months should provide the Exchange and other national securities exchanges additional time to consider further amendments, if any, to the clearly erroneous execution rules.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that extending the clearly erroneous execution pilot under BYX Rule 11.17 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and the other national securities exchanges consider and develop a permanent proposal for clearly erroneous execution reviews.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange understands that FINRA and other national securities exchanges will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No comments were solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe”) is filing with the Securities and Exchange Commission (“Commission”) a proposal to amend its Fees Schedule to adopt new fee codes related to the execution of equity legs of a stock-option order. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule to adopt a new fee codes for equity legs of a stock-option orders managed by additional designated broker-dealers, effective October 7, 2020.
The Exchange first notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. More specifically, the Exchange is only one of 16 options venues to which market participants may direct their order flow. Based on publicly available information, no single options exchange has more than 16% of the market share.
Stock-option orders are complex instruments that constitute the purchase or sale of a stated number of units of an underlying stock or a security convertible into the underlying stock coupled with the purchase or sale of an option contract(s) on the opposite side of the market and execute in the same manner as complex orders. Through this functionality, the stock portions of stock-option strategy orders are electronically communicated by the Exchange to a designated broker-dealer (currently, Penserrra and Cowen are the only broker-dealers that may be designated for this service), who then manages the execution of such stock portions. Currently, the Exchange assesses a stock handling fee of $0.0010 per share for the processing and routing by the Exchange of the stock portion of stock-option strategy orders communicated to Cowen (
The Exchange proposes to amend its fee schedule to reflect the option of three additional designated broker-dealers, Libucki, FOG and SRT, to manage the execution of the stock portion of a stock-option strategy order. Specifically, the Exchange proposes to adopt: Fee code EL, applicable to equity leg orders whose executions are managed by Libucki; fee code EF, applicable to equity leg orders whose executions are managed by FOG; and fee code ES, applicable to equity leg orders whose executions are managed by SRT. Like Penserra, the three additional designated broker-dealers will not assess the Exchange fees for managing the stock-portion of a stock-option order, but rather will assess and bill their customers directly, and therefore, the Exchange does not wish to assess a stock handling fee on stock-option orders yielding fee codes EL, EF and ES. The proposed rule change reflects in the Stock Portion of Stock-Option Strategy Orders table of the Fees Schedule that, along with stock-option strategy orders managed by Penserra, such orders managed by Libucki, FOG and SRT will not be subject to a fee.
The Exchange believes that the proposed rule change is consistent with Section 6 of the Act,
The Exchange believes that its proposed change to adopt fee codes EL, EF and ES, which will assess no fee for stock portions of stock-option strategy order executions managed by Libucki, FOG and SRT, respectively, is consistent with Section 6(b)(4) of the Act in that the proposal is reasonable, equitable and not unfairly discriminatory. Specifically, the Exchange believes the proposal is reasonable as market participants will not be subject to a fee for the execution of the stock-portion of a stock-option order handled by these designated broker-dealers. The Exchange believes it's appropriate to not assess a fee for orders managed by these three broker-dealers as they will directly charge customers for the stock portion of stock-option strategy orders and not charge the Exchange (which would, if charged, pass those fees through to customers). Assessing no charge for orders yielding the proposed fee codes is also reasonable, equitable and not unfairly discriminatory because the Exchange currently assesses no charge for stock-option orders managed by another designated broker-dealer, Penserra, for the same reason Penserra also directly charges customers instead of the Exchange for handling of the equity portion of a stock-option order. Further, the Exchange believes the proposal is equitable and not unfairly discriminatory because the proposed change applies to all TPHs and all TPHs that execute stock-option orders in the complex book will have the option to utilize Libucki, FOG and SRT to manage the execution of the stock portion of their stock-option strategy orders.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange does not believe that the proposed change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed change will apply uniformly to the stock portions of all market participants' stock-option strategy orders that are handled by Libucki, FOG and SRT, respectively. The proposed rule change provides TPHs with additional options regarding the Exchange's handling of their stock-option orders.
The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. As previously discussed, the Exchange operates in a highly competitive market. TPHs have numerous alternative venues that they may participate on and direct their order flow, including 15 other options exchanges. Based on publicly available information, no single options exchange has more than 16% of the market share.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) 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, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, the Securities and Exchange Commission will hold an Open Meeting on Wednesday, October 28, 2020, at 10:00 a.m.
The meeting will be webcast on the Commission's website at
This meeting will begin at 10:00 a.m. (ET) and will be open to the public via audio webcast only on the Commission's website at
The Commission will consider whether to adopt rules and related amendments designed to provide an updated and more comprehensive approach to the regulation of funds' use of derivatives and other transactions while enhancing investor protections. The amendments the Commission will consider also would include new reporting requirements to enhance the Commission's ability to effectively oversee funds' use of derivatives. The Commission also will consider whether to rescind existing guidance and exemptive relief addressing derivatives and other transactions that would be covered by this new regulatory framework.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact Vanessa A. Countryman, Office of the Secretary, at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) is filing with the Securities and Exchange Commission (“Commission”) a proposal to amend its Fees Schedule to adopt new fee codes related to the execution of equity legs of a stock-option order. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule to adopt a new fee codes for equity legs of a stock-option orders managed by additional designated broker-dealers, effective October 7, 2020.
The Exchange first notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. More specifically, the Exchange is only one of 16 options venues to which market participants may direct their order flow. Based on publicly available information, no single options exchange has more than 16% of the market share.
Stock-option orders are complex instruments that constitute the purchase or sale of a stated number of units of an underlying stock or a security convertible into the underlying stock coupled with the purchase or sale of an option contract(s) on the opposite side of the market and execute in the same manner as complex orders. Through this functionality, the stock portions of stock-option strategy orders are electronically communicated by the Exchange to a designated broker-dealer (currently, Penserra and Cowen are the only broker-dealers that may be designated for this service), who then manages the execution of such stock portions. Currently, the Exchange assesses a stock handling fee of $0.0010 per share for the processing and routing by the Exchange of the stock portion of stock-option strategy orders communicated to Cowen (
The Exchange proposes to amend its fee schedule to reflect the option of three additional designated broker-dealers, Libucki, FOG and SRT, to manage the execution of the stock portion of a stock-option strategy order. Specifically, under the Fee Codes and Associated Fees in the Fee Schedule, the Exchange proposes to adopt: Fee code EL, applicable to equity leg orders whose executions are managed by Libucki; fee code EF, applicable to equity leg orders whose executions are managed by FOG; and fee code ES, applicable to equity leg orders whose executions are managed by SRT. Like Penserra, the three additional designated broker-dealers will not assess the Exchange fees for managing the stock-portion of a stock-option order, but rather will assess and bill their customers directly, and therefore, the Exchange does not wish to assess a stock handling fee on stock-option orders yielding fee codes EL, EF and ES.
The Exchange believes that the proposed rule change is consistent with Section 6 of the Act,
The Exchange believes that its proposed change to adopt fee codes EL, EF and ES, which will assess no fee for stock portions of stock-option strategy order executions managed by Libucki, FOG and SRT, respectively, is consistent with Section 6(b)(4) of the Act in that the proposal is reasonable, equitable and not unfairly discriminatory. Specifically, the Exchange believes the proposal is reasonable as market participants will not be subject to a fee for the execution of the stock-portion of a stock-option order handled by these designated broker-dealers. The Exchange believes it's appropriate to not assess a fee for orders managed by these three broker-dealers as they will directly charge customers for the stock portion of stock-option strategy orders and not charge the Exchange (which would, if charged, pass those fees through to customers). Assessing no charge for orders yielding the proposed fee codes is also reasonable, equitable and not unfairly discriminatory because the Exchange currently assesses no charge for stock-option orders managed by another designated broker-dealer, Penserra, for the same reason Penserra also directly charges customers instead of the Exchange for handling of the equity portion of a stock-option order. Further, the Exchange believes the proposal is equitable and not unfairly discriminatory because the proposed change applies to all TPHs and all TPHs that execute stock-option orders in the complex book will have the option to utilize Libucki, FOG and SRT to manage the execution of the stock portion of their stock-option strategy orders.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange does not believe that the proposed change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed change will apply uniformly to the stock portions of all market participants' stock-option strategy orders that are handled by Libucki, FOG and SRT, respectively. The proposed rule change provides TPHs with additional options regarding the Exchange's handling of their stock-option orders.
The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. As previously discussed, the Exchange operates in a highly competitive market. TPHs have numerous alternative venues that they may participate on and direct their order flow, including 15 other options exchanges. Based on publicly available information, no single options exchange has more than 16% of the market share.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) 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.
Selective Service System.
Notice.
The following forms have been submitted to the Office of Management and Budget (OMB) for extension of clearance in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35):
Copies of the above identified forms can be obtained upon written request to the Selective Service System, Operations Directorate, 1515 Wilson Boulevard, Arlington, Virginia 22209-2425.
Written comments and recommendations for the proposed extension of clearance of the form should be sent within 60 days of the publication of this notice to the Selective Service System, Operations Directorate, 1515 Wilson Boulevard, Arlington, Virginia 22209-2425.
A copy of the comments should be sent to the Office of Information and Regulatory Affairs, Attention: Desk Officer, Selective Service System, Office of Management and Budget, New Executive Office Building, Room 3235, Washington, DC 20503.
Small Business Administration.
30-Day notice.
The Small Business Administration (SBA) is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act (PRA) and OMB procedures, SBA is publishing this notice to allow all interested members of the public an additional 30 days to provide comments on the proposed collection of information.
Submit comments on or before November 25, 2020.
Comments should refer to the information collection by title and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205-7030
Section 1102 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Public Law 116-136, authorizes SBA to guarantee loans made by banks or other financial institutions under a new temporary program titled the “Paycheck Protection Program” (PPP). These loans are available to eligible small businesses, certain non-profit organizations, veterans' organizations, Tribal business concerns, independent contractors, and self-employed individuals adversely impacted by the COVID-19 Emergency. Proceeds of a PPP loan may be used for payroll costs, costs related to the continuation of group health care benefits during periods of paid sick, medical or family leave, and insurance premiums, mortgage interest payments, rent payments, utility payments, interest payments on other debt incurred prior to February 15, 2020, and to refinance an eligible SBA Economic Injury Disaster Loan. Under section 1106(b) of the CARES Act, a loan may be forgiven in full or in part if the PPP borrower uses the proceeds for payroll costs, payment of interest on a covered mortgage, payment on any covered rent obligation, and any covered utility payment.
In order to make the financial assistance available as expeditiously as possible after the PPP was authorized, SBA obtained emergency approval of this information collection. As required by the PRA, SBA is submitting the information collection to OMB for standard (non-emergency) review and approval to use the information
Comments on this information collection may be submitted to the addresses listed above on (a) whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
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Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments up to November 25, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to G. Kevin Saba, Director, Office of Policy and Program Support, Office of Private Sector Exchange, SA-4E, Washington, DC 20522-0505; the office may be reached by email at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The collection is the continuation of information collected and needed by the Bureau of Educational and Cultural Affairs in administering the Exchange Visitor Program (J-Nonimmigrant) under the provisions of the Mutual Educational and Cultural Exchange Act, as amended (22 U.S.C. 2451,
Access to Form DS-2019 is made available to Department-designated sponsors electronically via the Student and Exchange Visitor Information System (SEVIS).
Federal Aviation Administration, (FAA), Department of Transportation.
Notice of availability.
The FAA, Eastern Service Center, is issuing this notice to advise the public of the availability of the Final Environmental Assessment (Final EA)/Finding of No Significant Impact (FONSI) and the Record of Decision (ROD) for the South-Central Florida Metroplex Project.
Lisa Favors, Federal Aviation Administration, Operations Support Group, Eastern Service Center, 1701 Columbia Avenue, College Park, Georgia 30337, (404) 305-5604. Additional information about the FAA's actions and environmental review of this project is available at the following website:
The FAA prepared a Final Environmental Assessment (EA), dated October 15, 2020, to assess the potential environmental impacts of the South-Central Florida Metroplex project in compliance with the National Environmental Policy Act of 1969, 42 U.S.C. 4321
(1) Online at
(2) Electronic Versions of the documentation have been sent to 117 libraries in the General Study Area with a request to make the digital document available to patrons. A complete list of these libraries with electronic copies of the documentation is available online at the website above. The FAA recognizes that libraries may be closed due to the COVID-19 public health emergency and, therefore, availability through these libraries may be impacted.
(3) If you are unable to access the documentation through one of these means, by contacting Lisa Favors at 404-305-5604.
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Announcement of charter renewal of the Railroad Safety Advisory Committee (RSAC).
FRA announces the charter renewal of the RSAC, a Federal Advisory Committee established by the U.S. Secretary of Transportation in accordance with the Federal Advisory Committee Act to provide information, advice, and recommendations to the FRA Administrator on matters relating to railroad safety. This charter renewal will be effective for two years from the date it is filed with Congress.
Kenton Kilgore, RSAC Designated Federal Officer/RSAC Coordinator, FRA Office of Railroad Safety, 202-493-6286; or Larry Woolverton, Executive Officer, FRA Office of Railroad Safety, 202-493-6212.
This notice is provided in accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 2).
Issued in Washington, DC.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of petition denial.
Daimler Trucks North America (DTNA) has determined that certain model year (MY) 2011-2019 DTNA motor vehicles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108,
Leroy Angeles, Office of Vehicle Safety Compliance, NHTSA, telephone (202) 366-5304, facsimile (202) 366-3081.
DTNA has determined that certain MY 2011-2019 DTNA motor vehicles do not fully comply with paragraph S6.2 of FMVSS No. 108,
Notice of receipt of DTNA's petition was published with a 30-day public comment period on April 23, 2019, in the
Approximately 14,340 MY 2011-2019 Western Star 4700 and 4900, Freightliner Business Class M2, 114SD, 108SD, 122SD, and Coronado motor vehicles manufactured between May 4, 2010, and August 23, 2018, are potentially involved.
In its noncompliance report, DTNA stated that the noncompliance is that the brake lights in the subject vehicles illuminate with Automatic Traction Control (ATC) activation and, therefore, do not meet the requirements specified in S6.2.1 of FMVSS No. 108.
Paragraphs S6.2.1 and S7.3.5, Table I-a of FMVSS No. 108, include the requirements relevant to this petition. No additional lamp, reflective device, or other motor vehicle equipment is permitted to be installed that impairs the effectiveness of lighting equipment required by FMVSS No. 108. Stop lamps must be activated upon application of the service brakes. The stop lamps may also be activated by a device designed to retard the motion of the vehicle.
DTNA describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, DTNA offers the following reasoning:
1. ATC events occur during low traction conditions such as snow, ice, and mud. The duration of the event can be very short and may not even be noticed by the following driver. If brake light illumination for an ATC event is noticed, it would help to provide early warning of an adverse road condition ahead and encourage the following driver to slow down. Below are several examples of ATC events:
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Brakes are commonly applied causing the brake lights to illuminate when a driver sees or senses a change in road conditions such as an icy patch. Reducing vehicle speed in adverse conditions increases safety, so signaling changing road conditions to following drivers would improve safety and give them the opportunity to increase the following distance. DOT guidance supports this goal:
○ NHTSA's Winter Driving Tips says: “Drive slowly. It's harder to control or stop your vehicle on a slick or snow-covered road. Increase your following distance enough so that you'll have plenty of time to stop for vehicles ahead of you.”
○ FMCSA released CMV Driving Tips; Tip #1 is: Reduce Your Driving Speed in Adverse Road and/or Weather Conditions. “You should reduce your speed by
2. DTNA states that it is not aware of any accidents, injuries, owner complaints, or field reports for brake light illumination triggered by ATC events concerning the subject vehicles.
3. DTNA notes that NHTSA has previously granted petitions for decisions of inconsequential noncompliance with lighting requirements where there were technical noncompliances that did not create a negative impact on safety.
a. DTNA cites a petition for inconsequentiality submitted by General Motors (GM) which was granted by NHTSA.
DTNA believes that the same situation exists in the present case, with temporary illumination of the brake lamps during ATC activation. The temporary brake light illumination serves to emphasize the message to following drivers that adverse or unusual road conditions may exist and they should pay close attention.
b. DTNA also cites another petition for inconsequentiality submitted by GM which was granted by NHTSA.
DTNA concludes by again contending that the subject noncompliance is inconsequential as it relates to motor vehicle safety and asking that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, be granted.
DTNA's complete petition and all supporting documents are available by logging onto the Federal Docket Management System (FDMS) website at:
NHTSA has evaluated the merits of DTNA's petition for inconsequential noncompliance and has decided that it should be denied.
The purpose of FMVSS No. 108 is to reduce traffic accidents, and deaths and injuries resulting from traffic accidents, by providing adequate illumination of the roadway and by enhancing the conspicuity of motor vehicles on the public roads so that their presence is perceived and their signals understood, both in daylight and darkness or other conditions of reduced visibility.
The noncompliance at issue here is that the stop lamps in the subject vehicles illuminate during a traction control event. Specifically, during a traction control event, the stop lamps are being activated by DTNA's ATC, which is not designed to retard the motion of the vehicle. This is a clear noncompliance with paragraphs S6.2.1 and S7.3.5, Table I-a of FMVSS No. 108. These paragraphs state that no additional lamp, reflective device, or other motor vehicle equipment is permitted to be installed that impairs the effectiveness of lighting equipment and that the stop lamps must be activated upon application of the service brake. The requirements also permit that the stop lamp may be activated by a device designed to retard the motion of the vehicle.
DTNA acknowledges that, in response to a request for interpretation from GM, the Agency stated that “activation of the stop lamps for a purpose other than to indicate stopping or slowing will create confusion for the driver following as to the meaning of the signal, with the potential of causing that driver to apply the brakes in his or her vehicle inappropriately.”
DTNA cites a petition from GM that the Agency granted, relating to the temporary illumination of the center high mounted stop lamp (CHMSL).
Although the referenced GM decision issued by NHTSA stated that it was limited to the specific facts presented, DTNA also cites another petition submitted by GM that the Agency granted regarding the failure of the subject vehicles to meet the parking lamp requirements of paragraph S7.8.5 of FMVSS No. 108.
a. Operated during the daytime with the master lighting switch in “AUTO” mode.
b. The transmission is not in “Park.”
c. Three or more high-inrush current spikes that exceed the body control module (BCM) inrush current threshold occur on the parking lamp/daytime running lamp (DRL) circuit within a period of 0.625 seconds.
Under certain daytime conditions, a driver rapidly moving the headlamp switch between the “AUTO” and “Park” positions could generate these spikes that would turn the park lamps off. Although potentially contradictory and misleading lighting signals resulted from this noncompliance, NHTSA granted the petition because, among other things, the noncompliance would occur only in daytime when parking lamps are generally not in use, a fairly high degree of unusual user intervention was required, and the condition would correct itself during normal vehicle operation.
Illumination of the stop lamps during a traction control event is an impairment of the stop lamp function. The safety risk occurs when the stop lamps are activated and other road users expect that the motion of the vehicle is being retarded, but the vehicle is not slowing, thereby potentially confusing or misleading road users by the introduction of a nonstandard signal.
The burden of establishing the inconsequentiality of a failure to comply with a
An important issue to consider in determining inconsequentiality based upon NHTSA's prior decisions on noncompliance issues was the safety risk to individuals who experience the type of event against which the recall would otherwise protect.
Arguments that only a small number of vehicles or items of motor vehicle equipment are affected have also not justified granting an inconsequentiality petition.
In consideration of the foregoing, NHTSA has decided that DTNA has not met its burden of persuasion that the subject FMVSS No. 108 noncompliance is inconsequential to motor vehicle safety. Accordingly, DTNA's petition is hereby denied and DTNA is consequently obligated to provide notification of and free remedy for that noncompliance under 49 U.S.C. 30118 and 30120.
Department of Veterans Affairs.
Notice of a New Computer Matching Program.
Notice is hereby given that the Department of Veterans Affairs (VA) intends to conduct a recurring computer matching program. This will match personnel records of the Department of Defense (DoD) with VA records of benefit recipients under the Montgomery GI Bill—Active Duty, Montgomery GI Bill—Selected Reserve, and the Post-9/11 GI Bill. The goal of these matches is to identify the eligibility status of Veterans, servicemembers, and reservists who have applied for or who are receiving education benefit payments under the Montgomery GI Bill—Active Duty, Montgomery GI Bill—Selected Reserve, and the Post-9/11 GI Bill. The purpose of the match is to enable VA to verify that individuals meet the conditions of military service and eligibility criteria for payment of benefits determined by VA under the Montgomery GI Bill—Active Duty, Montgomery GI Bill—Selected Reserve, and Post-9/11 GI Bill.
Comments on this match must be received no later than 30 days after date of publication in the
Comments may be submitted through
Eric Patterson, Legislative Strategy, Development and Implementation Chief, Education Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-9830.
The authority to conduct this match is found in 38 U.S.C. 3684A(a)(1). The records covered include eligibility records extracted from DoD personnel files and benefit records that VA establishes for all individuals who have applied for and/or are receiving, or have received education benefit payments under the Montgomery GI Bill—Active Duty, Montgomery GI Bill—Selected Reserve, and the Post-9/11 GI Bill. These benefit records are contained in a VA system of records identified as 58VA21/22/28 entitled: Compensation, Pension, Education, and Vocational Rehabilitation and Employment Records—VA, first published in the
This information is required by paragraph 6c of the “Guidelines on the Conduct of Matching Programs” issued by OMB (54 FR 25818), interpreting the provisions of the Privacy Act pertaining to computer matching, as well as those computer matching portions of a revision of OMB Circular No. A-108, Federal Responsibilities for Review, Reporting, and Publication under the Privacy Act (December 23, 2016). The current matching agreement with the Department of Defense (DoD) expires November 25, 2020. The legal authority to conduct this match is 38 U.S.C. 5106, which requires any Federal department or agency to provide VA such information as VA requests for the purposes of determining eligibility for benefits or verifying other information with respect to payment of benefits. A copy of the notice has been provided to both Houses of Congress and OMB. The matching program is subject to their review.
This computer match is between the Department of Veterans Affairs (VA) and the Department of Defense (DoD).
The authority to conduct this match is the Privacy Act, 5 U.S.C. 552a, 38 U.S.C. 5106, and 38 U.S.C. 3684A(a)(1).
This agreement establishes the conditions under which the Department of Defense (DoD) agrees to disclose information regarding eligibility to education benefits under the Montgomery GI Bill, Montgomery GI Bill—Selected Reserve and the Post-9/11 GI Bill to the Department of Veterans Affairs (VA). The purpose of this computer matching program between VA and DoD is to verify that individuals meet the conditions of military service and eligibility criteria for payment of benefits determined by VA under three enacted programs.
Veterans, Servicemembers, Reservists and Dependents.
Department of Defense (DoD), as the source agency, will provide to VA the eligibility records on DoD individuals consisting of data elements which contains specific data relating to the requirements for eligibility including data on member contribution amounts, service periods, and transfer of entitlement. VA will match on attributes, including Social Security Number (SSN), DoD Electronic Data Interchange Personal Identifier (EDIPI—or VA_ID), Date-of-Birth, Last Name, and File Identification Number.
These benefit records are contained in a VA system of records identified as 58VA21/22/28 entitled: Compensation, Pension, Education, and Vocational Rehabilitation and Employment Records—VA, first published in the
The Senior Agency Official for Privacy, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Joseph S. Stenaka, Executive Director for Information Security Operations and Chief Privacy Officer, approved this document on October 2, 2020 for publication.
Schedule A. Positions other than those of a confidential or policy-determining character for which it is not practicable to examine shall be listed in Schedule A.
Schedule B. Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination shall be listed in Schedule B. Appointments to these positions shall be subject to such noncompetitive examination as may be prescribed by OPM.
Schedule C. Positions of a confidential or policy-determining character normally subject to change as a result of a Presidential transition shall be listed in Schedule C.
Schedule D. Positions other than those of a confidential or policy-determining character for which the competitive service requirements make impracticable the adequate recruitment of sufficient numbers of students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs. These positions, which are temporarily placed in the excepted service to enable more effective recruitment from all segments of society by using means of recruiting and assessing candidates that diverge from the rules generally applicable to the competitive service, shall be listed in Schedule D.
Schedule E. Position of administrative law judge appointed under 5 U.S.C. 3105. Conditions of good administration warrant that the position
Schedule F. Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition shall be listed in Schedule F. In appointing an individual to a position in Schedule F, each agency shall follow the principle of veteran preference as far as administratively feasible.”
(b) The Director of the Office of Personnel Management (Director) shall:
(b) The requirements set forth in subsection (a) of this section shall apply to currently existing positions and newly created positions.
(c) When conducting the review required by subsection (a) of this section, each agency head should give particular consideration to the appropriateness of either petitioning the Director to place in Schedule F or including in the determination published in the
(A) substantive participation in the development or drafting of regulations and guidance; or
(B) substantive policy-related work in an agency or agency component that primarily focuses on policy;
(A) directly reporting to or regularly working with an individual appointed by either the President or an agency head who is paid at a rate not less than that earned by employees at Grade 13 of the General Schedule; or
(B) working in the agency or agency component executive secretariat (or equivalent); or
(d) The Director shall promptly determine whether to grant any petition under subsection (a) of this section. Not later than December 31 of each year, the Director shall report to the President, through the Director of the Office of Management and Budget and the Assistant to the President for Domestic Policy, concerning the number of petitions granted and denied for that year for each agency.
(e) Each agency head shall, as necessary and appropriate, expeditiously petition the Federal Labor Relations Authority to determine whether any Schedule F position must be excluded from a collective bargaining unit under section 7112(b) of title 5, United States Code, paying particular attention to the question of whether incumbents in such positions are required or authorized to formulate, determine, or influence the policies of the agency.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) If any provision of this order, or the application of any provision to any person or circumstances, is held to be invalid, the remainder of this order and the application of any of its other provisions to any other persons or circumstances shall not be affected thereby.
(e) Nothing in this order shall be construed to limit or narrow the positions that are or may be listed in Schedule C.
Environmental Protection Agency (EPA).
Proposed rule.
The U.S. Environmental Protection Agency (EPA) is publishing for public comment a proposed rule under the Vessel Incidental Discharge Act that would establish national standards of performance for marine pollution control devices for discharges incidental to the normal operation of primarily non-military and non-recreational vessels 79 feet in length and above into the waters of the United States or the waters of the contiguous zone. The proposed national standards of performance were developed in coordination with the U.S. Coast Guard (USCG) and in consultation with interested Governors. The proposed standards, once finalized and implemented through corresponding USCG regulations addressing implementation, compliance, and enforcement, would reduce the discharge of pollutants from vessels and streamline the current patchwork of federal, state, and local vessel discharge requirements. Additionally, EPA is proposing procedures for states to follow if they choose to petition EPA to issue an emergency order, to review any standard of performance, regulation, or policy, to request additional requirements with respect to discharges in the Great Lakes, or to apply to EPA to prohibit one or more types of vessel discharges proposed for regulation in this rulemaking into specified waters to provide greater environmental protection.
Comments must be received on or before November 25, 2020. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before November 25, 2020.
Submit your comments to the public docket for this proposed rule, identified by Docket No. EPA-HQ-OW-2019-0482, at
Jack Faulk at (202) 564-0768;
This supplementary information is organized as follows:
EPA solicits comment on the proposed rule during the public comment period. Submit your comments, identified by Docket ID No. EPA-HQ-OW-2019-0482, at
EPA will generally not consider comments or comment contents located outside of the primary submission (
EPA is temporarily suspending its Docket Center and Reading Room for public visitors, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via
EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.
EPA proposes this rule under the authority of Clean Water Act Sections 301, 304, 307, 308, 312, and 501 as amended by the Vessel Incidental Discharge Act. 33 U.S.C. 1311, 1314, 1317, 1322, and 1361.
Discharges incidental to the normal operation of a vessel, also referred to as “incidental discharges” or “discharges” in this rulemaking, can have adverse impacts on aquatic ecosystems and other potential impacts such as to human health through contamination of food from aquaculture/shellfish harvesting areas because the discharges may contain pollutants such as aquatic nuisance species (ANS), nutrients, bacteria or pathogens (
The Clean Water Act (CWA), the Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA), the Act to Prevent Pollution from Ships (APPS), and several other federal, state, local, and international authorities have established over time various requirements for both domestic and international vessels. To clarify and streamline existing requirements, in December of 2018, the President signed into law the Vessel Incidental Discharge Act (VIDA). 33 U.S.C. 1322(p). The VIDA established a new CWA Section 312(p) titled “Uniform National Standards for Discharges Incidental to Normal Operation of Vessels.” The VIDA consolidates and restructures the existing regulatory framework for non-military (vessels of the Armed Forces) and non-recreational vessels; clarifies current and future regulatory coverage for different types of vessels; and, requires EPA and the USCG to establish national standards of performance for marine pollution control devices and corresponding implementing regulations, respectively, to prevent or reduce the discharge of pollutants from vessels.
More specifically, the new CWA Section 312(p) directs the Administrator of EPA (Administrator) to develop national standards of performance in consultation with interested Governors and with the concurrence of the Secretary of the department in which the USCG is operating (Secretary) by December 2020. With limited exceptions, the VIDA requires that the standards be at least as stringent as EPA's 2013 National Pollutant Discharge Elimination System (NPDES) Vessel General Permit (VGP) requirements established under CWA Section 402.
The proposed rule would establish both general and specific discharge standards of performance for approximately 82,000 international and domestic non-military, non-recreational vessels operating in the waters of the United States or the waters of the contiguous zone. The types of vessels intended to be covered under the proposed rule include, but are not limited to, public vessels of the United States, fishing vessels (for ballast water only), passenger vessels such as cruise ships and ferries, barges, tugs and tows, offshore supply vessels, mobile offshore drilling units, tankers, bulk carriers, cargo ships, container ships, and
The general discharge standards of performance are designed to apply to all vessels and incidental discharges covered by the rule, as appropriate, and are organized into three categories: (1) General Operation and Maintenance, (2) Biofouling Management, and (3) Oil Management. The general discharge standards of performance are preventative in nature and require best management practices (BMPs) to minimize the introduction of pollutants into the discharges, as well as the volume of discharges.
The specific discharge standards of performance would establish requirements for 20 separate discharges incidental to the normal operation of a vessel from the following pieces of equipment and systems: Ballast tanks, bilges, boilers, cathodic protection, chain lockers, decks, desalination and purification systems, elevator pits, exhaust gas emission control systems, fire protection equipment, gas turbines, graywater systems, hulls and associated niche areas, inert gas systems, motor gasoline and compensating systems, non-oily machinery, pools and spas, refrigeration and air conditioning, seawater piping, and sonar domes. These discharge-specific requirements are based on best available technology economically achievable, best conventional pollutant control technology, and best practicable technology currently available, including the use of BMPs, to prevent or reduce the discharge of pollutants into the waters of the United States or the waters of the contiguous zone.
Pursuant to the VIDA, the proposed discharge standards of performance are proposed to be at least as stringent as the VGP, with some exceptions discussed below. However, the proposed standards do not incorporate the VGP requirements verbatim. EPA is proposing changes to the VGP requirements to transition the permit requirements into national technology-based standards of performance, improve clarity, enhance enforceability and implementation, or incorporate new information and technology. In some cases, this resulted in EPA consolidating or renaming the VGP requirements to comport with the VIDA. As proposed, the similarities and differences between the requirements in the proposed discharge standards of performance and the requirements in the VGP can be sorted into three distinct groups. The first group consists of 13 proposed discharge standards that are substantially the same as the requirements of the VGP: Boilers, cathodic protection, chain lockers, decks, elevator pits, fire protection equipment, gas turbines, inert gas systems, motor gasoline and compensating systems, non-oily machinery, pools and spas, refrigeration and air conditioning, and sonar domes. These 13 proposed discharge standards encompass the intent and stringency of the VGP but include other changes in response to the VIDA (
CWA Section 312(p) also directs EPA to establish additional discharge requirements for vessels operating in certain bodies of water, to include: The “Great Lakes,” the “Pacific Region,” and waters subject to Federal protection, in whole or in part, for conservation purposes (“federally-protected waters”). The proposed rule would establish place-based requirements to further prevent or reduce the discharge of pollutants into these waterbodies that may contain unique ecosystems, support distinctive species of aquatic flora and fauna, contend with more sensitive water quality issues, or otherwise require greater protection.
Finally, as required under CWA Section 312(p), EPA is proposing specific procedural requirements for states seeking to petition EPA to establish different discharge standards, issue emergency orders, or establish no-discharge zones.
This proposed rule, once finalized, will fulfill EPA's requirements under CWA Section 312(p) to establish technology-based national standards of performance for discharges incidental to the normal operation of primarily non-military, non-recreational vessels 79 feet in length and above. EPA solicits public comments on this proposal and the associated regulatory impact analysis, which can be found in the rulemaking docket.
EPA's regulatory regime under the CWA to address vessel discharges has changed over the years due to EPA regulations, court decisions, and new legislation. The first sentence of the Federal Water Pollution Control Act Amendments of 1972, commonly known as the CWA,
From 1972 to 2005, EPA vessel regulations were primarily limited to addressing the discharge of oil and sewage under CWA Sections 311 and 312, respectively. In December of 2003, a long-standing exclusion of discharges incidental to the normal operation of vessels from the CWA Section 402 NPDES permitting program became the subject of a lawsuit in the U.S. District Court for the Northern District of California (
In March 2005, the court determined the exclusion exceeded the Agency's authority under the CWA and subsequently in 2006 declared that “[t]he blanket exemption for discharges incidental to the normal operation of a vessel, contained in 40 CFR 122.3(a), shall be vacated as of September 30, 2008.”
In response to the court decision and the legislation, EPA issued the first VGP in December 2008 for discharges incidental to the normal operation of non-recreational, non-military vessels 79 feet in length and above. See 73 FR 79473, December 29, 2008. Additionally, in September 2014, EPA issued the sVGP for discharges from non-recreational, non-military vessels less than 79 feet. See 79 FR 53702, September 10, 2014. Upon expiration of the 2008 permit, EPA issued the second VGP in 2013. See 78 FR 21938, April 12, 2013.
After the EPA issuance of the VGP under the CWA and the USCG promulgation of regulations under the NANPCA, the vessel community expressed concerns regarding the lack of uniformity, duplication, and confusion associated with the vessel regulatory regime. See Errata to S. Rep. No. 115-89 (2019) [hereinafter VIDA Senate Report], at 3-5 (discussing these and similar concerns), available at
Specifically, CWA Section 312(p)(4) directs the Administrator, with concurrence of the Secretary and in consultation with interested Governors, to promulgate national standards of performance for marine pollution control devices for each type of discharge incidental to the normal operation of non-recreational and non-military vessels.
During the development of the proposed rule, EPA reviewed other U.S. laws and international authorities that address discharges incidental to the normal operation of a vessel. The requirements established under these authorities are currently being met and implemented and therefore are technologically and economically practicable and achievable. As appropriate, EPA considered these requirements while developing this proposed rule.
As expressly provided in the VIDA, this proposed rule would not affect the requirements for vessels established under any other provision of Federal law. 33 U.S.C. 1322(p)(9)(B). EPA provides a short summary of these U.S. authorities as well as some international authorities below.
The International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) is an international treaty that regulates certain discharges from vessels. MARPOL Annexes regulate different types of vessel pollution; the United States is a party to Annexes I, II, III, V, and VI. MARPOL is primarily implemented in the United States by APPS, 33 U.S.C. 1901
APPS regulates the discharge of oil and oily mixtures, noxious liquid substances, and garbage, including food wastes and plastic. With respect to oil and oily mixtures, the USCG regulations at 33 CFR 151.10 prohibit “any discharge of oil or oily mixtures into the sea from a ship” except when certain conditions are met, including a discharge oil content of less than 15 parts per million (ppm) and that the ship operates oily water separating equipment, a bilge monitor, a bilge alarm, or a combination thereof.
Substances regulated as noxious liquid substances under APPS are divided into four categories based on their potential to harm marine resources and human health. Under 46 CFR 153.1128, discharges of noxious liquid substances residues at sea may only take place at least 12 nautical miles (NM) from the nearest land. Given this requirement, the proposed rule would also prohibit the discharge of noxious liquid substances within 12 NM from the nearest land.
MARPOL Annex III addresses harmful substances in packaged form and is implemented in the United States by the Hazardous Materials Transportation Authorization Act of 1994, as amended (49 U.S.C. 5901
The Oil Pollution Act of 1990 and the associated USCG implementing regulations at 33 CFR parts 155 and 157 also address oil and oily mixture discharges from vessels. These regulations establish and reinforce the 15 ppm discharge standard under APPS for oil and oily mixtures for seagoing ships and require most vessels to have an oily water separator. Oceangoing vessels of less than 400 gross tonnage as measured under the Convention Measurement System of the International Convention on Tonnage Measurement of Ships (GT ITC) (400 gross register tonnage (GRT) if GT ITC is not assigned) must either have an approved oily water separator or retain oily water mixtures on board for disposal to an approved reception facility onshore. Oceangoing vessels of 400 GT ITC (400 GRT if GT ITC is not assigned) and above, but less than 10,000 GT ITC (10,000 GRT if GT ITC is not assigned), except vessels that carry ballast water in their fuel oil tanks, must be fitted with “approved 15 parts per million (ppm) oily-water separating equipment for the processing of oily mixtures from bilges or fuel oil tank ballast.” 33 CFR 155.360(a)(1). Oceangoing ships of 10,000 gross tonnage and above and oceangoing ships of 400 gross tonnage and above that carry ballast water in their fuel oil tanks, must be fitted with approved 15 ppm oily water separating equipment for the processing of oily mixtures from bilges or fuel oil tank ballast, a bilge alarm, and a means for automatically stopping any discharge of oily mixture when the oil content in the effluent exceeds 15 ppm. 33 CFR 155.370. 33 CFR part 155 also references oil containment and cleanup equipment and procedures for preventing and reacting to oil spills and discharges. The proposed rule references or incorporates the existing requirements for fuel and oil established under the Oil Pollution Act and APPS and prohibits the discharge of oil greater than 15 ppm.
CWA Section 311, Oil and Hazardous Substances Liability Act, states that it is a policy of the United States that there should be no discharges of oil or hazardous substances into the waters of the United States, adjoining shorelines, and certain specified areas, except where permitted under Federal regulations (
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the distribution, sale, and use of pesticides. One of the primary components of FIFRA requires the registration and labeling of all pesticides sold or distributed in the United States, ensuring that, if pesticides are used in accordance with the specifications on the label, they will not cause unreasonable adverse effects on humans or the environment. The proposed rule would reiterate from the VGP that any registered pesticide must be used in accordance with its FIFRA label for all activities that result in a discharge into the waters of the United States or the waters of the contiguous zone. The proposed rule does not negate the requirements under FIFRA and its implementing regulations to use registered pesticides consistent with the product's labeling. In fact, the discharge of pesticides used in violation of certain FIFRA requirements could also be a violation of these standards and therefore a violation of the CWA (
The National Marine Sanctuaries Act (NMSA) authorizes the designation and management of National Marine Sanctuaries to protect marine resources with conservation, education, historical, scientific, and other special qualities. Under NMSA, additional restrictions and requirements may be imposed on vessel operators who boat in and around National Marine Sanctuaries. Consistent with the VGP, the proposed rule would
Discharges incidental to the normal operation of vessels can have significant adverse impacts on aquatic ecosystems and other potential impacts such as to human health through contamination of food from aquaculture/shellfish harvesting areas through the addition of pollutants (
The information below provides an overview of the environmental impacts associated with the pollutants addressed in this proposed rule: ANS, nutrients, pathogens (including
ANS are a persistent problem in U.S. coastal and inland waters. ANS can include invasive plants, animals, and pathogens. The VIDA specifically includes ANS in the category of nonconventional pollutants to be regulated through the application of best available technology and best practicable technology. 33 U.S.C. 1322(p)(4)(B)(i).
ANS may be incidentally discharged or released from a vessel's operations through a variety of vessel systems and equipment, including but not limited to ballast water, sediment from ballast tanks, vessel hulls and appendages, seawater piping, chain lockers, and anchor chains. ANS pose severe threats to aquatic ecosystems, including outcompeting native species, damaging habitat, changing food webs, and altering the chemical and physical aquatic environment. Furthermore, ANS can have profound and wide-ranging socioeconomic impacts, such as damage to recreational and commercial fisheries, infrastructure, and water-based recreation and tourism. Once established, it is extremely challenging and costly to remove ANS and remediate the impacts. It has become even more critical to control discharges of ANS from vessel systems and equipment with the increase in ship traffic due to globalization and increased trade.
Nutrients, including nitrogen, phosphorus, and other micro-nutrients, are constituents of incidental discharges from vessels. Though often associated with discharges from sewage treatment facilities and other sources such as runoff from agricultural and urban stormwater sources, nutrients are also discharged from vessel sources such as runoff from deck cleaning, graywater, and bilgewater.
Increased nutrient discharges from anthropogenic sources are a major source of water quality degradation throughout the United States (U.S. Geological Survey, 1999). Generally, nutrient over-enrichment of waterbodies adversely impacts biological diversity, fisheries, and coral reef and seagrass ecosystems (National Research Council, 2000). One of the most notable effects of nutrient over-enrichment is the excess proliferation of plant life and ensuing eutrophication. A eutrophic system has reduced levels of dissolved oxygen, increased turbidity, and changes in the composition of aquatic flora and fauna. Such conditions also fuel harmful algal blooms, which can have significant adverse impacts on human health as well as aquatic life (National Research Council, 2000; Woods Hole Oceanographic Institute, 2007).
Pathogens are another constituent that can be found in discharges from vessels, particularly in graywater and ballast water discharges. Discharges of pathogens into waterbodies can adversely impact local ecosystems, fisheries, and human health. Pathogens found in untreated graywater are similar to, and in some cases may have a higher concentration than, domestic sewage entering land-based wastewater treatment plants (U.S. EPA, 2008). Specific pathogens of concern found in graywater include
Vessels can discharge a variety of oils during normal operations, including lubricating oils, hydraulic oils, and vegetable or organic oils. A significant portion of the lubricants discharged from a vessel during these normal operations directly enters the marine environment. Some types of oil and grease can be highly toxic and carcinogenic, and have been shown to alter the immune system, reproductive abilities, and liver functions of many aquatic organisms (Ober, 2010). Broadly, the toxicity of oil and grease to aquatic life is due to reduced oxygen transport potential and an inability of organisms to metabolize and excrete them once ingested, absorbed, or inhaled.
The magnitude of impact of oils differs depending on the chemical composition, method of exposure, concentration, and environmental conditions (
Aromatic hydrocarbon compounds, commonly present in fuels, lubricants, and additives, are consistently associated with acute toxicity and harmful effects in aquatic biota (Dupuis and Ucan-Marin, 2015
In establishing the VGP, EPA considered the research efforts focused on the development of environmentally acceptable lubricants (EALs). Production of EALs focuses on using chemicals with oxygen atoms, which, unlike hydrocarbons, makes them water soluble. The solubility of EALs increases their biodegradability, thereby decreasing their accumulation in aquatic environments. The solubility of EALs also makes it easier for aquatic life to metabolize and excrete these chemicals (U.S. EPA, 2011). Overall, EALs reduce bioaccumulation potential and toxic effects to aquatic life.
Vessel discharges can contain metal constituents from a variety of on-board sources, including graywater, bilgewater, exhaust gas emission control systems, and firemain systems. While some metals, including copper, nickel, and zinc, are known to be essential to organism function when present at certain levels, many others, including thallium and arsenic, are non-essential and/or are known to have only adverse impacts. Even essential metals may harm organism function in sufficiently elevated concentrations. Some metals may also bioaccumulate in the tissues of aquatic organisms, intensifying toxic effects. Through a process called biomagnification, concentrations of some metals can increase up the food chain, leading to elevated levels in commercially harvested fish species (U.S. EPA, 2007).
Vessel hulls and appendages are frequently coated in metal-based biocides to prevent
biofouling. The most widely-used metal in biocides is copper. While it is an essential nutrient, copper can be both acutely and chronically toxic to fish, aquatic invertebrates, and aquatic plants at higher concentrations. Elevated concentrations of copper can adversely impact survivorship, growth, and reproduction of aquatic organisms (U.S. EPA, 2016). Copper can inhibit photosynthesis in plants and interfere with enzyme function in both plants and animals in concentrations as low as 4 µg/L (U.S. EPA, 2016).
Vessel discharges can contain a variety of other toxic, conventional, and nonconventional pollutants. This rule would help to prevent and control the discharge of certain pollutants that have been identified in the various discharges. For example, graywater can contain phthalates phenols, and chlorine (U.S. EPA, 2008). These compounds can cause a variety of adverse impacts on aquatic organisms and human health. Phthalates are known to interfere with reproductive health, liver, and kidney function in both animals and humans. (Sekizawa et al., 2003; DiGangi et al., 2002). Chlorine can cause respiratory problems, hemorrhaging, and acute mortality to aquatic organisms even at relatively low concentrations (U.S. EPA, 2008).
Vessel discharges may also contain certain biocides used in vessel coatings, which can be harmful to aquatic organisms. For example, cybutryne, also commonly known as Irgarol 1051, is a biocide that functions by inhibiting the electron transport mechanism in algae, thus inhibiting growth. Numerous studies indicate that cybutryne is both acutely and chronically toxic to a range of marine organisms, and in certain cases, more harmful than tributyltin (Carbery et al, 2006; Van Wezel and Van Vlaardingen, 2004).
Some vessel discharges are more acidic or basic than the receiving waters, which can have a localized effect on pH (Alaska Department of Environmental Conservation, 2007). For example, exhaust gas emission control systems remove sulfur dioxide in exhaust gas and dissolve it in washwater, where it is then ionized and produces an acidic washwater. Research has shown that even minor changes in ambient pH can have profound effects, such as developmental defects, reduced larval survivorship, and decreased calcification of corals and shellfish (Oyen et al., 1991; Zaniboni-Filho et al., 2009, Marubini and Atkinson, 1999).
The proposed rule would apply to incidental discharges from non-military, non-recreational vessels operating in the waters of the United States or the waters of the contiguous zone. 33 U.S.C. 1322(p)(8)(B). Sections 502(7), 502(8), and 502(9) of the CWA define the terms “navigable waters,” “territorial seas,” and “contiguous zone,” respectively. The term “navigable waters” means the waters of the United States including inland waters and the territorial seas, where the United States includes the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territories of the Pacific Islands. The term “territorial seas” means the belt of seas that extends three miles seaward from the line of ordinary low water along the portion of the coast in direct contact with the open sea and the line marking the seaward limit of inland waters. The term “contiguous zone” means the entire zone established or to be established by the United States under Article 24 of the Convention of the Territorial Sea and the Contiguous Zone.
The proposed rule would apply to discharges incidental to the normal operation of a vessel as set forth in CWA Section 312(p)(2). The proposed rule would not apply to discharges incidental to the normal operation of a vessel of the Armed Forces subject to CWA Section 312(n); a recreational vessel subject to CWA Section 312(o); a small vessel less than 79 feet in length or a fishing vessel, except that the proposed rule would apply to any discharge of ballast water from a small vessel or fishing vessel; or a floating craft that is permanently moored to a pier, including a floating casino, hotel, restaurant, or bar. The types of vessels intended to be covered under the proposed rule include, but are not limited to, public vessels of the United States, commercial fishing vessels (for ballast water only), passenger vessels such as cruise ships and ferries, barges, tugs and tows, offshore supply vessels, mobile offshore drilling units, tankers, bulk carriers, cargo ships, container ships, and research vessels. EPA estimates that the domestic and international vessel population that would be subject to the proposed national standards of performance is approximately 82,000 vessels. The proposed rule also would not apply to
The national standards of performance proposed herein apply equally to new and existing vessels except in such cases where the proposed rule expressly distinguishes between such vessels as authorized by CWA Section 312(p)(4)(C)(ii).
EPA proposes to establish general as well as specific national standards of performance for discharges incidental to the normal operation of a vessel described in CWA Section 312(p)(2). The general standards would be applicable to all vessels and incidental discharges subject to the proposed rule to the extent that the requirements are appropriate for each incidental discharge. The specific standards would be applicable to specific incidental discharges from the normal operation of the following types of vessel equipment and systems: Ballast tanks, bilges, boilers, cathodic protection, chain lockers, decks, desalination and purification systems, elevator pits, exhaust gas emission control systems, fire protection equipment, gas turbines, graywater systems, hulls and associated niche areas, inert gas systems, motor gasoline and compensating systems, non-oily machinery, pools and spas, refrigerators and air conditioners, seawater piping, and sonar domes.
The VIDA recognizes that safety of life at sea and other emergency situations not resulting from the negligence or malfeasance of the vessel owner, operator, master, or person in charge may arise, and that the prevention of loss of life or serious injury may require operations that would not otherwise be consistent with these standards. Therefore, it is reasonably likely that no person would be found to be in violation of the proposed rule under the affirmative defense described in CWA Section 312(p)(8)(C). The corresponding USCG implementing regulations would include language to address vessel emergency and safety considerations.
The proposed national standards of performance, once finalized, would become effective beginning on the date upon which the regulations promulgated by the Secretary pursuant to CWA Section 312(p)(5) governing the implementation, compliance, and enforcement of the national standards of performance become final, effective, and enforceable. Per CWA Section 312(p)(3)(c), as of that date, the requirements of the VGP and all regulations promulgated by the Secretary pursuant to Section 1101 of the NANPCA (16 U.S.C. 4711) (as in effect on December 3, 2018), including the regulations contained in subparts C and D of part 151 of title 33, Code of Federal Regulations, and 46 CFR 162.060 (as in effect on December 3, 2018), shall be deemed repealed and have no force or effect. Similarly, as of that same date, any CWA Section 401 certification requirement in Part 6 of the 2013 VGP, shall be deemed repealed and have no force or effect.
During the development of the proposed rule, EPA and the USCG reached out to other federal agencies, states, tribes, non-governmental organizations, and the maritime industry. Detailed documentation of the stakeholder outreach prior to the proposal is in the public docket for the proposed rulemaking. EPA also intends to hold stakeholder engagement opportunities during the proposed rule public comment period. General summaries of the outreach are included in this section and in section XII. Statutory and Executive Order Reviews.
EPA, in coordination with the USCG, hosted two informational webinars on May 7 and 15, 2019 to enhance public awareness about the VIDA and provide opportunity for engagement. During the webinars, EPA and the USCG provided a general overview of the VIDA, discussed interim and future discharge requirements, described future state and public engagement opportunities, and answered clarifying questions raised by the audience. The webinar recordings and presentation material are available at
Additionally, EPA, in coordination with the USCG, hosted a public, in-person listening session at the U.S. Merchant Marine Academy in New York on May 29-30, 2019. At the listening session, EPA with the support of the USCG, provided an overview of the VIDA, described the interim requirements and the framework for the future regulations, and conducted sessions on key vessel discharges to provide an opportunity for public input. Fifty-two individuals from a variety of stakeholder groups attended and provided input. Public input largely centered on ballast water management systems, including testing methods and monitoring requirements. Stakeholders requested harmonization of domestic regulations with those of the International Maritime Organization (IMO), such as standards for exhaust gas emission control systems. Input was also received on challenges with compliance and reporting under the VGP and the USCG ballast water regulations. The meeting agenda and a summary of the comments received are available in the public docket for this proposed rulemaking.
During the public comment period for this proposed rule, EPA intends to hold public meetings to provide an opportunity for stakeholders to ask questions about the proposed rule and describe procedures for submitting formal comments on the rule. Details for these public meetings will be made available at
Pursuant to the terms of Executive Order 13132, on July 9, 2019 in Washington, DC, EPA and the USCG conducted a Federalism consultation briefing to allow states and local officials to have meaningful and timely input into EPA rulemaking for the development of the national standards of performance. Additional information regarding the VIDA Federalism Consultation can be found in section XII. Statutory and Executive Order Reviews.
CWA Section 312(p)(4)(A)(iii)(II) directs EPA to develop a process for soliciting input from interested Governors to allow interested Governors to inform the development of the national standards of performance, including sharing information relevant to the process. On July 10 and 18, 2019, EPA and the USCG, with the support and assistance of the National
EPA developed the VIDA Governors' input process to outline EPA's intended approach to engage with the states and address their expressed interest for multiple enhanced engagement opportunities (possibly regionally-based), additional details regarding the direction of the proposed standards, and ultimately, more involvement in the development of the national standards of performance.
The Governors' input process included three regional, web-based forums for Governors and their representatives to inform EPA on the challenges and concerns associated with existing requirements under the VGP and to discuss potential considerations for key discharges of interest. The three regional, web-based forums were held on September 10 (Western States), September 12, (Great Lakes States) and September 19 (All States), 2019. During each forum subject-matter experts from EPA provided a brief background on the VIDA followed by organized discussions regarding the key discharges identified by the regional representatives prior to the forum. During the organized discussions, interested Governors' representatives commented on the presentation content, shared applicable scientific or technical information, and provided suggested options for EPA to consider during the development of the national standards of performance. In addition to the verbal input provided during the three regional, web-based forums, EPA accepted written comments. Copies of those written comments are included in the public docket for this proposed rule.
Additionally, EPA held two follow-up calls with representatives from the Great Lakes states on December 18, 2019. During each call, EPA addressed the comments that had been submitted by Great Lakes states, including comments on specific requirements of the VIDA, non-ballast water discharges, and best available technology as it relates to ballast water treatment systems. Representatives from Michigan, New York, Wisconsin, Pennsylvania, Illinois, Minnesota, and Ohio attended the calls.
EPA also held a follow-up call with representatives from the West Coast states on January 15, 2020. During the call, EPA addressed the comments that had been submitted by West Coast states, including comments on outreach and engagement, the best available technology analysis for ballast water treatment systems, and regulation of biofouling and in-water cleaning and capture devices. Representatives from the states of California, Hawaii, Oregon, and Washington, as well as representatives from the Pacific States Marine Fisheries Commission and the Western Governors Association attended the call.
In conjunction with the requirement to engage states in the development of the proposed standards, CWA Section 312(p)(4)(A)(iii)(III) provides for governors to formally object to a proposed national standard of performance. As detailed in CWA Section 312(p)(4)(A)(iii)(III), an interested Governor may submit to the Administrator a written, detailed objection to the proposed national standard of performance, describing the scientific, technical, and operational factors that form the basis of the objection. Before finalizing a national standard of performance for which there has been an objection from one or more interested Governors, the Administrator shall provide a written response to the objection detailing the scientific, technical, or operational factors that form the basis for that standard.
To be considered an objection by the Administrator under CWA Section 312(p)(4)(A)(iii)(III)(aa), an objection letter from the Governor must:
• Be submitted in writing to the Administrator;
• Be signed by the Governor;
• Clearly state the proposed standard that is the subject of the objection;
• Describe the scientific, technical, or operational factors that indicate why the proposed standard does not represent the best practicable control technology currently available (BPT), best conventional pollutant control technology (BCT), and/or best available technology economically achievable (BAT) to address the conventional pollutants, toxic pollutants, and nonconventional pollutants contained in the discharge; and
• Include the scientific, technical, or operational factors that indicate what BPT, BCT, and BAT is available that should be included in the proposed standard to address the conventional pollutants, toxic pollutants, and nonconventional pollutants contained in the discharge.
In addition, to facilitate EPA's due consideration of any objections within a timeframe that would enable EPA to meet its statutory deadline for this rulemaking, EPA requests that any Governor's objection be submitted within 60 days of the published Notice of Proposed Rulemaking.
Pursuant to CWA Section 312(p)(4)(A)(iii)(III)(bb), the Administrator's response would:
• Be provided in writing to each interested Governor prior to publication of the final rule;
• Be signed by the Administrator; and
• Include the scientific, technical, or operational factors that form the basis for the proposed standard.
3. Comments (Federalism Consultation and Governors' Consultation Comments)
During the engagement with states, EPA received pre-proposal comments from states, governors, and governors' representatives. EPA received comments submitted by representatives from Hawaii, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, Puerto Rico, U.S. Virgin Islands, Florida, California, Washington, Oregon, Wisconsin, Michigan, Minnesota, and the Western Governors Association. The pre-proposal comments primarily focused on ballast water, biofouling, and the state engagement process. These comments can be found in the public docket for this proposed rule.
The proposed rule includes definitions for several statutory, regulatory, and technical terms. These definitions apply solely for the purposes of the proposed rule and do not affect the definition of any similar terms used in any other context. By including these definitions, EPA has, where possible, relied on existing definitions from other laws, regulations, and the VGP to provide consistency with existing requirements. Many of the proposed definitions are taken either verbatim or with minor clarifying edits from the VIDA, the legislation upon which this proposed rule is based. This includes definitions for: ANS, ballast water, ballast water exchange, ballast water management system, Captain of the Port (COTP) Zone, commercial vessel—as that term is used for vessels operating within the Pacific Region, empty ballast tank, Great Lakes State, internal waters, live or living, marine pollution control device, organism, Pacific Region, port or
To provide additional clarity for certain proposed standards, if terms were not defined in the VIDA, the proposed rule includes definitions from other sections of the CWA, USCG regulations, the VGP, and other regulations. Additionally, EPA is proposing to include new definitions for federally-protected waters, fouling rating, marine growth prevention system, mid-ocean, and oil-to-sea interface. Terms not defined in the proposed rule have the meaning defined under the CWA and any applicable regulations.
The CWA established a two-step process for implementation of increasingly stringent limitations. The first step, to be accomplished by July 1, 1977, required compliance with standards based on “the application of the best practicable control technology currently available [BPT] as defined by the Administrator. . . .” 33 U.S.C. 1311(b)(1)(A). The second step, to be accomplished by July 1, 1987, required compliance with standards based on application of the “best available technology economically achievable [BAT] for such category or class. . . .” 33 U.S.C. 1311(b)(2)(A). The CWA, as amended in 1977, replaced the BAT standard with a new standard, “best conventional pollutant control technology [BCT],” but only for certain so-called “conventional pollutants” (
In addition, CWA Section 312(p)(4)(B) establishes minimum requirements for the national standards of performance such that, “the combination of any equipment or best management practice . . . shall not be less stringent than” the effluent limits and related requirements established in parts 2.1, 2.2, or 5 of the VGP. 33 U.S.C. 1322(p)(4)(B)(iii). Thus, while the statute directs EPA to set the national standards of performance at the level of BPT/BCT/BAT, depending on the pollutant, it also creates a presumption that those standards would provide protection at least equivalent to the VGP requirements absent one of the exceptions at CWA Section 312(p)(4)(D)(ii)(II) for situations where either new information becomes available that “would have justified the application of a less-stringent standard” or “if the Administrator determines that a material technical mistake or misinterpretation of law occurred when promulgating the existing standard.” Absent one of those exceptions, the statute directs that EPA “shall not revise a standard of performance . . . to be less stringent than an applicable existing requirement.” 33 U.S.C. 312(p)(4)(D)(ii)(I).
EPA endeavored to identify instances where the BPT/BCT/BAT level of control called for new, more stringent options for the national standards of performance; however, where EPA identified no such new information or options, EPA is continuing to rely on the BPT/BCT/BAT analysis that led to the development of the VGP requirements. This approach is consistent with EPA's obligations under CWA Section 312(p)(4) for the following reasons. The effluent limits that EPA adopted in the VGP were already the product of a BPT/BCT/BAT analysis described in the permit fact sheets for both the 2008 and 2013 iterations of the VGP and corresponding supporting materials. The text of CWA Section 312(p)(4)(D)(ii) prohibits EPA from “revis[ing] a standard of performance. . . to be less stringent than an applicable existing requirement.” There is a narrow exception for instances where EPA identifies absent new information or technical or legal error in the VGP analysis. Absent such exception, the VIDA prohibits EPA from identifying a less stringent option as BPT/BCT/BAT. Indeed, by identifying the VGP as the minimum requirements for the national standards of performance and then expressly identifying the circumstances under which EPA could select a different, less stringent standard (
While EPA is, for most of the discharges addressed in this
Where EPA research identified new alternatives or new options for marine pollution control devices, EPA evaluated those options as candidates for new BPT/BCT/BAT requirements. The CWA requires consideration of BPT for conventional, toxic, and nonconventional pollutants. CWA Section 304(a)(4) designates the following as conventional pollutants: Biochemical oxygen demand, total suspended solids, fecal coliform, pH, and any additional pollutants defined by the Administrator as conventional. The Administrator designated oil and grease as an additional conventional pollutant on July 30, 1979. 40 CFR 401.16. Toxic pollutants (
In determining BPT, under CWA Sections 301(b)(1)(A) and 304(b)(1)(B), and 40 CFR 125.3(d)(1), EPA evaluates several factors. EPA first considers the cost of application of technology in relation to the effluent reduction benefits. The Agency also considers the age of equipment and facilities, the processes employed, engineering aspects of various types of control technologies, process changes, non-water quality environmental impacts (including energy requirements), and such other factors as the Administrator deems appropriate. If, however, existing performance is uniformly inadequate within an industrial category, EPA may establish limitations based on higher levels of control if the Agency determines that the technology is available in another category or subcategory and can be practically applied to this industrial category.
The 1977 amendments to the CWA required EPA to identify effluent reduction levels for conventional pollutants associated with BCT for discharges from existing industrial point sources. 33 U.S.C. 1311(b)(2)(E); 1314(b)(4)(B); 40 CFR 125.3(d)(2). In addition to considering the other factors specified in CWA Section 304(b)(4)(B) to establish BCT requirements, EPA also considers a two-part “cost-reasonableness” test. EPA explained its methodology for the development of BCT requirements in 1986. See 51 FR 24974, July 9, 1986.
For toxic pollutants and nonconventional pollutants, EPA promulgates discharge standards based on BAT. 33 U.S.C. 1311(b)(2)(A); 1314(b)(2)(B); 40 CFR 125.3(d)(3). In establishing BAT, the technology must be technologically “available” and “economically achievable.” The factors considered in assessing BAT include the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, non-water quality environmental impacts, including energy requirements, and other such factors as the Administrator deems appropriate. EPA retains considerable discretion in assigning the weight accorded to these factors.
The proposed rule contains discharge standards that correspond to required levels of technology-based control (BPT, BCT, BAT) for discharges incidental to the normal operation of a vessel, as required by the CWA. As noted above, some discharge standards have been established by examining other existing laws and requirements (
Additionally, EPA is proposing that two of the VGP-named discharges do not require specific discharge requirements beyond the general discharge requirements in Subpart B. EPA acknowledges that discharges from motor gasoline and compensating systems and inert gas systems are indeed discharges incidental to the normal operation of a vessel; however, EPA determined that the requirements outlined in the general discharge standards section in Subpart B of the proposed rule are sufficient and at least as stringent as the VGP.
This section describes the proposed national standards of performance associated with the general discharge requirements proposed in 40 CFR part 139, subpart B. These proposed standards are designed to apply to all vessels and incidental discharges subject to the proposed rule to the extent the requirements are appropriate for each incidental discharge. These proposed standards are proactive and preventative in nature and are designed to minimize the introduction of pollutants into the waters of the United States and the waters of the contiguous zone. These proposed standards are based on EPA's analysis of available and relevant information, including available technical data, existing statutes and regulations, statistical industry information, and research studies included in the public docket for this proposed rule.
The first category of proposed national standards of performance would establish requirements associated with the general operation and maintenance vessel practices that are designed to eliminate or reduce the discharge of pollutants. EPA considers these proposed requirements to be consistent with the VGP requirements
The proposed general operation and management standard would also include provisions from the VGP (Parts 2.2.2 and 5.3.1.2) that are intended to minimize the discharges from vessels to nearshore waters by requiring, to the extent practicable, that vessels discharge while underway and as far from shore as practical.
The proposed general operation and management standard also would include requirements that limit the types and quantities of materials discharged. For one, EPA is clarifying that the addition of any materials to an incidental discharge, other than for treatment of the discharge, that is not incidental to the normal operation of the vessel, is prohibited as is using dilution to meet any effluent discharge standards. EPA is also proposing a requirement specifying that only the amount of a material (
The presence or use of toxic or hazardous materials may be necessary for the operation of vessels. For purposes of the proposed rule, the term “Toxic or Hazardous Materials” means any toxic pollutant identified in 40 CFR 401.15 or any hazardous material as defined in 49 CFR 171.8. EPA is proposing requirements for how toxic or hazardous materials are managed to minimize the potential for discharge of these materials. Toxic or hazardous material containers must be appropriately sealed, labeled, and secured, and located in an area of the vessel that minimizes exposure to ocean spray and precipitation consistent with vessel design. Materials that may not be considered toxic in small concentrations could pose an environmental threat if significant amounts are washed overboard, particularly in shallow or impaired waters. Wastes should be managed in accordance with any applicable local, state, and federal regulations, which are outside of the scope of this proposed rule. For example, the Resource Conservation and Recovery Act (RCRA) governs the generation, transportation, storage, and disposal of solid and hazardous wastes.
Therefore, the proposed rule would require that all vessel operators practice good environmental stewardship by minimizing any exposure of cargo or other onboard materials that may be inadvertently discharged by containerizing or covering materials with a tarp, and generally limiting any exposure of these materials to wind, rain, or spray. The proposed rule acknowledges that these requirements would apply unless the vessel operator reasonably determines this would interfere with essential vessel operations or safety of the vessel or doing so would violate any applicable regulations that establish specifications for safe transportation, handling, carriage, and storage of toxic or hazardous materials. Also, to avoid discharges and prevent emergency or other dangerous situations, the proposed standard would require that containers holding toxic or hazardous materials not be overfilled and incompatible materials not be mixed in containers.
Like the requirements related to toxic and hazardous materials, the proposed standard would also require control measures to prevent or minimize the overboard discharge of cargo, on-deck debris, garbage, and residue and would prohibit the jettisoning of cargo or toxic or hazardous materials. EPA proposal would also require vessel operators to clean out cargo residues (
The proposed rule would also require vessel operators to maintain their topside surface (
The last proposed general operation and maintenance requirement specifies that any equipment that is expected to release, drip, leak, or spill oil or oily mixtures, fuel, or other toxic or hazardous materials that may be discharged or drained or pumped to the bilge, must be maintained regularly to minimize the discharge of pollutants. As with other requirements in the proposed general operation and maintenance standard, EPA considers this requirement to be consistent with the bilgewater requirements in Part 2.2.2 of the VGP.
Vessel biofouling is the accumulation of aquatic organisms such as plants, animals, and micro-organisms on vessel equipment or systems submerged or exposed to the aquatic environment. Biofouling can be broadly separated into microfouling, which consists of microscopic organisms including bacteria and diatoms, and macrofouling, which consists of large, distinct multicellular organisms visible to the
EPA understands the statutory definition of “discharge incidental to the normal operation of a vessel” (incidental discharge) at 33 U.S.C.1322(a)(12) to include any discharge of biofouling organisms from vessel equipment and systems. Consistent with the VGP discharges of biofouling organisms from vessel equipment and systems while the vessel is immersed or exposed to the aquatic environment are incidental to the normal operation of a vessel. Such discharges during normal operation of the vessel include, but are not limited to, those from maintenance and cleaning activities of hulls, niche areas, and associated coatings. EPA included management requirements to minimize the discharge of biofouling organisms from vessel equipment and systems in both the VGP and the discharge regulations for the vessels of the Armed Forces. 33 U.S.C. 1322(n)). The VGP in Parts 2.2.23 and 4.1.3, respectively, required that vessel operators minimize the transport of attached living organisms and conduct annual inspections of the vessel hull, including niche areas, for fouling organisms. Part 4.1.4 of the VGP also required vessel operators to prepare drydock inspection reports noting that the vessel hull and niche areas had been inspected for attached living organisms and those organisms had been removed or neutralized and make these reports available to EPA or an authorized representative of EPA upon request. With one of the legislative purposes of the VIDA being to establish uniform national incidental discharge regulations that are as stringent as the VGP, except in those circumstances specified by the VIDA in CWA Section 312(p)(4)(D)(ii)(II), EPA is proposing to include requirements for the discharge of biofouling organisms from vessel equipment and systems in this rulemaking.
The proposed rule would require each vessel to develop and follow a biofouling management plan with a goal to prevent macrofouling, thereby minimizing the potential for the introduction and spread of ANS. A biofouling management plan that would be consistent with the VGP and fulfill the purpose of the proposed rule is one that provides a holistic strategy that considers the operational profile of the vessel, identifies the appropriate antifouling systems, and details the biofouling management practices for specific areas of the vessel. The details of the plan will be established by the Secretary, although the plan elements must prioritize procedures and strategies to prevent macrofouling.
While the VGP does not explicitly require a biofouling management plan, it requires the majority of the components of the proposed biofouling management plan individually, such as the consideration of vessel class, operations, and biocide release rates and components in the selection of antifouling systems, an annual inspection of the vessel hull and niche areas for assessment of biofouling organisms and condition of anti-fouling paint, a drydock inspection report noting that the vessel hull and niche areas have been inspected for biofouling organisms and those organisms have been removed or neutralized, reporting of cleaning schedules and methods, and appropriate disposal of wastes generated during cleaning operations. Additionally, according to the Clean Hull Act of 2009, every vessel engaging in one or more international voyages is required to carry an antifouling system certificate that contains the details of the antifouling system. Moreover, under the National Invasive Species Act, the USCG requires the individual in charge of any vessel equipped with ballast water tanks that operates in the waters of the United States to maintain a ballast water management plan that has been developed specifically for the vessel and that will allow those responsible for the plan's implementation to understand and follow the vessel's ballast water management strategy and comply with the requirements. The ballast water management plan must also include detailed biofouling maintenance and sediment removal procedures (33 CFR 151.2050(g)(3)). According to guidance issued by the USCG on these regulations, such procedures constitute a “Biofouling Management and Sediment Plan.” Under this guidance, the USCG advised that IMO Resolution Marine Environment Protection Committee (MEPC) 207(62) provides a basis for developing and implementing a vessel-specific biofouling management plan.
Developing individual biofouling management plans for vessels is important because vessels can vary widely in operational profile and, therefore, in the extent and type of biofouling. EPA recognizes, however, that vessels with similar operational profiles, such as vessels that cross the same waterbodies, travel at similar speeds, and share the same design, may also employ the same management measures, such as selecting the same types of antifouling systems, and applying the same inspection and cleaning schedules. EPA anticipates that fleet owners may develop a biofouling management plan template that can be readily adapted into a vessel-specific biofouling management plan.
The proposed rule aims to minimize discharges of oil, including oily mixtures. The proposed standard would require vessel operators to use control and response measures to minimize and contain spills and overflows during fueling, maintenance, and other vessel operations. Also, the proposed standard specifies that the discharge of used or spent oil no longer being used for its intended purpose would be prohibited, including any used or spent oil that may be added to an incidental discharge that is otherwise authorized to be discharged. Discharges of small amounts of oil, including oily mixtures, incidental to the normal operation of a vessel are permissible provided such discharges comply with the otherwise applicable existing legal requirements. For example, consistent with the CWA and as implemented by the 2013 VGP, this standard would prohibit the discharge of oil in such quantities as may be harmful, as defined in 40 CFR 110.3.
Section 139.3 of the proposed rule specifies that, except as expressly provided, nothing in this part would affect the applicability of any other provision of Federal law as specified in several statutory and regulatory citations. Two of those citations are to CWA Section 311 and to APPS. Those two laws address discharges of oil. Under CWA Section 311, any oil, including oily mixtures, other than those exempted in 40 CFR 110.5, may not be discharged in such quantities as “may be harmful,” which is defined to include those discharges that violate applicable water quality standards or “cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge
Additionally, the proposed rule would require measures during fueling, maintenance and other vessel operations to control and respond to spills and overflows, such as may occur from human error or improper equipment use. These proposed requirements reinforce existing requirements that require taking immediate and appropriate corrective actions if an oil spill is observed as a result of vessel operations. This includes maintaining appropriate spill containment and cleanup materials onboard and using such immediately in the event of any spill.
The proposed rule also includes requirements for oil-to-sea interfaces. Specifically, the proposed standard would require use of EALs for such oil-to-sea interfaces unless technically infeasible and sets out a series of mandatory BMPs for minimizing lubricant discharges during maintenance.
Oil-to-sea interfaces are seals or surfaces on ship-board equipment where the design is such that small quantities of oil can escape into the surrounding sea during normal vessel operations. For example, below-water seals frequently use lubricating oil mechanisms that maintain higher pressure than the surrounding sea to ensure that no seawater enters the system and compromises the unit's performance. During normal operation, small quantities of lubricant oil in those interfaces are released into surrounding waters. Above-deck equipment can also have oil-to-sea interfaces when portions of the machinery extend overboard, thereby allowing lubricant oil to be released directly into surrounding waters. Constituents of conventional hydraulic and lubricating oils vary by manufacturer, but may include copper, tin, aluminum, nickel, and lead. In addition, traditional mineral oils have a small biodegradation rate, a high potential for bioaccumulation and a measurable toxicity towards marine organisms. In the case of a controllable pitch propellers (CPP), up to 20 ounces of such oils could be released for every CPP blade that is replaced, with blade replacement occurring at drydock intervals or when the blade is damaged. When the blade replacement includes removal of the blade port cover (generally occurring infrequently, less than once per month), up to five gallons of oil could be discharged into surrounding waters unless the service is performed in drydock.
Additionally, many ocean-going ships operate with oil-lubricated stern tubes and use lubricating oils in much of the other machinery both on-deck and underwater. Oil leakage from stern tubes, once considered a part of normal “operational consumption” of oil, has become an issue of global concern and is now treated as oil pollution. A 2001 study commissioned by the European Commission DG Joint Research Centre concluded that routine unauthorized operational discharges of oil from ships into the Mediterranean Sea created more pollution than accidental spills (Pavlakis et al., 2001). Similarly, an analysis of data on oil consumption sourced from a lubricant supplier indicated that daily stern tube lubricant consumption rates for different vessels could range up to 20 liters per day (Etkin, 2010). This analysis estimated that operational discharges (including stern tube leakage) from vessels add between 36.9 million liters and 61 million liters of lubricating oil into marine port waters annually.
Vessels use lubricants in a wide variety of ship-board applications. Examples of lubricated equipment with oil-to-sea interfaces include:
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The EAL portion of the proposal provides that the EAL would need to meet three criteria; it must be “biodegradable,” “minimally-toxic,” and “not bioaccumulative” as defined in the proposed rule.
The proposed standard for oil-to-sea interfaces is slightly different from what was required for oil-to-sea interfaces in the VGP. EPA is proposing four changes. First, for clarity, EPA moved the EAL requirements to a general standard for oil management applicable to any specific discharge that may have an oil-to-sea interface rather than a specific discharge standard as was done in Part 2.2.9 of the VGP, and eliminated the specific discharge category, identified in Part 2.2.9 of the VGP as
Although certification programs to label lubricants as “environmentally acceptable lubricants” have existed for some time, the VGP was one of the first regulatory programs to require use of EALs. Today, more than sixteen manufacturers produce EALs for the global shipping community, giving vessel operators a wide array of choices for optimizing lubricant technical performance. Most major marine equipment manufacturers have approved EALs for use in their machinery, and new equipment is being introduced commercially such as air seals, composite bearings, electric motors, and synthetic line. The market for EALs continues to expand around the world, particularly in Europe where the use of such lubricants is promoted through a combination of tax breaks, purchasing subsidies, and national and international labeling programs.
In the analysis EPA completed for the VGP, the Agency found that product substitution of EALs for other lubricants in oil-to-sea applications (unless technically infeasible) together with the required BMPs for maintenance represents BAT. As the Agency described when it issued the VGP, use of EALs in lieu of conventional formulations for oil-to-sea interfaces can offer significantly reduced discharges of pollutants of concern (U.S. EPA, 2011).
As part of the BAT analysis for the VGP, EPA considered the processes employed and potential process changes that might be necessary for vessels to use EALs. As EPA explained at the time, EALs are readily available and their use is economically achievable for most applications (U.S. EPA, 2011). New vessels in particular can select equipment during design and construction that is compatible with EALs. Furthermore, vessel operators can design additional onboard storage capacity for EALs if they choose to use traditional mineral-based oil for engine lubrication (thereby needing two types of oils on-hand). The extra storage capacity needed would be minor. EPA, however, continues to believe that the use of EALs in all applications is not practicable or achievable, therefore this proposed rule retains the provision from the VGP oil-to-sea interface requirements that allows for a claim of “technically infeasible.”
The Agency considered several other approaches for regulating oil-to-sea interfaces in the proposed rule. For one, the most recent version of the European Ecolabel program has a modified definition of what constitutes an “environmentally acceptable lubricant” in that it now allows for “small quantities” (
The proposed rule does not include training and education requirements. CWA Section 312(p)(5)(A)(ii)(III) requires the USCG to promulgate training and educational requirements that are not less stringent than those contained in the VGP.
This section describes the proposed national standards of performance for discharges incidental to the normal operation of a regulated vessel. The proposed national standards of performance would apply to regulated vessels operating within the waters of the United States or the waters of the contiguous zone. The proposed rule would require that a discharge comprised of two or more regulated incidental discharges must meet the national standards of performance established for each of those commingled discharges.
Ballast water is any water, suspended matter, and other materials taken on-board a vessel to control or maintain trim, draught, stability, or stresses of the vessel, regardless of the means by which any such water or suspended matter is carried; or during the cleaning, maintenance, or other operation of a ballast tank or ballast management system of the vessel. The term “ballast water” does not include any substance that is added to the water that is directly related to the operation of a properly functioning ballast water management system. As defined in the proposed standards, a ballast tank is any tank or hold on a vessel used for carrying ballast water, regardless of whether the tank or hold was designed for that purpose. Fresh water, sea water, or ice carried onboard a vessel for food safety and product quality purposes is not
Ballast water may contain toxic and nonconventional pollutants such as rust inhibitors, epoxy coating materials, zinc or aluminum (from anodes), iron, nickel, copper, bronze, silver, and other material or sediment from inside the tanks, pipes, or other machinery. More importantly, ballast water may also contain marine and freshwater organisms that originate from where the water is collected. When ballast water is discharged, these organisms may establish new populations of ANS in the receiving waterbodies. Ballast water discharged from vessels has been, and continues to be, a significant environmental concern because it can introduce and spread ANS that threaten the diversity and abundance of native species, threaten the ecological stability of our Nation's waters, and threaten the commercial, agricultural, aquacultural, and recreational use of those waters.
Currently, ballast water discharges are regulated by multiple federal and state laws and regulations. The USCG regulates ballast water discharges under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA), and amendments thereto by the National Invasive Species Act (NISA) of 1996 (33 CFR part 151 subparts C and D). Starting in 2009, EPA regulated ballast water discharges under the NPDES program authorized under CWA Section 402; however, the VIDA requires that ballast water be regulated as an incidental discharge under CWA Section 312. The VIDA set as a minimum baseline the VGP/NPDES requirements previously developed under CWA Section 402. Additionally, several states (California, Michigan, Minnesota, Ohio, Oregon, Washington, and Wisconsin) previously used their certification authorities under CWA Section 401 or under stand-alone state authorities to impose additional, state-specific requirements that would apply to commercial vessels operating within their state waters. Such additional stand-alone State standards will no longer be permissible under the VIDA once EPA has established national standards and the USCG has promulgated implementing regulations that are final, effective, and enforceable. [33 U.S.C. 1322(p)(9)(A)(i)].
The proposed standards for ballast water reflect BAT and consider the previous requirements established in the 2013 VGP and 33 CFR part 151 subparts C and D, the BAT factors as specified in Section 304(b) of the Clean Water Act, as well as the new requirements established in the VIDA. The analysis described herein is based largely on information gathered and included in the public docket for this proposed rulemaking and includes information on the United States and international requirements surrounding ballast water discharges and the candidate control technologies (both best management practices and treatment technologies).
The proposed standards for ballast water apply to any vessel equipped with one or more ballast tanks that operates in the waters of the United States or waters of the contiguous zone, except as excluded by statute or regulation. Pursuant to the VIDA in CWA Section 312(p)(2)(B)(ii), the proposed rule would exclude the following five discharges from the CWA Section 312(p) ballast water standards.
The proposed rule would exclude discharges of ballast water from a vessel that continuously takes on and discharges ballast water in a flow-through system, if the Administrator determines that the system cannot materially contribute to the spread or introduction of an ANS from ballast water into waters of the United States or the contiguous zone, acknowledging that such a flow-through system may have additional areas on the hull (
The proposed rule would exclude discharges of ballast water from a vessel that is in the National Defense Reserve Fleet that is scheduled for disposal, if the vessel does not have an operable ballast water management system.
The existing USCG regulations (33 CFR 151.2025) allow vessels to use, as ballast water, water from a U.S. public water system (PWS), as defined in 40 CFR 141.2, that meets the requirements of the Safe Drinking Water Act (SDWA) at 40 CFR parts 141 and 143. In plain terms, this means finished, potable water as opposed to untreated water that is owned or operated by a PWS but not necessarily potable. Those USCG regulations specify that vessels using water from a PWS as ballast must maintain a record of which PWS they received the water from as well as a receipt, invoice, or other documentation from the PWS indicating that water came from that system. Furthermore, vessels must certify that the ballast tanks have either previously cleaned (including removing all residual sediments) and not subsequently introduced ambient water, or never introduced ambient water to those tanks and supply lines. The existing EPA requirements in the VGP similarly allow vessels to use water, not only from a U.S. public water system, but also from a Canadian drinking water system, as defined in Health Canada's Guidelines for Canadian Drinking Water Quality.
As specified by Congress in the VIDA, the proposed rule would exclude a vessel that discharges ballast water consisting solely of water taken onboard from a public or commercial source that, at the time the water is taken onboard, meets the applicable requirements of the Safe Drinking Water Act (SDWA) (42 U.S.C. 300f
The proposed rule would exclude discharges of ballast water from a vessel that carries all permanent ballast water in sealed tanks that are not subject to discharge. This exclusion is consistent with the previous requirements of the VGP and was specified by Congress under the VIDA.
This exclusion is different from the proposed ballast water exchange and saltwater flushing exemptions (described in VIII.B.1.ix.
The proposed rule would exclude discharges of ballast water from a vessel that only discharges ballast water into a reception facility (which could include another vessel for the purpose of storing or treating that ballast water). This exclusion would carry forward the existing VGP requirements and USCG regulation (33 CFR 151.2025) that allow discharges to a reception facility as an eligible ballast water management method. In such instances, once the ballast water is offloaded to a reception facility, that ballast water would be subject to regulation if discharged from that facility. Consistent with the rationale provided in the VGP fact sheet, EPA would continue to expect that all vessel piping and supporting infrastructure up to the last manifold or valve immediately before the reception facility manifold connection, or similar appurtenance, prevent untreated ballast water from being discharged. Any such discharge not meeting this requirement would be expected to meet the discharge standards in the proposed rule.
Crude oil tankers engaged in coastwise trade are excluded from the existing USCG regulation (33 CFR 151.2015(b)), consistent with Section 1101(c)(2)(L) of the National Invasive Species Act of 1996 (16 U.S.C. 4711). However, these same vessels are not excluded from meeting the ballast water requirements in the VGP and are not exempted under the VIDA. Therefore, pursuant to CWA Section 312(p)(4)(B)(iii), which requires this proposed rule to be at least as stringent than specified parts of the VGP, EPA proposes that crude oil tankers engaged in coastwise trade not be excluded from meeting the ballast water requirements set forth in the proposed rule. Such vessels are not inherently unable to perform ballast water exchanges and other ANS management practices that their currently non-exempt counterparts routinely carry out. EPA expects this proposal to impose no additional costs given that the requirements are presently in effect under the VGP.
Pursuant to CWA Section 312(p)(4)(B)(ii), EPA is proposing BMPs to control or abate ballast water discharges from all vessels equipped with ballast tanks. Following the requirement of the VIDA that EPA requirements must not be less stringent than the VGP unless a less stringent requirement is justified, EPA proposes to retain many of the BMPs in the VGP as they were designed to reduce the number of living organisms taken up and discharged in ballast water. At present, these BMPs are widely followed and implemented, thus technologically available and economically achievable. They have no unacceptable non-water quality environmental impacts (
As required under the VGP and USCG regulations, the proposed rule would require ballast tanks to be flushed regularly and cleaned thoroughly at every scheduled drydock to remove sediment and biofouling organisms. Residual sediment left in ballast tanks can negatively affect the ability of a vessel to meet discharge standards, even when a ballast water management system (BWMS) is properly operated and maintained. Such sediments may pose a risk of spreading ANS as organisms can survive in ballast sediment for prolonged periods of time in resting stages.
Consistent with EPA requirements under the VGP, the proposed rule would require that, when practicable and available, high sea suction sea chests must be used when at a port or where clearance to the bottom of the waterbody is less than 5 meters to the lower edge of the sea chest. As an example of when use of high sea suction may not be practicable is to avoid ice or algae, or other biofilm on the water surface. This BMP minimizes the potential for uptake of bottom-dwelling organisms, suspended solids, particulate organic carbon, and turbidity into the ballast tanks.
As previously required under the VGP, the proposed rule would require that when practicable, ballast water must be discharged in port using pumps rather than using gravity to drain tanks. This BMP has been shown to increase the mortality rate of living organisms in the ballast water during discharge, particularly zooplankton and other larger organisms, that would otherwise be discharged, given the physical action of the pumps (
The proposed rule would require that the sea chest screen(s) must be maintained and fully intact. This BMP is consistent with an EPA requirement under the VGP for existing bulk carriers operating exclusively in the Laurentian Great Lakes, also known as “Lakers,” but EPA proposes to expand it to all vessels with ballast tanks. These screens are designed to keep the largest living organisms, such as fish, as well as bacteria and viruses associated with these organisms, out of ballast tanks.
As described above, the proposed rule would require ballast tanks to be periodically flushed and cleaned to remove sediment and biofouling organisms; however, the proposed rule also would prohibit the discharge of residual sediment or water from ballast tank cleanings. Rather, these wastes should be disposed of in accordance with any applicable local, state, and federal regulations, which are outside of the scope of this proposed rule.
The proposed rule would require vessel owners and operators to avoid the discharge or uptake of ballast water in areas with coral reefs. This BMP is consistent with the VGP requirements. The VGP also included similar prohibitions for “marine sanctuaries, marine preserves, marine parks, . . . or other waters” listed in Appendix G. The proposed rule also would prohibit the discharge and uptake of ballast water in those areas but under a separate section of the proposed rule specific to activities in federally-protected waters as described in VIII.B.1.xiii.
Further, consistent with a USCG Marine Safety Information Bulletin (
EPA is seeking input for the development of the final rule regarding: (1) How best to define areas with coral reefs, and (2) public availability of navigational charts that can be used for identifying areas with coral reefs.
Like the previous requirements of the VGP and the USCG regulations, the proposed rule would require that any vessel with one or more ballast tanks develop and follow a vessel-specific ballast water management plan (BWMP) to minimize the potential for the introduction and spread of ANS. Such a BWMP should employ a holistic strategy that considers the operational profile of the vessel and the appropriate ballast water management practices and systems. Details of such a plan will be detailed in the corresponding implementation regulation to be promulgated by the Secretary as specified in section 139.1(e) of the proposed rule.
The proposed rule would not include one BMP that is currently included as a measure in both the VGP and USCG regulations at 33 CFR part 151 subparts C and D. These practices were adopted from the voluntary “Code of Best Practices for Ballast Water Management” of the Shipping Federation of Canada dated September 28, 2000, for vessels operating in the Great Lakes and St. Lawrence Seaway and codified in the VGP and USCG regulations (Shipping Federal of Canada, 2000).
EPA proposes not to continue the requirement that vessel operators must minimize or avoid uptake of ballast water in the following areas and situations:
• Areas known to have infestations or populations of harmful organisms and pathogens (
• Areas near sewage outfalls;
• Areas near dredging operations;
• Areas where tidal flushing is known to be poor or times when a tidal stream is known to be turbid;
• In darkness, when bottom-dwelling organisms may rise in the water column
• Where propellers may stir up the sediment; and
• Areas with pods of whales, convergence zones, and boundaries of major currents.
The proposed deletion is based on the finding that such measures are not practical to implement. These conditions are usually beyond the control of the vessel operator during the uptake and discharge of ballast water and thus it is not an available measure or practice to minimize or avoid uptake of ballast water in those areas and situations. 33 U.S.C. 1314(b)(2)(B). In lieu of these measures, the VIDA and the proposed rule contain several provisions that can help address some of the situations identified above. For example, in cases of a known outbreak of harmful algal blooms or viral hemorrhagic septicemia, a state can submit a petition to EPA or the USCG requesting EPA to issue an emergency order as provided for in CWA Section 312(p)(7)(A)(i). The emergency order provision in the VIDA acknowledges that when a water quality or invasive species issue is identified in a geographic area, EPA will identify appropriate BMPs to address that concern and impose specific requirements on the universe of vessels (and potentially others) as necessary. 33 U.S.C. 1322(p)(4)(E)(i).
Pursuant to CWA Section 312(p)(4)(B)(iii), the proposed rule would continue, as a numeric discharge standard, the numeric discharge limitations previously contained in the VGP, to include:
• For organisms greater than or equal to 50 micrometers in minimum dimension: Discharge must include less than 10 living organisms per cubic meter of ballast water.
• For organisms less than 50 micrometers and greater than or equal to 10 micrometers: Discharge must include less than 10 living organisms per milliliter (mL) of ballast water.
• Indicator microorganisms must not exceed:
○ Toxicogenic
○
○ Intestinal enterococci: A concentration of less than 100 cfu per 100 mL.
The proposed rule would define “living” using the CWA Section 312(p)(6)(D) clarification that the terms `live' and `living' shall not include an organism that has been rendered nonviable; or preclude the consideration of any method of measuring the concentration of organisms in ballast water that are capable of reproduction. However, it is important to recognize that as of the time of the proposed rule, the USCG has not identified any testing protocols, based on best available science, that are available for use to quantify nonviable organisms in ballast water. As such, compliance with the proposed discharge standard requires the use of test methods as detailed in the 2010 EPA
In addition, the proposed rule would continue the numeric discharge limitations as a numeric standard for four biocide parameters contained in the VGP, namely:
• For any BWMS using chlorine dioxide, the chlorine dioxide must not exceed 200 µg/L;
• For any BWMS using chlorine or ozone, the total residual oxidizers must not exceed 100 µg/L; and
• For any BWMS using peracetic acid, the peracetic acid must not exceed 500 µg/L and the hydrogen peroxide must not exceed 1,000 µg/L.
The standard for both the organisms and biocide parameters represents instantaneous maximum values not to be exceeded.
The proposed rule would continue the requirement contained in the VGP and USCG regulations at 33 CFR part 151 that, prior to the compliance date for the vessel to meet the discharge standard, ballast water exchange must be conducted as required in section 139.10(e) of the proposed rule, or the applicable regional requirements in sections 139.10(f) and 139.10(g) of the proposed rule, for any vessel subject to the ballast water discharge standard. As directed in the VIDA, the USCG will include requirements regarding compliance dates in its proposed regulation. 33 U.S.C. 1322(p)(5)(A)(iv).
The treatment technologies used for ballast water management representing BAT typically have three processes: Physical separation, disinfection, and neutralization. For physical separation, filtration is used most often as a pre-treatment by removing large organisms and particles (down to about 40-50 µm) from ballast water. Filtration improves the efficiency of subsequent disinfection processes by lowering the amount of chemicals or ultraviolet (UV) light needed. Filtration is also important for chemical disinfection because chemicals are relatively ineffective against organisms buried in sediment, especially invertebrates in resting stages (U.S. EPA, 2011a).
Disinfection is the effect of a chemical (
Electrochlorination (or electrolysis) systems are the second most common type of disinfection system used to treat ballast water. Electrochlorination creates hypochlorous acid, the active substance, by running an electric current through saltwater. The two primary requirements for treatment are a minimum salinity in the ambient water for the reaction to occur and a power source with direct current to run the electrolyzer. Two design options for electrochlorination systems are used in BWMS: In-line and side-stream treatment. Both systems undergo the same chemical reaction in an electrolyzer but vary in the concentrations of active substance created and in the volume of water dosed. Chemical addition (
Neutralization is the addition of a neutralizing agent that reacts with excess disinfection chemicals to eliminate their toxicity at discharge. Neutralization is an important step in chemical ballast water treatment to avoid excess chemicals, residual oxidizers, and disinfection by-products from entering and impairing the water at the point of discharge. As required in the 2013 VGP, the proposed rule includes a numeric standard for residual biocides which can be met through neutralization of treated ballast water.
As a preliminary matter, EPA notes that the establishment of a ballast water discharge standard for vessels (both domestic and international) using technology based criteria pursuant to the CWA poses challenges that are not present for stationary facilities for which EPA routinely establishes national discharge effluent limitations guidelines and standards based on BAT under the effluent limitation guidelines program. Importantly, it is impractical to conduct routine monitoring and analysis of the discharged ballast water from vessels to assess the ability of an installed BWMS onboard a ship to meet the numerical discharge standard for biological parameters. Rather, the biological efficacy of any BWMS is best demonstrated through a series of land-based and shipboard trials performed specific to each BWMS. Such a system, when selected, installed, and operated consistent with the manufacturer's specifications, as tested in those land-based and shipboard trials, and “type-approved” by an Administration (
The BWMS type-approval process was first developed as part of the IMO International Convention for the Control and Management of Ships' Ballast Water and Sediments (
• Organisms greater than or equal to 50 micrometers in minimum dimension—less than 10 viable organisms per cubic meter;
• Organisms less than 50 micrometers in minimum dimension and greater than or equal to 10 micrometers in minimum dimension—less than 10 viable organisms per milliliter;
• Indicator microbes:
○ Toxicogenic
○
○ Intestinal enterococci: Less than 100 cfu per 100 milliliters.
Regulation D-3 requires that any BWMS used to meet the standard be approved in accordance with specific IMO procedures, which had initially
While the United States is not party to the BWM Convention, the USCG developed domestic regulations with the intent to harmonize as closely as possible with the adopted BWM Convention, and established a discharge standard to be met using a BWMS that has been demonstrated as capable of meeting that standard through a USCG type-approval process. Criteria for the USCG type-approval are detailed in regulations at 46 CFR 162.060,
Type-approval is a critical step in verifying that a BWMS, when tested under standardized and relatively challenging conditions, is capable of consistently meeting the discharge standard. In the USCG type-approval testing process to determine biological efficacy, careful analyses are employed to (1) assure the source water for testing meets a threshold concentration of organisms to meaningfully challenge the BWMS, and (2) to quantify (ideally, sparse) concentrations of living organisms in treated and untreated (
The USCG type-approval process contrasts with the typical approach when EPA develops a numeric discharge effluent limitations guideline or standard under the effluent limitation guidelines program. There, EPA does not also specify the technology that must be used; rather, EPA identifies one or more technologies that have been demonstrated as being capable of meeting the discharge standard and the discharger selects one of those technologies. EPA typically establishes numeric effluent discharge limits based on a daily maximum and long-term (
The proposed ballast water discharge standard reflects EPA's BAT analysis that any USCG type-approved BWMS kill, render harmless, or remove living organisms from ballast water. These approved technologies have been demonstrated to achieve the existing requirements, and therefore are technologically available; for the reasons set out in the 2013 VGP Fact Sheet, they are also economically achievable and have no unacceptable non-water quality environmental impacts. The USCG type-approved its first BWMS in 2016 and to date, more than two dozen systems have received USCG type-approval (USCG, 2019).
When developing the VGP, EPA established the numeric ballast water effluent limits equivalent to the standard in the USCG regulations (33 CFR 151.1511 and 151.2030) and generally consistent with the BWM Convention. In establishing those effluent limits, EPA demonstrated it was critical to consider that BWM Convention. As described above, the United States is not a party to the BWM Convention; however, both the USCG (serving as the lead for the U.S. delegation) and EPA were actively involved in the standard setting discussions that led to the BWM Convention numeric discharge standard which entered into force in September 2017. Worldwide, it is estimated that approximately 34,000-70,000 commercial vessels are required to meet a ballast water discharge standard (IMO, 2016a; King and Hagan, 2013). Vessels from IMO member countries that have signed onto the BWM Convention are required to comply with both the BWM Convention and U.S. ballast water regulations when operating in U.S. waters. Similarly, U.S.-flagged vessels must meet the BWM Convention requirements when operating in any countries that are a signatory of that BWM Convention (
Based on the most recent five years of VGP annual reports submitted to EPA, over 75 percent of vessels discharging ballast water spent 25 percent or less of
In 2015, in
Establishing a discharge standard necessarily based on the most stringent of type-approved systems, as implied by the court's decision, is not required where mitigated by one of the factors relevant to BAT under CWA Section 304(b), therefore EPA does not believe the Second Circuit's decision must dictate the outcome of the agency's analysis. As discussed above, the BAT factors, particularly with respect to process considerations and engineering challenges, weigh in favor of maintaining the proposed ballast water standard at a level of consistency with the IMO standard. This is not to say that U.S. requirements must or should always be identical with the international standard. However, particularly for ballast water discharges, which are frequently significant in scale and expensive to control and which are intrinsic to the long-distance movement of vessels through international waters, EPA places value on being consistent with international obligations, when reasonably possible, in establishing BAT. Here, it is neither reasonable nor appropriate for the universe of vessels that would be regulated under the proposed ballast water discharge standard to not consider the international obligations for those vessels. The current world economic and trade system is predicated on timely and efficient maritime transportation, a significant proportion of which operates globally where trade takes it. Many of the vessels that are subject to the U.S. discharge standard spend most of their time outside of waters of the United States and waters of the contiguous zone, are operating under international ballast water obligations, which for the most part is the IMO standard established in the BWM Convention.
The record for this proposed rulemaking demonstrates that the proposed standard reflects BAT in that the current technology, USCG type-approved BWMS, are technologically available, safe, effective, reliable, and commercially available for shipboard installation. Also, the record indicates that their use is economically achievable. These technologies have been shown (
The proposed standard successfully accounts for various sources of variability inherent in addressing ANS in ballast water, including:
• Vessel size, operational profile (
• Ballast water management system (BWMS) performance in diverse environments; and
• Discharge monitoring (
This variability in addressing ANS dictates that different BWMS options are needed to account for differences in vessels such as different voyage patterns (in marine, brackish, or fresh waters), ballasting rates, architectural characteristics of the vessel such as space constraints or the need to locate the BWMS in a hazardous location onboard the vessel, and BWMS vendor support availability at locations around the world where that vessel intends to voyage. That is, a BWMS that is technically and operationally appropriate for one vessel may not be so appropriate for a different vessel, or even a similar vessel with a different operating profile. EPA analysis for the proposed rule is based on a similar determination that a wide range of available systems is necessary to accommodate technical and operational differences of varying vessel types, sizes, operating profiles, classes and flag states. The existing discharge standard has promoted through the type-approval process a range of types of BWMS disinfection technologies (including UV, electrochlorination, chemical addition, ozonation, and deoxygenation) that operate under a wide range of conditions allowing vessel operators to select a system that is most appropriate for that vessel, considering factors such as:
• The vessel's ballast tank(s), pump(s), and piping configuration;
• Temperature, salinity, and turbidity range of uptake water in areas where the vessel voyages;
• Duration of voyages and segments of each voyage that can affect the
• Ballast water capacity and required uptake and discharge pumping rates;
• Treatment system weight and space considerations, including accessibility and acceptability for use in hazardous spaces;
• Availability of service, support, replacement parts, supplies, etc. in areas where the vessel voyages;
• Compatibility of treatment with vessel construction (
• Power demand and energy consumption to pump ballast and operate treatment system; and
• Safety concerns (
Certain systems may be more advantageous for certain types of vessels. For example, the choice of many shipowners may be limited to UV systems as compared to chemical-based systems for those vessels that operate in ports around the world that ban or impose very low discharge limits on certain hazardous chemicals (
Variability is inherent to all well-operated treatment systems. When EPA establishes BAT, it must consider the variability at a well-operated treatment system to ensure that the standard is technologically available. EPA's approach to providing for some variability for well-operated systems in establishing BAT limits in effluent limitations guidelines rulemakings has been upheld by the courts several times. See for example,
The goal of the USCG type-approval process is to demonstrate that a BWMS can treat ballast water such that organism concentrations in discharged water are sufficiently low to meet the discharge standard (
Multiple sources of variability exist in type-approval sampling and analysis that also affects the results of type-approval testing. For example, stratification in ballast tanks, variability between tanks, flow rates, and contamination in uptake and discharge pipes are just a few of the considerations that may impact type-approval testing. It is also a challenge to capture and count appropriately sized organisms and to collect samples such that the sample collection process does not physically damage or kill these organisms (which should be counted as dead or nonviable only if such happens as a result of the BWMS, not because of poor sample collection and handling practices). Currently, the ETV Protocol is an EPA and USCG accepted method to evaluate the performance characteristics of commercial-ready BWMS regarding factors such as biological treatment performance, predictability/reliability, cost, environmental acceptability, and safety. Based on the ETV Protocol, the determination of the concentration of living organisms in treated water is done through manual microscope counts by trained microscopists.
The sources of uncertainty are systematic error, which is the loss of organisms during sampling and processing, which can be substantial, and random error, which is the difference in organism counts among analysts and among replicate subsamples, as well as variability across measurements of sample volumes. Counting organisms within a size class under a microscope is also challenging. For one, it is difficult to evaluate and count dormant or immotile organisms. Also, organisms can have a wide variety of shapes making it difficult to assign to a size class. For example, phytoplankton (organisms in the 10-50 micron size class) may be combined in chains or radially and may be either symmetrical or asymmetrical. Also, sizing generally is to be based on the minimum diameter of width of the cell except for things such as spikes, hair, or appendages. The Second Circuit recognized and upheld an EPA rule that considers the margin of error inherent in measuring aquatic organisms to allow for a standard that is not equivalent to also represent the same level of control. See for example,
In the case of ballast water, the operators experience even greater variability than would exist at a shoreside facility subject to a typical effluent guideline because, rather than the numeric discharge standard being a
The record demonstrates that the proposed standard reflects BAT in that the current technology, USCG type-approved BWMS, are technologically available, safe, effective, reliable, and commercially available for shipboard installation. Also, the record indicates that their use is economically achievable. These technologies have shown to substantially reduce the concentration of living organisms in ballast water discharges as necessary to meet the discharge standard, beyond the reduction achieved through mid-ocean exchange or unexchanged ballast water.
Specifically, the current standard of 10 organisms per the specified volume of ballast water for the two organism size classes reflects BAT and the current technology basis, use of a USCG type-approved BWMS, effectively removes ANS from ballast water. The Golden Bear Research Center at the California State University Maritime Academy, a university-government-industry partnership that provides shipboard testing of commercial ballast water treatment technologies, recently found BWMS that meet the proposed standard to be highly efficient, achieving several log reductions in pollutant loadings. In 2018, the Center compiled over 100 side-by-side comparisons of the concentrations of “living” organisms pumped into their test facility during both land-based and shipboard tests in relation to the final discharge concentration of living organisms after ballast treatment. The order of magnitude of reduction of organisms ranged from 1,000 to over 1,000,000 times; more than half of the comparisons fell in the range 100,000 to 1,000,000 times, or, using the terminology of food and drinking water management, a 5-log to 6-log reduction in targeted organisms (in the log10 scale). In fact, the actual reduction is likely larger because the data were conservatively calculated using fixed minimum detection levels in treated water even when no live organisms were observed at all. This evaluation demonstrates that type-approved BWMS that are designed to meet the proposed standard are highly efficient, achieving several log reductions in pollutant loadings. This level of organism reduction approaches and even exceeds the stringency required in drinking water testing and food management practices (Golden Bear, 2018).
EPA carefully considered the IMO BWMS test data in the 2011 SAB report that the Second Circuit Court referenced in its decision on the VGP as evidence of BWMS capability, but finds they lack the necessary quality for EPA to develop a revised, more stringent standard for two reasons.
Second, although the SAB panel determined that nine BWMS representing five BWMS categories had reliable data, they did not fully assess data quality. Instead, the SAB panel made a critical assumption that all protocols and methods were followed exactly as described, regardless of the presence or absence of Quality Assurance/Quality Control (QA/QC) procedures and documentation. Therefore, any use of the findings of the SAB panel must consider this lack of quality assessment. While the USCG does accept IMO data packages for its Alternate Management System (AMS) program, importantly, the requirements for the USCG BWMS type-approval testing require a different type of testing and a higher level of QA/QC than that required by the IMO until the recent entry into effect of the BWMS Code.
As part of the analysis for the proposed rule, EPA conducted an independent review of BWMS performance and data quality. EPA developed a rating system to provide an objective method for determining whether available performance data are of acceptable quality for development of the proposed standard. EPA found that most of the IMO data packages lacked information on test-specific Quality Management Plans, Quality Assurance Project Plans, and individual test results. Average data results were frequently submitted without specific sample dates or reporting of the individual results. While the quality of data improved over time, many reports did not contain adequate information on field replicate samples used for QA/QC measures or actual BWMS flow rates at the time of samples. Also, and importantly, the IMO G8 guidelines required five successful land-based tests as part of the type-approval process regardless of how many tests were conducted to achieve those five successful tests. Thus, for example, a
For these reasons, EPA found that foreign type-approval data, such as that used by the SAB in its analysis, is inadequate to assess whether any IMO-approved BWMS can meet the proposed discharge standard and it follows that such a testing regime would not be of sufficient scientific rigor to be appropriate for use in a BAT analysis. In contrast, EPA found that performance data developed consistent with the USCG type-approval procedures and requirements provided at 46 CFR 162.060 would be of sufficient quality for use in evaluating whether a particular BWMS meets the proposed standard.
To date, more than thirty BWMS have received USCG type-approval. The USCG treats all type-approval submissions as proprietary information; however, EPA was provided anonymous data for 9 manufacturers (11 different BWMS) from the Ballast Water Equipment Manufacturers Association (BEMA). EPA analyzed the data and determined the data submission requirements of the USCG type-approval regulations at 46 CFR 162.060 provides data of sufficient quality for EPA to evaluate system effectiveness for a BAT determination (Ballast Water Equipment Manufacturers Association, 2020).
EPA considers that receipt and review of additional type-approval packages would not support a more stringent standard because these test results are within the same order of magnitude as the current standard and fall within the margin of error expected due to the great variability associated with the characteristics of ballast water and challenges associated with monitoring, analyzing, and enumerating organisms in the different size classes. As noted above, in addressing EPA's effluent limitation guidelines for cooling water intake systems, the Second Circuit Court of Appeals explained that it is reasonable for a performance standard to reflect the margin of error that is inherent when measuring organisms in a natural environment. See
In VIII.B.1.vi.A.3.i.,
The test results identified by the court indicating greater removal of organisms are not an indication that these systems can achieve a more stringent standard in all conditions. Rather, the test results provide a variety of situations where BWMS manufacturers are testing their systems in a variety of environmental conditions and locations around the world, all with the goal of obtaining USCG type approval by demonstrating that the BWMS can consistently meet, not necessarily exceed, the IMO discharge standard. [46 CFR 162.060-10(f)(2)].
To further demonstrate the true performance of a BWMS and to highlight the change in treatment effectiveness associated with meeting a more stringent discharge standard, EPA evaluated data provided directly to EPA by the BWMS manufacturer, Alfa Laval, that had been included as part of its type-approval package submitted to the USCG in September 2016 for its PureBallast 3 filtration + UV BWMS, which received USCG type-approval in December 2016. The results of EPA analysis are presented in Table 1. Using the court's rationale, the Alpha Laval PureBallast 3 system type-approved by the USCG demonstrates 3.7 times more effective treatment for large organisms (
Achieving a numeric discharge standard 10× and 100× more stringent than the proposed standard would represent an insignificant improvement in treatment system effectiveness for both large and medium organisms. For achieving a standard 10× more stringent, the difference is that between 99.92 and 99.99 percent efficiency for large organisms and 97.82 and 99.78 percent for medium organisms. For achieving a
Consideration of a standard that is less than 1 organism per volume of ballast water for the two organism size classes (
As has been considered in the past by both EPA and the USCG, EPA evaluated whether a discharge standard 100× or 1,000× more stringent than the proposed standard is appropriate. As noted by the SAB, “methods (and associated detection limits) prevent testing of BWTS to any standard more stringent than the IMO D-2 standard and make it impracticable for verifying a standard 100× or 1,000× more stringent.” Further, the SAB concluded that no current BWMS can meet a standard beyond 10× more stringent than the current standard (
EPA evaluated the available USCG type-approval data and found that these data do not show that performance better than the proposed discharge standard is achievable in all vessel types and situations. It is important to consider that a USCG BWMS type-approval certification is based on its system components at the time of certification and no changes or optimizations to the technology can be made by the vessel operator. For example, the vessel operator cannot change the filter or chemical concentration to improve the system's performance without the BWMS manufacturer notifying the USCG, in accordance with 46 CFR 162.060-16.
If a more stringent standard were to be established, it would require confidence in the ability to monitor at that lower concentration to demonstrate both treatment effectiveness of available technology and compliance with the discharge standard. However, monitoring low concentrations of living organisms in ballast water (or direct organism monitoring), by mass or any other measure, at lower levels than necessary for demonstrating compliance with the existing numeric discharge standard is impractical because of challenges with collecting and analyzing ballast water to detect and quantify organisms at those levels. In lieu of direct organism monitoring, in the VGP, EPA developed a three-component self-monitoring program as a reliable indicator of whether BWMS are effectively controlling the discharge of living organisms: (1) Biological monitoring to indirectly assess the effectiveness of reducing living organisms in the discharge, (2) functionality monitoring of the system to assure it is operating as designed, and (3) residual biocide/derivative monitoring for those systems using active substances. Presently, there are no means to routinely sample and analyze in real-time ballast water for compliance with the discharge standard for the two largest size classes of organisms, and while various tools are under development, there is no widely-accepted methodology to formally evaluate and choose tools for use in regulatory enforcement applications (Drake et al., 2014).
There is no basis either in science or the CWA's BAT factors to assume a BWMS can achieve a higher level of treatment than is supported by reliable data. Therefore, regulators have had to rely on indirect indicators of compliance to ensure that any BWMS continues to perform as demonstrated during land- and ship-based type-approval testing. “Functionality monitoring,” as required by the VGP, is an indirect indicator of compliance entailing the use of a variety of meters, electronic sensors and analyzers that measure and transmit to control systems operational data such as flow rate, pressure drops across filters, disinfectant concentrations and energy intensity. If these indirect measurements fall within the BWMS design operating ranges, then it is reasonable to assume the BWMS is reducing living organisms as required since the USCG type-approved the BWMS as being able to achieve the living organism discharge standards when operating within the design specifications. The lack of sampling and analysis methods available to monitor ballast water discharges for the two largest organism size classes at lower concentrations than the current
Demonstration of a higher level of treatment effectiveness reasonably would require testing of a different parameter for which there is the ability to monitor, which is likely some measure of organisms other than the two organism sizes classes (and bacteria) upon which the current standard is based. This would require a new type-approval process, which would result in significant delays in testing, “approving,” and manufacturing an adequate supply of systems available for installation aboard the global shipping fleet. Conversely, this would require a comprehensive evaluation and selection of more appropriate parameters than the two organism size classes, undertaking a comprehensive monitoring program to sample and analyze ballast water for those new parameters to evaluate BAT for those parameters. Without such an evaluation, EPA does not have the necessary data to justify treatment system effectiveness associated with the required level of pollutant control.
In summary, EPA and the USCG are committed to protecting U.S. waters from invasive species and support a strong national and international solution that does not disrupt the continuous flow of maritime commerce that drives the U.S. and global economies. The proposed rule would implement the VIDA requirement for ballast water to establish the standard according to BAT by continuing the current EPA and USCG standard given that the standard and the USCG type-approval process is effective and promotes the development of highly efficient technology to control ANS in ballast water. In the last three years, the USCG has type-approved more than thirty ballast water management systems (BWMS) for vessels that would meet the proposed discharge standard, with at least half as many more under review. These systems have provided a variety of treatment options for a breadth of national and international vessels. The current standard continues to be appropriate to significantly reduce invasive species transport given the complexity of the universe of vessels that would be subject to the proposed rule and the great variation of vessel processes and engineering constraints of ballast water management. The current standard is driving development of type-approved BWMS that are highly efficient. Establishing a more stringent standard at this time would not result in a meaningful improvement in system performance or discharge reduction.
The challenge in ballast water management that will reduce ANS discharges is not adopting a lower or more stringent standard, but instead focusing on the vessel installation of available and highly efficient BWMS; proper operation and maintenance of those systems to achieve the treatment efficacy demonstrated as part of the USCG type-approval testing; and the evolution of vessel ballasting practices to minimize volumes of ballast water requiring management. Only very recently has EPA begun to see broad compliance of the vessel community with installation, operation, and maintenance of the range of the USCG type-approved BWMS. To date, about one-third of vessels operating pursuant to the requirements of the VGP have installed BWMS (U.S. EPA, 2019). In 2017, the American Bureau of Shipping (ABS) conducted a global survey of 27 shipowners with 220 vessels including bulk carriers, tankers, containerships and gas carriers. In 2018, ABS repeated the survey with more than double the participants of 60 shipowners and operators worldwide covering 483 BWMS installations for seven different BWMS treatment technologies. In 2018, ABS found that 35 percent of BWMS installations were reported as operating regularly, and the remaining systems were either inoperable or considered problematic. Surprisingly, the survey findings show that the number of problematic BWMS in operation increased from 29 percent in 2017 to 59 percent in 2018. It appears that many vessel operators are trying to get their BWMS fully functional and into operation before the USCG or IMO compliance deadlines (ABS, 2019) and in starting up and operating installed systems, often for the first time after a period of nonuse since installation, are finding unexpected problems. No particular system is identified as being more or less likely to meet the discharge standard.
Opportunities for advancement in ballast water treatment and technology may require EPA to assist the vessel community in tackling installation and operational challenges with the existing BWMS and future type-approved systems and best management practices. Significant limitations remain in ANS monitoring such that setting a different numeric discharge standard for ANS is unlikely to result in meaningful technological advancement. The VIDA provides EPA and the USCG with this opportunity to streamline the ballast water regulations which should aid with the operation of demonstrated, but not yet fully optimized, systems and with future systems as they continue to come online.
The VIDA expressly excludes from the discharge standards “ballast water from a vessel . . . that only discharges water into a reception facility.” 33 U.S.C. 1322(p)(2)(B)(ii)(V). As such, CWA Section 312(p) does not authorize EPA to regulate the transfer of ballast water from ships to a reception facility as part of the proposed rulemaking. Nonetheless, for the purposes of this proposed rule and to acknowledge the 2015 Second Circuit Court decision on the VGP, EPA reviewed and considered whether zero discharge or a more stringent discharge standard based on the use of a reception facility may be BAT for ballast water discharged from regulated vessels.
The Second Circuit Court decision stated that EPA failed to give fair and thorough consideration to reception facilities in setting the discharge standards in the VGP. The Second Circuit stated that a technology is “available” in the following instance: “(1) the transfer technology must be available within the first industry: (2) the transfer technology must be transferable to the second industry; and (3) it must be reasonably predicable that the technology, if used in the second industry, will be capable of removing the increment required by the effluent standards.”
In developing this proposed rule, EPA considered whether discharges of ballast water to a reception facility could result
Despite considering the potential advantages identified in recent years for the use of ballast water reception facilities (
Another critical challenge is retrofitting vessels with the appropriate ballast water systems (including pipes and pumps) required to move ballast water up from tanks and off the ship at a rate fast enough that the vessel can perform normal cargo operations without significant and costly delays. To date, no U.S. or international ship-to-shore connection standard exists for non-oily ballast water discharges. As such, vessels are not fitted with, nor would an appropriate reception facility have, a standard size, configuration, strength, etc. on which to base a design to ensure vessels would be able to connect and discharge ballast water to such a facility. In a similar situation, the IMO established connection requirements under Regulation 13 of Annex I to MARPOL for oil mixtures, which have been codified in USCG regulations at 33 CFR 155.430, and for which, a similar set of requirements would be needed for non-oily ballast water discharges. Without such an international standard for ballast water connections, implementation of such a requirement would be impractical. Additionally, the configurations of many ports are such that a vessel may berth at any number of locations within the port, necessitating that such reception connection equipment is available at each of these berths and capable of being transferred from that point to the reception facility. As an example of the challenge associated with such a configuration, the Port of Duluth is a single port with 60 docks spanning 49 miles of coastline (Lake Carriers' Association, 2016a).
Also, reception facilities may not provide a complete solution to ballast water treatment. For example, some vessels may need to discharge part of their ballast water before arriving in port so they can conduct cargo operations as soon as possible following arrival at the dock; some vessels need to discharge ballast water to reduce draft before arriving at berth; and lightering vessels may need to discharge ballast as they load cargo at designated anchorages or lightering zones. In each of these instances, some type of reception facility would be required, further complicating the necessary infrastructure to handle discharges from such disparate locations.
The only instance of a ballast water reception facility being used in the United States is in Alaska, specifically to remove oil from ballast water discharges from single hull tanker vessels. Use of facilities such as this, with modifications made specifically to remove living organisms (
EPA evaluated several studies of reception facilities in the United States, including ports in the Great Lakes, Baltimore, MD, California, and internationally, including ports in the Caspian Sea, Netherlands, Brazil, and Croatia. California has led the effort nationally to explore the possibility of reception facilities. In 2013, the California State Lands Commission funded a study to assess ballast water reception facility approaches in California. The report from that study (Glosten Associates, 2018), is currently the most comprehensive review of reception facility options in California. The authors concluded that a network of treatment barges would be the best reception facility approach when compared to land-based treatment to enable vessels to meet California's interim Performance Standards. According to the Study, such an approach would not come without impacts or costs. A barge-based network could lead to increased air emissions
Another complication of a reception facility approach is that vessel operators in most cases are not the entities that would build and operate such facilities. As such, these reception facilities would likely only be created where an organization, such as a port authority or terminal operator, identifies a financial opportunity from constructing and operating such a facility. It would be highly speculative that any organization would choose to do so. The scale and cost of operating reception facilities at the hundreds of ports nationwide that handle ballast water from tens of thousands of vessels would require billions of dollars and weighs against finding such technology to be available or economically achievable. It also ignores the thousand plus ports worldwide directly or indirectly linked to many of these same vessels that reasonably would want to be able to discharge ballast to a reception facility at any port visited rather than having to also install and operate a BWMS in those areas where a reception facility is not available. As cited in the Second Circuit decision,
Based on the record before it, EPA has determined that reception facilities are not technologically available or economically achievable at this time. While EPA understands that the use of reception facilities, if available, may be a valid and effective component of ballast water management in certain situations, the challenges in creating such a comprehensive infrastructure nation-wide (and world-wide) make reception facilities simply not technologically available as defined in the CWA. It also appears to have unacceptable non-water quality environmental impacts in some areas. It is logistically more complex than shipboard treatment for the shipping industry to implement and requires vessel as well as port modifications to be accommodated. It is unlikely that ballast water reception facilities could become a national “one size fits all” option for ballast water management, principally because it cannot accommodate widely varying trade routes without the availability of reception facilities in most ports. Port-specific conditions may also preclude any technically available and/or economically achievable reception facility alternatives. Integration with port and vessel operations would require careful planning, design, and operation. If in the future reception facilities become available and economically achievable and have acceptable non-water quality environmental impacts in certain locations for certain specialized sectors of the commercial vessel industry EPA would revisit the standards, but, for now, such an option has not been demonstrated to reflect BAT.
After careful consideration of all the relevant factors, EPA proposes to subcategorize and not require any vessel operating exclusively on the Great Lakes, regardless of when they were built, to meet the numeric discharge standard and instead to continue to require that these vessels implement best management practices. As required by the VIDA, EPA assessed the best available technology that is economically achievable and determined that the challenges analyzed in the VGP remain true today. This proposed exemption is based on a set of unique circumstances that make ballast water management especially challenging for these vessels. The challenges include issues related to the operational profile and design of these vessels and issues related to the unique nature of the waters of the Great Lakes. A fuller discussion of EPA's analysis appears below.
The VGP exempted vessels that operate exclusively on the Laurentian Great Lakes, commonly referred to as “Lakers,” and built before 2009 from meeting the numeric discharge standard. As defined by the VGP, this
The proposed rule expands the VGP exemption to any vessel operating exclusively on the Great Lakes, regardless of build date, because these vessels share the same challenges in operating BWMS under the environmental conditions of the Great Lakes. The exemption applies to vessels on the Great Lakes that are 3,000 GT ITC (1,600 (GRT) if GT ITC is not assigned) and above, as smaller vessels are exempt under 139.10(d)(2)(i) of the proposed rule as described in VIII.B.1.vii.A.
There are approximately 150 U.S.- and Canadian-flagged Lakers, with approximately 20 of these (mostly Canadian) constructed in 2009 or later (Marinelog, 2016; Lake Carriers' Association, 2016). The U.S. Lakers generally are larger than Canadian Lakers, with many of these vessels being too large to transit through the Welland Canal and the locks on the St. Lawrence Seaway, thus confining their operations to the four upper Great Lakes. Of the approximately 60 U.S.-flagged Lakers operating on the Great Lakes, only about half are small enough to fit through the Welland Canal; although, from 2015 through 2017, U.S. Lakers operated only 28 voyages east of the Welland Canal (Lake Carriers' Association, 2018). Common U.S. Laker routes are ore cargo runs from Lake Superior to U.S. mills in Indiana, Michigan, and Ohio. In contrast, 81 of the 84 Canadian Lakers are small enough to pass through the Welland Canal and locks on the St. Lawrence Seaway (Lake Carriers' Association, 2016). The U.S.-flagged Lakers that are small enough to transit the locks on the St. Lawrence Seaway are not designed to operate in brackish water or saltwater and therefore do not venture east of Quebec City on the St. Lawrence Seaway. Most Canadian Lakers, on the other hand, commonly operate in brackish water or saltwater and their hulls and ballast tanks have corrosion protection that allow them to transit through the locks on the St. Lawrence Seaway to Canadian coastal ports and for some of these vessels, even to overseas ports. However, U.S. and Canadian vessels that operate exclusively on the Great Lakes share several similar constraints with selection of BWMS because of the short voyages, low salinity, very cold water, high dissolved organic carbon content, and low UV transmittance associated with operation solely within the Great Lakes. Similar vessel design issues are present for both the existing U.S. and Canadian fleets with respect to vessel design and operation.
The Second Circuit Court decision held that EPA acted arbitrarily and capriciously when it exempted Lakers built before 2009 (“pre-2009 Lakers”) from the numeric technology-based effluent limitations of the VGP.
To address all of the above issues, EPA assessed the availability of ballast water treatment technology by evaluating the operational and technical considerations for installation and operation of a USCG type-approved BWMS on Great Lakes vessels and alternative approaches that could be used to develop a specific discharge standard for Great Lakes vessels. Specifically, EPA assessed:
• The compatibility of type-approved BWMS to meet the current discharge standard under the environmental conditions of the Great Lakes;
• the operational and technical challenges of the installation of type-approved BWMS given the unique structure of Great Lakes vessels;
• the potential use of current type-approved BWMS on Great Lakes vessels to meet an alternative standard; and
• the availability of other treatment technologies for Great Lakes vessels.
Overall, it was found that ballast water treatment technologies are not available for Great Lakes vessels at this time because of the uniqueness of these vessels and the Great Lakes ecosystem. EPA evaluated the technical reasons why current type-approved BWMS are not compatible with the environmental conditions of the Great Lakes for each category of treatment system. The environmental conditions evaluated include the water's unique “freshness,” as opposed to salinity, the temperature of the water, and the turbidity of the ports. The operational and technical conditions evaluated include the length of voyages and its effect on the BWMS holding times required to achieve the discharge standard and the absence of coated ballast tanks in the fleet. Table 2 summarizes information on the critical limitations that each major disinfection
The environmental conditions of Great Lakes waters present unique challenges for use of any of the more than 20 USCG type-approved BWMS on Great Lakes vessels. At this time, none of these systems can meet the proposed numeric discharge standard given these conditions. Cold ambient water temperatures on the Great Lakes during the earlier and later portions of the shipping season are below the testing parameters of USCG BWMS type-approval testing and, therefore, BWMS have not been demonstrated to work sufficiently under such conditions to meet the numeric discharge standard. For example, winter icing conditions of the exceptionally fresh waters of the Great Lakes impact the ability to operate a BWMS, such as from ice-plugged BWMS filters. Because of winter ice on the Lakes, the navigation season is not usually year-round. The Soo Locks and Welland Canal close from mid-January to late March, when most vessels are laid up for maintenance. However, cold temperature and icing conditions can persist into the Spring. Water temperatures in the Great Lakes during the shipping season can be as low as 0 °C. Lake Erie is below 5 °C for five months a year, lakes Michigan and Huron for almost half the year, and on Lake Superior 5 °C might not be reached until June and be back below by November. Because of the pressure drop across filters, freezing can occur at temperatures above 0 °C. Several USCG BWMS are not approved for operation at a water temperature of less than 5 °C (Monroy et al., 2017; USCG, 2013).
In addition to cold temperatures, the fresh water of the Great Lakes contains extremely low salinity. USCG type-approval testing for freshwater allows a salinity as low as 0.9 practical salinity units (psu), but Great Lakes water, especially Lake Superior, has a much lower salinity of approximately 0.063 ppt. Several USCG type-approved BWMS require a higher salinity than is found in the Great Lakes. For example, electrochlorination systems were designed to use marine water to provide a chloride source to generate chlorine. The freshwater of the Great Lakes does not provide such a source of saline water, requiring a Laker using such a system to bunker saltwater in an unused holding tank or ballast tank and then use this saltwater to generate chlorine for disinfection while ballasting/deballasting within the Great Lakes. EPA analysis demonstrates that this technology is not practicable and is presently unavailable.
Turbidity, excessive levels of tannins, and filamentous bacteria in some areas of the Great Lakes can inhibit the ability of USCG type-approved BWMS to meet the numeric discharge standard. Several river ports in the Great Lakes contain highly turbid water where ballast water uptake occurs. Typical levels of total suspended solids (TSS) found in U.S. Great Lakes port waters range from 400 mg/L in the Rouge River in Detroit, MI, to 1,000 mg/L in the Cuyahoga River in Cleveland, OH. These levels are much higher than those required for USCG type-approval testing. Similarly, areas of the Great Lakes contain excessive levels of tannins that present a challenge to remove with conventional BWMS filters. Turbidity and excessive levels of tannins in some Great Lakes harbors may significantly reduce filter efficiency and UV light transmittance, creating a situation where both USCG and IMO type-approved filtration and UV BWMS cannot achieve the numeric discharge standard. While these circumstances can also occur in coastal ports, it is expected that many seagoing vessels could use operational practices not available to vessels operating on the
Other ballast water treatment technologies are under development, such as membrane filtration, magnetic separation with filtration, and pasteurization. However, no such systems to-date have been demonstrated as effective ballast water treatment to the satisfaction of the USCG for type-approval. Even if these technologies did gain USCG type-approval, there are challenges in applying their use on the Great Lakes. For example, a pasteurization system is designed for large long-haul vessels and requires multiple voyage days to reach pasteurization temperatures and as such would be limited in its use on the Great Lakes because of the many short voyages for vessels in the Great Lakes. As for filtration and magnetic separation with filtration, freshwater organisms must respond to flocculating agents like that of marine organisms to be effectively removed by these technologies. Unfortunately, to date, this ability has not been shown to exist (ClearBallast, 2012; Bawat, 2016; Voutchkov, 2013).
There are numerous, costly technical challenges to implementing BWMS on Great Lakes vessels. If USCG type-approved systems were installed on Great Lakes vessels to meet the discharge standard, some environmental benefit would be provided from the installation and operation of these type-approved systems; however, disproportionate costs would be incurred by this vessel community due to these technical challenges and the discharge standard would not be met given the known environmental challenges. For example, for some U.S. Lakers, particularly those bulk carriers that are more than 50 years old that have been uniquely constructed and converted over the decades, the cost of achieving the standard would be similar to or maybe even exceed the cost of vessel replacement. EPA evaluated the technical considerations relevant to the installation and operation of BWMS on Great Lakes vessels including vessel size, ballasting volumes and flow rates, ballast pump and piping configurations, space considerations, electrical requirements and corrosion issues. It is important to point out there are significant differences in the construction, size, propulsion configurations, electrical systems and capabilities, cargo off-loading equipment, ballast water movement, and other design aspects between individual vessels. These differences require a vessel-specific analysis to determine the technological availability and optimal method for installing and operating a BWMS. In order to consider these differences, EPA grouped the U.S. Lakers into subcategories based on their characteristics (Table 3).
The capacity of the commercially available, type-approved BWMS selected for a Great Lakes vessel must be compatible with the ballast needs of the vessels, particularly the ballasting rate of the ballast pumps. Particularly for Lakers, high ballasting capacities and flow rates limit the options for selection of some commercially available BWMS. The maximum capacity of commercially available filtration and UV BWMS is 6,000 m
Great Lakes vessels are designed to maximize cargo capacity and, therefore, have little to no space available in the engine room or around the self-unloading equipment for a BWMS. Space could be created from existing ballast tanks or cargo holds, although this directly impacts the vessel's cargo hauling capacity and therefore economic viability. Again, EPA analysis included the cost and lost revenue implications of lost cargo space or hauling capacity. Converting ballast tanks to accommodate a BWMS may likely also impact vessel stability and requires a detailed vessel-specific analysis by a marine engineer, naval architect, or similar expert to assess viability of such installation and operation.
Electrical capacity on Great Lakes vessels has been sized to accommodate the loading and unloading equipment
The U.S. Laker fleet has another significant issue with respect to selection of a BWMS: Currently all vessels have uncoated steel ballast tanks. In this manner, U.S. Lakers differ from the Canadian Laker fleet and the oceangoing vessels. This design works for the fleet because the waters of the Great Lakes is so fresh that corrosion is not a concern as these vessels do not operate in brackish or ocean saline waters, where such coating is necessary. Any BWMS that generates chlorine for disinfection by electrochlorination or that doses corrosive treatment chemicals into the ballast water is commercially available in the capacities needed for Lakers and have a lower electrical demand. However, these systems would significantly increase the corrosion rates in the uncoated ballast tanks of existing U.S. Lakers. Coating ballast tanks on existing U.S. Lakers can be done; however, the costs to do so are prohibitively high, and the vessel would require dry-docking for at least a year, a significant lost revenue period, to clean, grind, weld and coat the inside of ballast tanks.
With regards to operational considerations, many inter-lake voyages are shorter than 72 hours (and even as short as 2 hours) and, in these cases, would not provide the required residence time for BWMS technologies that require extended holding times to be effective such as chemical addition, deoxygenation, or UV for many of the USCG type-approved UV-based BWMS U.S. Army Corps of Engineers, 2017). Increasing voyage times by slow steaming to meet minimum hold times for certain BWMS may be possible, but the impact to vessel operations would need to be accounted for in assessing the cost of operation of such systems, including impacts to shippers. In fact, the entire supply chain would be impacted by extra voyage times.
Testing of various BWMS and their components using ambient Great Lakes water has been conducted at the Great Ships Initiative (GSI)
During August through October 2009, the GSI conducted land-based type-approval testing in accordance with IMO G8 guidelines on the Siemens SiCURE
During September and October 2014, GSI conducted land-based testing of three prototype versions of the chlorine addition-based JFE BallastAce® BWMS to evaluate not only the biological and chemical performance against the USCG ballast water discharge standard, but also the total residual oxidant (TRO) of the chemical system (Great Ships Initiative, 2015). Only the JFE BallastAce BWMS operated using the TG BallastCleaner® at the higher target TRO concentration of approximately 20 mg/L was able to achieve the USCG discharge standard for living organisms although these concentrations did result in elevated levels of disinfection by-products. This system type can also corrode the uncoated tanks of U.S. Lakers.
Using filtration and UV BWMS can avoid the corrosion concerns. However, testing of the filtration and UV Alfa Laval PureBallast® Version 3 BWMS in Duluth-Superior Harbor in 2010 using ambient Great Lakes water failed to achieve the USCG and IMO numeric discharge standards in the two regulated size classes, even though intake organism densities in the Great Lakes harbor water were well below IMO and EPA's ETV Protocol challenge conditions. GSI concluded that the system failed to achieve the USCG numeric discharge standard due to the filters' ineffectiveness at removing filamentous algal forms in Duluth-Superior Harbor water. In addition, very low ambient UV transmittance of Duluth-Superior Harbor water (naturally caused by tannins) at the time of testing likely inhibited the effectiveness of the UV disinfection unit (Great Ships Initiative, 2011).
EPA also considered an option in which Great Lakes vessels would be required to install, operate, and maintain a USCG type-approved BWMS but not have to meet a discharge standard. This option assumes that the structural challenges of installing, operating and maintaining a USCG type-approved BWMS, particularly for Lakers, could be overcome and would be available and economically achievable. Specifically, consideration was given to an equipment carriage requirement in which a Great Lakes vessel would be required to install, operate and maintain (
EPA is not proposing this approach because such a requirement to install a current BWMS without addressing the incompatibility with the environment conditions of the Great Lakes or the technical equipment considerations does not reflect BAT. There is significant uncertainty as to the operational functionality of BWMS in the Great Lakes, particularly when operating conditions extend outside the design parameters of any available treatment systems. For example, given that U.S. Lakers have uncoated ballast tanks, it is expected that many vessel
In addition, EPA determined that such an equipment requirement does not meet the “economically achievable” portion of the BAT requirement for this proposed rule. An equipment standard may require a costly installation and maintenance of a system only to be faced with an imperative for the vessel owner to modify the system to be able to operate the vessel as necessary or even to replace the system with newer technology in the near future. Vessels that operate exclusively in the Great Lakes have a significant lifespan as compared to seagoing vessels due to the freshwater conditions of the Great Lakes. Installation of a BWMS on a Laker, for example, would be based on the life of the BWMS, not the life of the vessel. However, retrofitting a Laker for BWMS is a significantly costly endeavor, particularly for U.S. owned vessels, which as Jones Act vessels, are required to be built in U.S. shipyards or pay a 50 percent U.S. tax for repairs done in a foreign shipyard. For this reason, if a Laker vessel was reconfigured to fit a current USCG type-approved system, retrofitting that same vessel for a newer BWMS that may require a different configuration may be cost prohibitive and impede the deployment of more effective technologies in the future.
There are insufficient data at this time to establish an alternative equipment standard for Great Lakes vessels that is technically available and economically achievable. EPA has determined that implementing a carriage standard may be short-sighted and costly to the vessel community with an unknown level of effectiveness to reduce ANS discharges in the Great Lakes. Additional research is needed before EPA could identify a standard that reasonably satisfies the statutory BAT requirements consistent with Section 903(g)(2)(B)(viii) of the VIDA which establishes a program for EPA, in collaboration with other federal agencies, to research and develop BWMS for use by vessels operating on the Great Lakes.
EPA assessed whether technologies are available other than USCG type-approved BWMS or other BMPs that could be used for Great Lakes vessels. The IMO has approved more than 60 commercially available BWMS. However, as discussed earlier, the IMO type-approval process does not meet EPA and USCG QA/QC criteria and as such, vendors must obtain USCG type-approval for any BWMS to be used in the U.S. beyond the five-year bridge to compliance during which time an IMO type-approved and USCG recognized alternate management system (AMS) may be used. EPA also evaluated the potential for technology transfer from other industries. However, adapting land-based technology for use onboard a vessel entails different criteria and challenges, such as acceptable shipboard materials, safety, hazardous spaces, and vessel stability considerations. For these reasons, no similar technologies have been identified for evaluation against this vessel-based standard, which accounts for vessel design, stability, and safety at sea.
Information on technologies and practices other than type-approved systems is limited but EPA did evaluate alternative options for Great Lakes vessels. The three alternatives considered include (1) use of filtration only, (2) open lake exchange of highly turbid water taken up in river ports, and (3) exempting the use of a ballast water treatment system for certain voyages when the operational parameters of an installed BWMS cannot be met.
Some research has explored the potential of using filtration-only to treat ballast water; rather than the more common filtration coupled with disinfection. The Great Ships Initiative (GSI) evaluated the performance of eight commercially available filter systems which covered a range of technologies and nominal pore sizes using ambient Duluth-Superior Harbor water and amended intake water to achieve a minimum concentration of 24 mg/L total suspended solids (TSS). Analysis of the GSI filter system performance data shows that regardless of filter pore size, no system can achieve the IMO or USCG numeric discharge standards. According to GSI, the soft-bodied microzooplankton which make up most zooplankton in Duluth-Superior Harbor that straddle the 50µm size range were the most difficult to remove by filtration. Macrozooplankton, which are the least numerous in Duluth-Superior Harbor, were the easiest to remove by filtration (Great Ships Initiative, 2014).
GSI's findings are consistent with other researchers who studied the performance of BWMS filtration systems in the Great Lakes. In 2012, Briski et al. (2014) collected before and after filtration samples from a 40 µm BWMS filtration unit installed on the M/V Richelieu, a 729-foot bulk carrier that typically operates in the Great Lakes and the Atlantic coast of North America. The three shipboard trials conducted dock side in Quebec City, Quebec and Sarnia, Ontario, and at anchor in Thunder Bay, Ontario, found filtration significantly reduced abundance of copepods and cladocerans, but not of juvenile dreissenid veligers and rotifers. Briski et al. concluded that filtration alters the relative abundance of zooplankton, but filtration alone does not reduce introduction risk of any taxonomic group due to the small juvenile stages and dormant eggs which can be passed through BWMS filters (Briski et al., 2014).
EPA determined that filtration alone is not sufficient to meet the numeric discharge standard and there is neither sufficient data at this time to establish an alternative standard for Great Lakes vessels using filtration that would reduce ANS discharge at a known effectiveness level nor information on the practical installation and operation, including cost, of such a filtration alternative.
As detailed in the sections above, using a UV-based BWMS eliminates the corrosion concerns associated with use of other types of BWMS that rely on oxidizing chemical addition; however, Great Lakes harbors with high sediment loads and excessive levels of tannins, particularly in river ports, significantly reduce UV light transmittance and prevent UV-based BWMS from providing treatment necessary to achieve the discharge standard. EPA considered a practice in which a vessel leaving a turbid port could conduct an exchange after leaving the port (
EPA also considered the option of requiring Great Lakes vessels to meet the numeric discharge standard using a type-approved BWMS, but to allow the vessel to not have to use the system during certain voyages when the vessel is operating outside the design range of the system. For example, the short voyage times of many Lakers inhibit the use of UV disinfection, deoxygenation, or chemical treatment of many BWMS which require a specific holding time (
The same principle could be applied for voyages during cold months when icing condition occur, or the ambient water temperatures fall below the parameters of the BWMS and impede its operation. An exemption could be given in advance for voyages when these temperatures occur during the shipping season. In addition, there may be less biological activity during the colder months of the year and ANS spread could pose less of a risk. This exemption would allow the operation of a BWMS to be prioritized during increased temperatures when risk increases.
In principle, these exemptions are practical approaches that could be beneficial to allow the prioritization of the operation of BWMS when there is a possibility of more ANS discharges, such as during inter-lake voyages or higher temperatures. However, insufficient data exist to support the imposition of an alternative standard for Great Lakes vessels in the proposed rule and also, it is not clear how such an inconsistent management regime would be evaluated for compliance with the standards and enforcement purposes. Additional research is needed to determine the feasibility of such alternatives and the effective reduction of ANS from these practices. For example, one consideration to address is if the BWMS is only operating during certain voyages, the untreated ballast water and sediments in the tank may reduce the BWMS effectiveness during times when the system is required to be operated. In addition, implementation of these exemptions is contingent on the fact that the structural challenges can be overcome to install and operate a BWMS on Lakers as already described. If these structural challenges can be overcome, these exemptions could play a critical role in advancing the use of BWMS on the Great Lakes vessels during times of prioritized risk.
EPA determined that these three alternatives are not sufficient to meet the numeric discharge standard and there is insufficient data at this time to establish an alternative standard or requirement for Great Lakes vessels that would reduce ANS discharges at a known effectiveness level. Additional research is needed to explore these options. Congress clearly acknowledged that there are not currently practicable ballast water management solutions for Lakers and established the Great Lakes and Lake Champlain Invasive Species Program under the VIDA for EPA to develop such solutions.
To date, no technologies or management practices beyond those identified previously in the VGP and USCG regulations have been demonstrated to be available and implementable solutions to address ballast water discharges from the universe of vessels that operate exclusively on the Great Lakes. In November 2016, the Great Ships Initiative (GSI) published a briefing paper highlighting the problem and need for pure freshwater testing in the Great Lakes stating that USCG and IMO require, as a part of their testing protocols, “challenge conditions for organism sizes and densities that are not a good fit for native (Great Lakes) assemblages” (Great Ships Initiative, 2016). While more research is conducted as authorized by the VIDA, EPA is proposing in this rule to continue to exempt Lakers as well as other vessels that operate exclusively in the Great Lakes from the numeric discharge standard.
EPA believes it is important that new technologies and practices be identified that reduce the discharge of non-indigenous species specifically from Great Lakes vessels and meet the BAT standard. To support the goal of identifying those technologies, EPA is considering whether to require owners/operators of Great Lakes vessels to perform a self-assessment either individually or in partnership with other vessel owners/operators and submit information annually to EPA. Details of the types of information considered and how that information may be used are described in VIII.B.1.vi.C.8.
It is important that this class of vessels remain intimately involved in the technology development and be the basis for the demand for innovative, cost-effective solutions by working closely with researchers and manufacturers. BWMS may very well be developed in stages for the various types of Great Lakes vessels. For example, the design and construction of a newly built vessel would provide the best opportunity to accommodate sufficient space for electrical and mechanical systems. Marine engineers and naval architects could also specify that ballast tanks be completely welded, all sharp metal edges be rounded, and all metal surfaces within the ballast tanks be coated with a material to prevent corrosion. The goal is that research can focus on development of technology to address the environmental and operational conditions Great Lakes vessels.
The VIDA acknowledges the lack of availability of BWMS for Great Lakes vessels and authorizes EPA within its Great Lakes National Program Office to establish the Great Lakes and Lake Champlain Invasive Species Program. One of that program's purposes is identified to develop, achieve type-approval for, and pilot shipboard or land-based ballast water management systems installed on, or available for use by vessels operating solely within the Great Lakes and Lake Champlain to prevent the spread of ANS within the Great Lakes and Lake Champlain Systems. This program is to be developed in collaboration and consultation with several other federal agencies. As acknowledged by Congress in its inclusion of this provision in the VIDA, this program is expected to play a vital role to advance the development of type-approved ballast water management system for Great Lakes vessels and inform future regulations.
Vendors of BWMS to date have not expended adequate time and resources to advance systems that would work onboard Great Lakes vessels, because this fleet represents such a small percentage of the world-wide market, leaving the owners of these vessels with no alternative to selecting a commercially available system that would achieve the numeric ballast water discharge standard once installed and operated on the Great Lakes. This collaborative research strategy is important to drive the market for this technology given the small number of vessels. For example, the combined U.S. and Canadian Laker fleet is less than 150 vessels compared to the tens-of-thousands of other ocean-going vessels worldwide that are now purchasing and installing systems to meet the U.S. or IMO-based ballast water discharge standards.
Once EPA has data and information that can be used to identify additional BAT approaches for Great Lakes vessels, be it installation of technology or implementation of best management practices, the Agency expects to propose updates to the discharge standard to reflect new BAT-based requirements. Such an update may address the entire universe of vessels that operate exclusively on the Great Lakes, or reasonably could consider the appropriateness of the identified technology or practices to the different segments of the Great Lakes fleet, such as among classes, types, and sizes and between new and existing vessels as provided for under the VIDA. While CWA Section 312(p)(4)(D)(i) calls for EPA to review the discharge standards at least every five years and revise if appropriate, the Agency expects a more fluid assessment of the adequacy of standards for Great Lakes vessels, acknowledging that ballast water management research and development activities described under the Great Lakes and Lake Champlain Invasive Species Program established under the VIDA may provide a sound basis for proposing new or updated standards in less than the five-year statutory review timeframe. In CWA Sections 312(p)(10)(B), the VIDA also creates a role for the states in promulgating enhanced Great Lakes requirements by enacting a process in which Governors of the Great Lakes states can work together to develop an enhanced standard of performance or other requirements with respect to any incidental discharge, including ballast water. In all cases where Great Lakes Governors propose an enhanced requirement, EPA and USCG may only reject the proposed requirement if it is less stringent than existing standards or requirements under this section, inconsistent with maritime safety, or inconsistent with applicable maritime and navigation laws and regulations.
EPA is seeking input on whether to include in the final rule a provision requiring that vessels operating exclusively on the Great Lakes, conduct a self-assessment either individually or in partnership with other vessels and submit information annually to EPA. EPA would use this information, together with information on the general sources of incompatibility and the challenging environmental conditions of the Great Lakes with installing and operating existing USCG type-approved BWMS, to revise the discharge standards as new technologies become available and economically achievable (and have acceptable non-water quality environmental impacts). This information would also be critical for the Great Lakes and Lake Champlain Invasive Species Program effort to develop practical ballast water management technologies for Lakers. An important aspect of any future analysis of these vessels is to acknowledge that BAT may not result in the same discharge standards for other classes of vessels or that a one-size-fits-all approach for Great Lakes vessels may not be appropriate. This may be because the technologies and practices available and economically achievable for new vessels may be different from those available to existing vessels, or because the best available technology differs by class of vessels (
EPA seeks comment on the type of vessel-specific information that would be valuable for Great Lakes vessels to include in their annual submission and for EPA to assess. This information could include: Operational considerations on locations and opportune times to conduct ballast water monitoring; specific details of voyages that impact holding times of certain BWMS; details of loading/unloading logistics that limit ballast water management; and reasons for such limitations, including weather considerations, crew considerations or other operational information. In addition, information could be provided on the characteristics of ports for future opportunities for onshore or barge-based reception facility opportunities. Although EPA could also request financial information, EPA proposes not to do this at this time until EPA identifies a promising candidate technology or suite of technologies for Great Lakes vessels.
EPA is seeking input on whether to include in the final rule an extension of the proposed exemptions from the ballast water discharge standards to also include vessels operating primarily, but not exclusively, on the Great Lakes. As written, the proposed rule would require this class of vessels that operate primarily in the Great Lakes but do occasionally voyage to coastal ports outside of the Lakes to both perform a ballast water exchange prior to re-entering the Lakes and to meet the numeric discharge standard for any ballast water, including any unpumpable residual waters and sediments, subsequently discharged within the Great Lakes, similar to requirements applicable to vessels entering the Great Lakes from overseas voyages. EPA is seeking this input acknowledging that the BWMS installed to treat ballast water taken up outside of the Great Lakes will be unlikely to consistently meet the numeric discharge standard for ballast water taken up within the Great Lakes because of the same environmental challenges of operating a BWMS under the conditions of the Great Lakes described for those vessels operating exclusively within the Great Lakes.
With that in mind, EPA is seeking input on whether a vessel that maybe voyages outside the Great Lakes once or twice a year, but in no case more than half of the time, should be required to install a ballast water management system for use during those times when the vessel is discharging ballast water that had been taken on outside of the Great Lakes. The type of information for which EPA is seeking input include the voyage patterns and durations and
The vessels that would be impacted by this option are mostly, if not exclusively, Canadian vessels that voyage to coastal ports outside of the Great Lakes where bulk cargo is reloaded onto seagoing vessels for transport around the world. This portion of the vessel universe includes bulkers, tankers, general cargo vessels, articulated tug-barges, tugboats, river barges, and passenger vessels. Most coastal vessel voyages originate in ports in western Lake Superior and western Lake Erie where bulk cargo including grain and coal is loaded and then transported to Canadian ports along the St. Lawrence Seaway east of Montreal. EPA has limited information on this class of largely Canadian vessels and the nature of their voyage patterns and ballasting activities (Bailey et al., 2012).
As described in VIII.B.1.vi.C.8.i. Vessel-Specific Data Submission to Inform Revised Standard for Vessels Operating Exclusively on the Great Lakes, EPA is committed to performing a full assessment of environmental conditions and vessel ballasting activities in the Great Lakes as necessary to enhance requirements for Great Lakes vessel ballast water management technologies and practices that reduce the discharge of ANS in the Great Lakes with a goal to update the standards at a later date based on the findings from that assessment.
EPA proposes to exempt certain vessels from the numeric ballast water discharge standard as specified in 139.10(d) of the proposed rule. These exemptions are generally consistent with the VGP and USCG 33 CFR part 151 subparts C and D regulations with some exceptions as described below.
The proposed exclusions in section 139.10(b), VIII.B.1.ii.
In contrast, the proposed exemptions in section 139.10(d)(3) as described in this section, would exempt vessels from the numeric ballast water discharge standard in section 139.10(d) only. Exempt vessels would still be required to meet the ballast water BMPs described in section 139.10(c) of the proposed rule and the ballast water exchange and saltwater flushing requirements included in section 139.10(e) of the proposed rule, as applicable.
There are six categories of vessels that would be exempt from the discharge standard, and they are: Any vessel that is less than or equal to 3,000 GT ITC (1,600 GRT if GT ITC is not assigned) and that does not operate outside the exclusive economic zone (EEZ); any non-seagoing, unmanned, unpowered barge, except any barge that is part of a dedicated vessel combination such as an integrated or articulated tug and barge unit; any vessel that uptakes and discharges ballast water exclusively in a single COTP Zone; any vessel that does not travel more than 10 NM and does not pass through any locks; any vessel that operates exclusively in the Laurentian Great Lakes; and any vessel in the USCG Shipboard Technology Evaluation Program (STEP). In VIII.B.1.v.C.1.
The proposed rule would carry forward the existing VGP and USCG 33 CFR 151.2015 exemption from the ballast water numeric discharge standard for vessels that are less than or equal to 3,000 GT ITC (1,600 GRT if GT ITC is not assigned) and that do not operate outside the EEZ. This includes both seagoing and non-seagoing vessels. EPA bases this proposed exemption on the finding that ballast water technologies are not available or economically achievable for this universe of smaller vessels (
Therefore, EPA proposes that this class of vessels can minimize the discharge of untreated ballast water through best management practices only, without being required to meet the ballast water numeric discharge standard. It is important to note that this exemption will be reconsidered in the future if technology becomes available for this size class of vessels.
Most unmanned, unpowered barges operate in internal and coastal waterways (
EPA proposes to exempt any non-seagoing, unmanned, unpowered barge, that is not part of a dedicated vessel combination, such as an integrated or articulated tug barge (ATB) unit
Consistent with the provisions of the previous VGP and existing USCG regulations at 33 CFR 151.2015(c) and (d)(3), the proposed rule would exempt from the ballast water numeric discharge standard vessels that uptake and discharge ballast water exclusively in a single COTP Zone, but that may operate in more than one COTP Zone. This exemption retains the BMPs for these vessels to ensure that ballast water is managed appropriately, however acknowledges that in all other instances, the discharge does not significantly contribute to the introduction and spread of ANS.
Consistent with the provisions of the previous VGP, the proposed rule would exempt from the ballast water numeric discharge standard vessels that travel no more than 10 NM and do not pass through any locks during their voyages. These vessels (
While at this time EPA is not aware of any specific vessels which currently meet these criteria for the exemption, EPA did not want to inadvertently require ballast water numeric discharge standard be met for such vessels.
As described in VIII.B.1.vi.C.
EPA acknowledges this standard is less stringent than the VGP; however, the VIDA provides for less stringent requirements when, as in this case, the Administrator determines that a material technical mistake occurred when promulgating the existing requirement of the VGP. 33 U.S.C. 1322(p)(4)(D)(ii)(II)(bb). EPA made such a material technical mistake when it failed to acknowledge that the extreme environmental conditions and operational limitations that prevented pre-2009 Lakers from treating its ballast water also affect the ability of other Great Lakes vessels from doing the same.
Also, consistent with CWA Section 312(p)(4)(D)(ii)(II)(aa), the Administrator may revise a standard of performance to be less stringent than an applicable existing requirement if information becomes available that was not reasonably available when the Administrator promulgated the initial standard of performance or comparable requirement of the VGP, as applicable (including the subsequent scarcity or unavailability of materials used to control the relevant discharge); and would have justified the application of a less-stringent standard of performance at the time of promulgation. As detailed in VIII.B.1.vi.C.1.
EPA is not proposing to exclude any vessels from the Great Lakes saltwater flushing and ballast water exchange requirements when such vessels enter the St. Lawrence Seaway through the mouth of the Saint Lawrence River; thus, any vessel operating in the Laurentian Great Lakes that leaves the Lakes and takes on ballast water outside of the Lakes would be required to exchange that ballast prior to re-entering the St. Lawrence Seaway through the mouth of the St. Lawrence River consistent with the Great Lakes requirements in section 139.10(f) of the proposed rule. The Agency is requiring this as specifically established by Congress in the VIDA CWA Section 312(p)(10)(A).
The proposed rule would exempt from the ballast water numeric discharge standard a vessel equipped with ballast tanks if that vessel is enrolled by the USCG into the Shipboard Technology Evaluation Program (STEP). This exemption is consistent with existing VGP requirements and USCG 33 CFR part 151 subpart D regulations. The STEP program currently applies and will continue to play a critical role in the development of effective ballast water treatment systems, as with many other related or similar programs the USCG might implement in the future. The program has encouraged pioneering vessel operators to install ballast water
EPA is not proposing compliance dates for the numeric ballast water discharge standard; rather, the Agency expects the USCG to include such as part of its VIDA CWA Section 312(p)(5) implementation, compliance, and enforcement rulemaking. The Agency acknowledges and supports continuation of the USCG extension program, in 33 CFR 151.1513 and 151.2036, for those cases where the master, owner, operator, agent, or person in charge of a vessel subject to this subpart can document that, despite all efforts, compliance with the numeric ballast water discharge standard is not possible. The details of such vessel-specific requests are left to the USCG. For perspective, the existing USCG review considers safety and regulatory requirements of electrical equipment, vessel capacity to accommodate BWMS, vessel age, shipyard availability, or other similar factors and extensions are granted for no longer than the minimum time needed, as determined by the USCG, for the vessel to comply with the numeric ballast water discharge standard.
The proposed rule would require certain vessels to conduct a ballast water exchange as an interim ballast water management measure prior to compliance with the ballast water numeric discharge standard. Except for vessels entering the Great Lakes, vessels on Pacific Region voyages, and vessels with empty ballast tanks, the VIDA did not alter the ballast water exchange requirements in the VGP and USCG regulations at 33 CFR 151.2025. EPA proposes to maintain these requirements that prior to a vessel meeting its compliance date for meeting the numeric ballast water discharge standard, any vessel operating beyond the EEZ and with ballast water onboard that was taken within 200 NM of any shore must either meet the numeric discharge standard or conduct a mid-ocean exchange further than 200 NM from any shore, prior to entering waters of the United States or waters of the contiguous zone. As in the VGP, the exchange must occur as early as practicable in the voyage, so long as the exchange occurs more than 200 NM from shore. This requirement reduces the likelihood of the spread of ANS, most notably prior to a ballast water numeric discharge standard compliance date, by increasing the mortality of living organisms in ballast tanks and ensuring that the discharge contains fewer viable living organisms.
As to the requirements that would apply to vessels entering the Great Lakes and vessels on Pacific Region voyages, those are described in VIII.B.1.x.
Saltwater flushing is defined as the addition of as much mid-ocean water into each empty ballast tank as is safe for the vessel and crew; and the mixing of the flush water with residual ballast water and sediment through the motion of the vessel; and the discharge of that mixed water, such that the resultant residual water has the highest salinity possible; and is at least 30 parts per thousand. A saltwater flushing may require more than one fill-mix-empty sequence, particularly if only small quantities of water can be safely taken onboard a vessel at one time.
The VIDA expanded the requirements that apply to empty ballast tanks beyond the existing EPA requirements in the VGP and in the USCG regulations. Specifically, CWA Section 312(p)(6)(B) requires that vessels conduct mandatory saltwater flushing of empty ballast tanks that carry unpumpable ballast water and residual sediments. As established by the VIDA, EPA proposes to require that vessels with empty ballast tanks and bound for a port or place of destination subject to the jurisdiction of the U.S. must conduct a saltwater flush no less than 200 NM from any shore, for a voyage originating outside the United States or Canadian EEZ, or no less than 50 NM from any shore, for a voyage originating within the United States or Canadian EEZ, prior to arriving at that port or place of destination.
The saltwater flushing requirement is important as it is a widely-used, low-cost preventative approach that minimizes the risk that ANS will be introduced from unpumpable ballast water and residual sediment. The technologies and practices of saltwater flushing are therefore available, practicable, and economically achievable. Saltwater flushing is most effective at eliminating organisms adapted to freshwater and low salinity environments due to the combined impacts of saltwater shock and physical dilution. However, saltwater flushing should also reduce viable living organisms adapted to estuarine, coastal and marine environments. Saltwater flushing reduces viable living organisms in residual ballast water through dilution. It also reduces organisms in resting stages in the residual sediment. Resting stages of ANS often inhabit the sediment in ballast tanks; thus, a reduction in the number of these organisms will likely reduce the propagule of these potential invaders.
The VIDA also specifies certain exceptions to these saltwater flush requirements. Exceptions are identified if the unpumpable residual waters and sediments were treated by a USCG type-approved BWMS; sourced within the same port or place of destination or contiguous portions of a single COTP Zone; or if the vessel is operating exclusively within the internal waters of the United States or Canada. The VIDA also describes additional exceptions including: If compliance would compromise the safety of the vessel as determined by the USCG; is otherwise prohibited by any federal, Canadian, or international law (including regulations) pertaining to vessel safety; or if design limitations of the vessel prevent a saltwater flush from being conducted.
The saltwater flushing exception in the VIDA based on the safety of the vessel is not included in this proposed rule; rather, EPA expects that such safety concerns will be fully articulated in the USCG implementing regulations as applicable to all types of discharges. Section 139.1(b)(3)of the proposed rule makes very clear that the numeric ballast water discharge standard is not applicable if compliance with such standard would compromise the safety of the vessel or is in the interest of ensuring the safety of life at sea, as determined by the Secretary.
The proposed rule would add a limitation to the design exclusion as
With the exception of Pacific nearshore voyages (as described in the section below), the VGP only specified requirements for saltwater flushing of empty tanks for vessels that are engaged in an international voyage and traverse more than one COTP Zone. These vessels are required to either seal the tank or conduct saltwater flushing of such tanks in an area 200 NM from any shore. The VGP also allowed, except for vessels entering the Great Lakes or in federally-protected waters, a vessel to not deviate from its voyage, or delay the voyage to conduct ballast water exchange or saltwater flushing. However, the VIDA did not include such an exemption and as such an exemption is not included in the proposed rule.
The proposed requirements for saltwater flushing as established by the VIDA would be new for vessels engaged in coast-wise voyages on the East Coast and Gulf Coast within the EEZ and traverse more than a single COTP Zone outside of internal waters. These vessels will now be required to conduct a saltwater flush of empty ballast tanks no less than 50 NM from any shore before arriving at a U.S. port, regardless of whether they must deviate from their voyage to do so.
The oceangoing vessels subject to this requirement are either those that have an empty ballast tank or a tank that contains unpumpable residual water, or are vessels that certify, consistent with USCG regulations, that they have “No Ballast on Board” (NOBOB). The USCG and the VGP defined NOBOB vessels as “those vessels that have discharged ballast water to carry cargo, and as a result, have only unpumpable residual water and sediment remaining in tanks.” See 70 FR 51832, August 31, 2005.
The proposed rule would require, based on CWA Section 312(p)(10)(A), vessels entering the St. Lawrence Seaway through the mouth of the St. Lawrence River to conduct a complete ballast water exchange or saltwater flush (as appropriate) not less than 200 NM from any shore for a voyage originating outside the EEZ; or not less than 50 NM from any shore for a voyage originating within the EEZ. There are exceptions to these requirements including: If the vessel has no residual ballast water or sediments onboard to the satisfaction of the Secretary; empty tanks are sealed; or ballast water is retained onboard while operating in the Great Lakes. Consistent with the previous requirements in the VGP, the proposed rule does not contain an exception for vessels that use a ballast water management system to treat the ballast water prior to discharge. Therefore, the proposed rule would make permanent the requirement for both exchange and treatment for most vessels entering the Great Lakes.
The VGP required vessels that operate outside the EEZ and more than 200 NM from any shore and then enter the Great Lakes through the St. Lawrence Seaway to conduct ballast water exchange or flushing in addition to treatment, if ballast water uptake occurred within the previous 30 days from a coastal, estuarine, or freshwater ecosystem with a salinity of less than 18 parts per thousand. EPA proposes that this requirement of the VGP is not necessary to include in the proposed rule given that the VIDA statutory requirements are more restrictive than (and supersede) the VGP.
Consistent with the VIDA, the proposed rule would expand the requirement for exchange or saltwater flushing plus treatment for vessels entering the Great Lakes through the St. Lawrence River to a larger universe of vessels, as compared to the previous VGP and USCG 33 CFR part 151 regulations. First, the proposed rule would extend the requirement for exchange plus treatment to vessels with voyages originating within the United States or Canadian EEZ that enter the Seaway; these would be primarily Canadian vessels. Second, the proposed rule would extend the requirement for exchange plus treatment to international vessels with voyages originating from higher salinity ports outside the EEZ; these were not included in the VGP. In 2014 and 2015, a total of 81 unique vessels arrived at U.S. ports in the Great Lakes from oversees on 131 voyages. Most of these voyages departed from European ports (82 percent). However, there is limited data of the salinity of the origination port. Therefore, it is difficult to estimate the affected universe from higher salinity ports that would now be required to do exchange plus treatment. However, many of these vessels may have been conducting exchange plus treatment prior to the compliance dates for these vessels to install a ballast water management system, to ensure compliance with the VGP. Consequently, there may be minimal impact on these vessels.
Existing USCG regulations at 33 CFR 151.1502 require that vessels, after operating on the waters beyond the EEZ during any part of their voyage, that enter through the St. Lawrence Seaway or that navigate north of the George Washington Bridge on the Hudson River, perform a ballast water exchange or saltwater flush regardless of other port calls in the U.S. or Canada during that voyage, except as expressly provided in 33 CFR 151.2015(a). In the proposed rule, EPA does not specifically identify this universe of vessels for having to perform a ballast water exchange or saltwater flush prior to entering the Hudson River or St. Lawrence Seaway, unless the vessel is meeting the ballast water numeric discharge standard (
Consistent with the VIDA (CWA Section 312(p)(10)(A)(ii)(I)), the proposed rule would provide additional exceptions to ballast water exchange or saltwater flush requirements for vessels entering the Great Lakes, if compliance would compromise the safety of the vessel; or is otherwise prohibited by any federal, Canadian, or international law (including regulations) pertaining to vessel safety; or if design limitations of an existing vessel prevent a ballast water exchange from being conducted. As described in the previous section, the proposed rule would add a limitation to the design exclusion to apply only to existing vessels, defined as a vessel constructed prior to the date identified in the forthcoming USCG implementation regulations, as described in section 139.1(e) of the proposed rule. This limitation is important to prevent the design and
The CWA Section 312(p)(10)(C) establishes more stringent Pacific Region requirements for ballast water exchange than currently required in the VGP. As established by the VIDA, the proposed rule would require that any vessel that operates either between two ports within the U.S. Pacific Region; or between ports in the Pacific Region and the Canadian or Mexican Pacific Coast north of parallel 20 degrees north latitude, inclusive of the Gulf of California, must conduct a complete ballast water exchange in waters more than 50 NM from shore. The term “Pacific Region” includes the entire EEZ adjacent to the states of Alaska, California, Hawaii, Oregon, and Washington. There are exceptions in the VIDA to these exchange requirements including if the vessel is using a type-approved BWMS or for voyages between or to specific ports in the states of Washington, Oregon, California, Alaska, and Hawaii, and the Port of Los Angeles, the Port of Long Beach, and the El Segundo offshore marine oil terminal, if the ballast water originated from specified areas.
The VIDA also specifies, and the proposed rule would require, that any vessel that transports ballast water sourced from low salinity waters (less than 18 parts per thousand) and in voyages to a Pacific Region port or place of destination with low salinity, must conduct a complete ballast water exchange. The exchange must occur not less than 50 NM from shore, if the ballast water was sourced from a Pacific Region port; or more than 200 NM from shore, if the ballast water was not sourced from a Pacific Region port. These exchange requirements would not apply to any vessel voyaging to the Pacific Region that is using a type-approved BWMS that achieves standards of performance for low salinity water that are more stringent than the existing VGP and USCG ballast water numeric discharge standards. The low salinity water standards of performance as specified in CWA Section 312(p)(10)(C)(iii)(II) are:
(A) Less than 1 organism per 10 cubic meters, if that organism (1) is living or has not been rendered nonviable; and (2) is 50 or more micrometers in minimum dimension;
(B) less than 1 organism per 10 milliliters, if that organism (1) is living or has not been rendered nonviable; and (2) is more than 10, but less than 50, micrometers in minimum dimension; and
(C) concentrations of indicator microbes that are less than (1) 1 colony-forming unit of toxicogenic
As established by the VIDA, the proposed rule would exempt vessels from the Pacific Region requirements if any of the following conditions exist: (1) Compliance would compromise the safety of the vessel; (2) design limitations of an existing vessel prevent a ballast water exchange from being conducted; (3) the vessel has no residual ballast water or sediments onboard to the satisfaction of the Secretary, or the vessel retains all ballast water while in waters subject to the requirement; or (4) empty ballast tanks on the vessel are sealed in a manner that ensures that no discharge or uptake occurs and that any subsequent discharge of ballast water is subject to the requirement. As described in the previous ballast water exchange sections, the proposed rule would add a limitation to the design exclusion to apply only to existing vessels, defined as a vessel constructed prior to the date identified in the forthcoming USCG implementation regulations, as described in section139.1(e) of the proposed rule and only as determined by the Secretary. This limitation is important to prevent the design and construction of new vessels that cannot conduct an exchange or flush. It is critical that new vessels voyaging to the Pacific Region have this capability, even if they install a ballast water management system, particularly if the treatment system fails to operate as expected.
As compared to the VGP, the VIDA expanded requirements for the Pacific Region to include exchange or more stringent treatment for low salinity waters. For some vessels the proposed rule requirement to conduct ballast water exchange in the Pacific Region is an interim requirement until a vessel installs a type-approved ballast water treatment system that meets the ballast water discharge standard. However, any vessel that transports low salinity ballast water (less than 18 ppt) and voyages to a low salinity Pacific Region port must continue to conduct a complete ballast water exchange more than 50 NM from shore, unless it has installed a type-approved BWMS that achieves standards of performance, depending on the parameter, up to 100 times more stringent than the existing discharge standard. Currently, there is not a USCG type-approval process for BWMS to demonstrate the ability to achieve this more stringent standard. Therefore, vessels from low salinity waters would need to continue to conduct exchange until such a process is developed and BWMS are approved to meet that more stringent standard.
For the most part, the continental shelf along the Pacific coast is narrow along both North and South America. Deep water environments beyond the continental shelf typically support ecosystems that are quite different than those which exist closer to shore. Due in part to this short width of the continental shelf, relatively deep waters beyond 50 NM from the Pacific shore, exchange at this distance from the Pacific shore will be effective.
In addition, the VIDA described the applicability of the Pacific Region exchange requirements differently as compared to the VGP. The proposed rule implements the VIDA requirements as established by Congress in the statute rather than as written in the VGP. The VGP required exchange for vessels on nearshore voyages which carry ballast water taken on in areas less than 50 NM from any shore. It defined nearshore voyages as those vessels engaged in coastwise trade along the U.S. Pacific coast operating in and between ports in Alaska, California, Oregon and Washington that travel between more than one COTP Zone. The VIDA did not include the stipulation that a vessel voyage must be more than one COTP Zone. In addition, the VIDA includes vessels operating in ports in the state of Hawaii, with certain exceptions, in the exchange requirements which the VGP did not include. The VGP required exchange for all other vessels that sail from foreign, non-U.S Pacific, Atlantic (including the Caribbean Sea), or Gulf of Mexico ports, which do not sail further than 200 NM from any shore, and that discharge or will discharge ballast water into the territorial sea or inland waters of Alaska or off the west coast of the continental U.S. The VIDA did not identify nearshore voyages from outside of the Pacific Region EEZ (although it did include parts of Canada and
The proposed rule would require avoiding the discharge or uptake of ballast water in federally-protected waters. This requirement is similar to the existing VGP requirement with one key exception. The proposed standard removes the applicability of this requirement in areas outside the boundaries of a federally-protected water but that nonetheless may directly affect that federally-protected water. EPA is not including this expansion of the affected area based on the Agency's determination that information needed by a vessel operator to make such a “may directly affect” determination is highly dependent on the specific instant at which a ballast water uptake or discharge event is to occur and that the necessary information to make that determination is not readily available and not easily characterized. However, the Agency does recommend that the discharge or uptake of ballast water be conducted as far from federally-protected waters as possible.
Bilgewater consists of water and residue that accumulates in a lower compartment of the vessel's hull. The source of bilgewater is typically drainage from interior machinery, engine rooms, and decks. Bilgewater contains both conventional and toxic pollutants including oil, grease, volatile and semi-volatile organic compounds, inorganic salts, and metals. Volumes vary with the size of the vessel and discharges typically occur several times per week. Cruise ships have been estimated to generate 25,000 gallons per week for a 3,000 passenger/crew vessel (U.S. EPA, 2008). However, bilgewater treatment technologies can remove pollutants from bilgewater. For example, ultrafiltration can be effective in removing turbidity and suspended solids, organic carbon, and several trace metals (such as aluminum, iron, and zinc) from bilgewater, in addition to oil (Tomaszewska et al., 2005).
Under MARPOL Annex I, all ships of 400 GT ITC and above are required to have equipment installed onboard that limits the discharge of oil to less than 15 ppm when a ship is underway. All vessels of 400 GT ITC and above are also required to have an oil content monitor (OCM), including a bilge alarm, integrated into the piping system to detect whether the treated bilgewater that is being discharged from the bilge separator meets the discharge requirements. Bilge separators, OCMs, and bilge alarms are certified by the USCG to meet 46 CFR part 162 (MARPOL Annex I implementing regulations). Type approval is based on testing of manufacturer-supplied oil pollution control equipment by an independent laboratory, in accordance with test conditions prescribed by the USCG (33 CFR parts 155 and 157 and 46 CFR part 162). Additionally, as appropriate, the discharge of bilgewater also must comply with related requirements in 33 CFR part 151, 40 CFR part 110 and 46 CFR part 162.
The VGP included several requirements for bilgewater that are now proposed as general requirements in the proposed standards in Subpart B—General Standards for Discharges Incidental to the Normal Operation of a Vessel and applicable to all vessels and all discharges. First, the VGP required operators to minimize the discharge of bilgewater by minimizing production, storing bilgewater while operating in the waters of the United States, and discharging the bilgewater to a reception facility. These VGP requirements are consistent with, and incorporated as expected practices of, the proposed general discharge standards in section 139.4(b)(1) that require vessels to minimize discharges. Second, the VGP required vessels greater than 400 GT ITC that regularly sail outside the territorial sea (
The proposed rule would expand upon the applicability of the requirement to discharge treated bilgewater while underway to all vessels of 400 GT ITC and above, not just those that regularly sail outside the territorial sea. However, the proposed rule provides added flexibility by allowing any vessel, including vessels of 400 GT ITC and above to discharge treated bilgewater any distance from shore (the VGP prohibited these vessels from discharging bilgewater within 1 NM of shore). This modification acknowledges that the VGP requirement for discharging while underway, which was triggered if vessels operate outside of waters subject to the VGP at least monthly is difficult to implement and led to confusion about whether and when a vessel may be authorized to discharge bilgewater when not underway. For additional context, data from the most recent VGP annual reports show that very few vessels in this size class discharge bilgewater, treated or untreated, into waters of the United States. The VGP annual reports for the 2019 operating year show that of the more than 28,000 vessels of 400 gross tonnage and above operating in waters covered by the VGP, more than 99.7 percent of those vessels did not discharge any bilgewater, treated or untreated, into these waters. However, to provide additional opportunities to discharge, the proposed VIDA standards allow all vessels, including vessels of 400 GT ITC and above, to discharge treated bilgewater while underway anywhere, except in federally-protected waters. EPA expects this slight modification to the VGP requirements would clarify the applicability of the requirements but would not impose any significant additional cost burden; rather, it would only require certain vessel operators to adjust the timing and location of bilgewater disposal. Consistent with section 139.1(b)(3) of the proposed standards, an operator of a vessel of 400 GT ITC and above may discharge bilgewater, treated or untreated, while stationary (and not underway) if compliance with this part would compromise the safety of life at sea.
The proposed rule would also continue the requirement from the VGP and require that the discharge of bilgewater must not contain any flocculants or other additives except when used with an oily water separator or to maintain or clean equipment. And consistent with the VGP, the use of any additives to remove the appearance of a visible sheen would be prohibited.
Finally, as discussed in VIII C.
EPA researched the state of bilgewater treatment systems to consider whether a targeted reduction in the bilgewater numeric discharge standard from 15 ppm to 5 ppm oil and grease might have
1. Before imposing requirements in the U.S., EPA should work with the international community at IMO to explore whether to have more stringent limits for new build vessels;
2. EPA should seek additional information as to whether systems do, in fact, continue to perform as indicated in their type approval data when on-board ships; and
3. Type approved systems capable of meeting a 5 ppm limit are available.
After considering the VGP comments and other relevant information, EPA decided not to propose a 5 ppm numeric discharge standard for several reasons. First, concerns were raised during the VGP comment period regarding whether these systems are, in practice, “available,” and function onboard ships as their type approval data indicate they should. Additionally, a 2015 study, identified as the “MAX1 Studies” and commissioned by the National Fish and Wildlife Foundation, with oversight from the USCG, reached the conclusion that existing regulations for oily water separators “. . . are, for the most part, sufficient for their purposes” and that the focus needs to be on implementation and application of existing regulations. Lastly, assuming that systems are indeed capable of meeting a 5 ppm numeric discharge standard, the standard OCMs in wide use may be unreliable at this low of a detection level and may therefore result in frequent false alarms.
At this time, EPA invites comment on the proposed standard and whether the following should be required by the final rule: (1) Type-approved systems capable of meeting a 5 ppm numeric discharge standard, and (2) OCMs that can consistently and accurately determine oil content at these low detection levels when considering margin for error. The research performed by EPA suggests that OCMs relying on alternative mechanisms other than turbidity/light scattering, such as UV fluorescence, may be more accurate since the monitor can differentiate between oil and other contaminants. EPA invites comment on the cost and availability of such OCMs.
Boiler blowdown is the discharge of water and constituents from the boiler during regular intervals to avoid concentration of impurities and at intermittent intervals for cleaning or other purposes. Boiler blowdown occurs on vessels with steam propulsion or a steam generator to control anti-corrosion and anti-scaling treatment concentrations and to remove sludge from boiler systems. Routine blowdown involves releasing a volume of about one to ten percent of the water in the boiler system, usually below the waterline to manage the accumulation of solids and buildup of dissolved solids in the boiler water. Frequency of required blowdown varies, typically between once every two weeks to once every couple of months although on some vessels, blowdown may be as frequent as daily or even continuously. The constituents of boiler blowdown discharge vary according to the types of feed water treatment used, but may include toxic pollutants such as antimony, arsenic, cadmium, copper, chromium, lead, nickel, selenium, thallium, zinc, and bis (2-ethylhexyl) phthalate.
EPA endeavored to identify new technology and best management options for discharges from boilers; however, EPA did not identify new information or options. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements, following the procedures described in section 4.2 of the Final 2013 VGP Fact Sheet. Similar to the VGP, the proposed standard would require that the discharge of boiler blowdown be minimized when in port. This requirement acknowledges that blowdown typically must be performed as necessary and that while the amount of blowdown can often be minimized, the timing of such blowdown, in many instances, cannot be safely changed, such as to only those times when a vessel is not in port.
The proposed boiler standard does not carry forward language from the VGP regarding the prohibition on boiler blowdown discharges for vessels greater than 400 gross tonnage which leave the territorial sea at least once per week except in three specific instances: (1) The vessel remained within waters subject to this permit for a longer period than the necessary duration between blowdown cycles; (2) the vessel needed to conduct blowdown immediately before entering drydock; or (3) for safety purposes. EPA opted not to include similar language in the proposed rule because the VGP approach, which was triggered if vessels operate outside of waters subject to the VGP at least once a week, led to confusion about when a vessel may be authorized to discharge boiler blowdown. Rather, the proposed boiler blowdown standard was developed acknowledging that, consistent with the General Operation and Maintenance requirements described in Subpart B, vessel operators would be expected to minimize discharges of blowdown to only those times when necessary and to discharge while the vessel is underway when practical and as far away from shore as practical.
As drafted, and consistent with the VGP, the proposed standard would allow the discharge of boiler blowdown (1) if the vessel remains within waters of the United States and waters of the contiguous zone for a longer period than the necessary duration between blowdown cycles, (2) if the vessel needs to conduct blowdown immediately before entering drydock, or (3) for safety purposes.
This proposed standard is similar to the VGP requirements for blowdown that was applied to vessels greater than 400 GT ITC but expands the requirement to all vessels. EPA proposes the standard with the expectation that all vessels and not just vessels of 400 GT ITC and above can minimize discharges of blowdown and when having to discharge boiler blowdown, can discharge while underway if practical and as far from shore as practical. Based on the VGP experience whereby vessels greater than 400 GT ITC have been meeting this requirement by adjusting the timing and location of blowdown events, EPA expects that (smaller vessels) can similarly change the timing and location of their blowdown events as necessary to minimize the discharge. EPA expects this slight modification to the VGP requirements would reduce the discharge of various pollutants but would not impose any significant additional cost burden; rather, it would only require certain vessel operators to adjust the timing and location of blowdown events.
Finally, as discussed in VIII C.
Cathodic protection systems are used on vessels to prevent steel hull or metal structure corrosion. The two types of cathodic protection are galvanic (
EPA endeavored to identify new technology and best management options for discharges resulting from cathodic protection; however, EPA did not identify new technology since the development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements and is proposing to require substantively the same standard of performance required by the VGP acknowledging that many of the VGP requirements for cathodic protection are now incorporated into section 139.4 of the proposed rulemaking for general operation and maintenance as applicable to all specific discharges. For example, Part 2.2.7 (Cathodic Protection) of the VGP required that sacrificial anodes must not be used more than necessary to adequately prevent corrosion of the vessel's hull, sea chest, rudder, and other exposed vessel areas. EPA is not including this specific requirement for cathodic protection in section 139.13 of this proposed rulemaking since section 139.4(b)(5)(i) proposes a similar requirement that any materials used onboard, including any sacrificial anodes, that are subsequently discharged be used only in the amount necessary to perform their intended function.
EPA is proposing to continue the requirement from the VGP that any spaces between flush-fit anodes and the backing must be filled. This proposed standard is in consideration of the fact that niche areas on the hull are more susceptible to fouling as well as more difficult to clean and as such can become hotspots for fouling organisms.
EPA is not carrying forward the requirement from the VGP regarding the selection of sacrificial anode systems based on toxicity of the anode. The proposed approach is consistent with the technological evaluation performed for the VGP, which acknowledged that type of anode metal selected based on toxicity (magnesium, then aluminum, then zinc) may not be technologically feasible and/or economically practicable and achievable in many instances. EPA has recently learned of more situations where anode selection based on toxicity presents practical challenges. For example, in harbors or estuaries with high pollutant loads, zinc is the preferred anode material for vessels that spend time in those waters because of concerns with pollutants causing aluminum anodes to passivate and lose effectiveness. While EPA is not continuing this concept from the VGP, the Agency does continue to support operators considering toxicity as part of the anode selection process.
These proposed requirements represent a practicable and achievable approach to reducing discharges from this necessary hull protection operation.
EPA did consider requiring use of ICCP because these systems eliminate or reduce the need for sacrificial anodes. However, there is a risk of overprotecting using these systems (
Chain lockers are the storage area onboard for housing the vessel's anchor and chain. Water, sediment, biofouling organisms, and contaminants can enter and accumulate in the chain locker during anchor retrieval and precipitation events; the accumulation of water and other materials in the chain locker is often referred to as the chain locker effluent. This effluent can contain both conventional and nonconventional pollutants including ANS and residue from the inside of the locker itself, such as rust, paint chips, grease, and zinc. The sump collects these liquids and materials that enter the chain locker prior to discharge or disposal.
EPA endeavored to identify new technology and best management options for discharges from chain lockers; however, EPA did not identify new information or options since the development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements and is proposing to require substantively the same standard of performance required by the VGP.
As required by the VGP, EPA proposes that vessel operators must perform BMPs that would reduce or eliminate chain locker effluent discharge. Specifically, EPA proposes that vessel operators must thoroughly rinse the anchor chain of biofouling organisms and sediments each time it is brought out of the water. Additionally, EPA proposes that the discharge of accumulated water and sediment from the chain locker is prohibited when the vessel is in port. Finally, although not required in the VGP, EPA is proposing that for all vessels that operate beyond the waters of the contiguous zone, anchors and anchor chains must be rinsed of biofouling organisms and sediment, prior to entering the waters of the contiguous zone. This requirement is intended to minimize the discharge of biofouling organisms when vessels that operate beyond waters of the contiguous zone re-enter these waters and subsequently drop anchor in waters of the United States or waters of the contiguous zone.
Finally, as discussed in VIII C.
Deck discharges may result from deck runoff, deck wash down, or deck flooding. Deck runoff consists of rain and other precipitation and seawater which washes over the decks or well decks. Deck washdowns consist of cleaners and freshwater or saltwater. Deck flooding generally consists of seawater from the flooding of a docking well (well deck) on a vessel used to transport, load, and unload amphibious vessels, or freshwater from washing the well deck and equipment and vessels stored in the well deck. Deck washdown, runoff, and flooding discharges include those from all deck and bulkhead areas, and associated equipment. The constituents and volumes vary widely, are highly dependent on a vessel's purpose, service, practices, and may include both conventional and nonconventional pollutants such as oil, grease, fuel, cleaner or detergent residue, paint chips, paint droplets, and general debris.
EPA endeavored to identify new technology and best management options for discharges from decks; however, EPA did not identify any technology since the development of the
EPA proposes that it is infeasible to set a specific numeric discharge standard for discharges from decks and well decks because of the variation in vessel size and associated deck surface area, the types of equipment operated on the deck, and limitations on space for treatment equipment. As such, EPA proposes that BMPs must be implemented to minimize the volume of discharges and the various pollutants from decks.
As required in the VGP, the proposed rule would require vessel operators to properly maintain the deck and bulkhead areas to keep the deck clean; prevent excess corrosion, leaks, and metal discharges; contain potential contaminants to keep them from entering the waste stream; and use environmentally safe products. Properly maintaining the deck would include the use of coamings or drip pans for machinery on the deck that is expected to leak or otherwise release oil, so that any accumulated oils from these areas can be collected and managed appropriately.
As required in the VGP, EPA also proposes that prior to performing a deck washdown and when underway, exposed decks must be kept broom clean, to remove existing debris and prevent the introduction of garbage or other debris into any waste stream. Broom clean means a condition in which the deck shows that care has been taken to prevent or eliminate any visible concentration of debris or garbage. Similarly, discharge of floating solids, visible foam, halogenated phenolic compounds, dispersants, surfactants, and spills must be minimized in any deck washdown water discharged overboard. Additionally, during deck washdown, the proposed rule would require that the washdown be conducted with minimally-toxic, phosphate-free, and biodegradable soaps, cleaners, and detergents. The proposed standard would also require that deck washdowns be minimized in port. Lastly, the proposed rule would require that where applicable by an international treaty or convention or the Secretary, a vessel must be fitted with and use physical barriers (
Finally, as discussed in VIII C.
Distilling and reverse osmosis plants also known as water purification plants or desalination systems, generate freshwater from seawater for a variety of shipboard applications. These include potable water for drinking, onboard services (
EPA endeavored to identify new technology and best management options for discharges from desalination and purification systems; however, EPA did not identify any new technology since the development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements and is proposing to require substantively the same standard of performance required by the VGP.
EPA is proposing to modify the language used in the VGP associated with toxic and hazardous materials to add more clarity by proposing to prohibit discharges resulting from the cleaning of desalination or purification systems with hazardous or toxic materials.
Most vessels with multiple decks are equipped with elevators to facilitate the transportation of maintenance equipment, people, and cargo between decks. A pit at the bottom of the elevator collects liquids and debris from elevator operations. The liquid and debris that accumulates in the pits, often referred to as elevator pit effluent, can be emptied by gravity draining, discharged using the firemain, transferred to bilge, or containerized for onshore disposal. The effluent may contain toxic, conventional, and nonconventional pollutants such as oil, hydraulic fluid, lubricants, cleaning solvents, soot, and paint chips.
EPA endeavored to identify new technology and best management options for discharges from elevator pits; however, EPA did not identify any new technology since the development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements and is proposing to require substantively the same standard of performance required by the VGP.
As required by the VGP, EPA proposes to prohibit the discharge of untreated accumulated water and sediment from any elevator pit.
Exhaust gas emission control systems for reducing sulfur oxides (SO
An EGCS is used primarily to remove SO
The use of scrubbers on ships is in large part an outgrowth of international treaties for reducing sulfur emissions from marine exhaust. Under MARPOL standards and subsequent updates, as of January 2020, the highest permissible sulfur content of marine fuel globally is 0.5 percent. The allowable fuel sulfur content for vessels operating in Emission Control Areas has been further restricted to 0.1 percent as of January 2015. The United States is a signatory to the international treaties and is included in the North American Emission Control Area, meaning that the 0.1 percent limit for marine fuel sulfur content is currently in effect for vessels operating in the waters of the United
MARPOL approved the use of an EGCS to achieve the international standards for marine emissions as an alternative to operating on low sulfur fuel. This approval spurred many vessel owners to install scrubbers in lieu of switching to costlier low sulfur fuels. Recent information from the international registrar and classification society Det Norske Veritas and Germanischer Lloyd (DNV GL, 2019) indicates that out of the total vessel universe, there are currently 3,000 ships with installed or firmly planned scrubber systems, with predictions ranging up to as many as 4,000 installations.
The two main “wet” scrubber EGCS technologies used on vessels for meeting the MARPOL marine emissions requirements are open-loop and closed-loop systems. Although use of scrubbers on ships is relatively recent, these systems are based on technologies deployed for land-based systems for controlling smokestack emissions and generally transfer well to ship-board use. Open-loop systems remove the contaminants from marine exhaust by running the exhaust through seawater sourced from outside the vessel and then discharging the resulting washwater back out to sea. In contrast, closed-loop systems use freshwater and inject caustic soda to neutralize the exhaust. A small portion of the washwater is bled off and treated to remove suspended solids, which are held for shore-side disposal. While this design is not completely closed-loop, it can operate in zero discharge mode for a period of time. Hybrid scrubbers are systems that can operate either in open- or closed-loop mode. Typically, at sea, these hybrid systems operate in open-loop mode, whereas in nearshore waters, harbors, and estuaries, they operate in closed-loop mode. Dry scrubbers are another type of EGCS; however, these systems do not generate wastewater, and hence would not be subject to these proposed requirements.
EGR systems are used to reduce NO
EPA is proposing a standard for EGCS and EGR discharges based on IMO's guidelines for discharges from these two types of emission control systems. Specifically, the standard is largely based on the IMO 2015 Guidelines for Exhaust Gas Cleaning Systems (Resolution MEPC.259(68) and the IMO 2018 Guidelines for the Discharge of Exhaust Gas Recirculation (EGR) Bleed-Off Water (MEPC 307(73))). The IMO EGCS guidelines mostly focus on the air emissions of scrubbers; however, Section 10 of these guidelines sets out limits for five constituents in scrubber washwater: pH, PAH, turbidity, nitrates, and additives. Section 10 also includes handling and disposal criteria for scrubber residues. While the IMO criteria are guidelines rather than requirements, EPA is proposing to incorporate the discharge requirements of the IMO EGCS guidelines as EPA standards. With respect to discharges from EGR systems, the IMO EGR guidelines were based primarily on the IMO's own 2015 guidelines for EGCS discharges, with a few key differences in recognition of the composition of the EGR bleed-off washwater and the on-board process for handling this waste stream. The proposed standard reflects this parallel structure and retains the minor distinctions in the IMO EGR guidelines to accommodate differences between the two systems.
The proposed standard carries forward most of the VGP EGCS requirements, which were based largely on the 2009 version of the IMO EGCS guidelines. The key difference is that in an effort to harmonize EPA standards with the IMO guidelines to the extent possible, EPA proposes to amend the pH limit for discharges of EGCS washwater to 6.5 and is adding the additional IMO option for determining the limit based on either in-water measurement or a calculation-based methodology. In contrast, the VGP requirement is for EGCS washwater discharges to have a pH of no less than 6.0 as measured at the overboard discharge point. The VGP did not include specific requirements for discharges from EGR systems, in part because international awareness of the environmental effects of these discharges was not at the forefront of concerns relating to implementation of the NO
As part of the effort to harmonize the EPA exhaust gas emission control systems discharge standards under the VIDA with the IMO guidelines, EPA has also reworded the phrasing of the proposed standard to harmonize more closely with the language in the IMO guidelines. In this context, EPA notes that in the exception proposed in section 139.18(b)(1)(i)(A) pertaining to the pH limit, the use of the word “transit” refers specifically to when a vessel is underway as part of entering or exiting port. Similarly, EPA notes that in section 139.18(b)(1)(i)(B), the pH discharge limit as determined either by measurement or computation applies to the vessel both when stationary as well as when underway. EPA elected not to include these clarifications so as to not diverge from the language in the IMO guidelines, but was able to confirm through consultation with IMO experts and technical staff that they reflect the original intent of the IMO guidelines.
As EPA acknowledged in the factsheet accompanying the 2013 VGP, the reason the VGP established a different pH limit for EGCS discharges from the IMO was that the NPDES permitting framework requires discharge limits to be set at the point of discharge. At the time, EPA determined that the 6.0 limit applied at the point of discharge maximized consistency with the IMO guideline for a pH of 6.5 four meters from the hull by accounting for the buffering “likely to occur within the 4-meter range.” Under the VIDA, in contrast, EPA no longer needs to account for the buffering because EPA is now proposing a standard of performance rather than a limit for a permit. The discharge standard continues to include the additional provision, consistent with the IMO guideline, that the maximum difference allowed between inlet and outlet during maneuvering and transit is 2.0 pH units.
EPA previously presented its BAT analysis for the EGCS limits for the other four parameters—PAH, nitrates, turbidity, and additives—as part of the NPDES permit issuance process. That analysis is not revisited here since the
EPA's BAT analysis determined that use of EGCS technologies to meet the proposed EGCS standard is economically achievable for several reasons. As was true when EPA first issued the VGP EGCS requirements in 2013, EGCS manufacturers already design their systems to meet the IMO guidelines, so any numeric discharge standard imposed by turning these guidelines into regulatory requirements will not result in any additional financial burden to operators. Second, given the current price differential between high and low sulfur fuels, use of an EGCS allows vessel operators to realize significant cost savings when using lower grade fuel with scrubbers compared to using more expensive, higher grade fuels with lower sulfur content. EPA also notes that the proposed pH numeric discharge standard will result in less confusion for the shipping community by harmonizing EGCS requirements with international guidelines as set out by IMO.
The Agency considered several other options for regulating EGCS discharges. However, existing technology alternatives to the proposed EGCS discharge standard are either impractical or expensive. For example, increased use of neutralization chemicals would introduce significant occupational and passenger safety issues because of chemical storage and handling issues. Modifying existing open-loop systems to hybrid systems (
Another option considered was to ban discharges from scrubbers outright (
EPA's proposed exhaust gas emission control standard also includes requirements for discharges of EGR bleed-off water and residues in recognition of the fact that they can exhibit low pH and contain other toxic, conventional, and nonconventional pollutants covered under the CWA. The requirements mirror those in the 2018 IMO EGR guidelines in that they largely include the same limits as listed in the 2015 IMO guidelines for EGCS discharges. EPA determined that shipboard technology for meeting these limits is readily available since the international marine community needed to address the requirements upon publication of the 2018 IMO EGR guidelines. As such, EPA has determined that the existing technology for meeting the limits is economically achievable, and EPA notes that the IMO has not received any indication from the maritime community that achieving the limits resulted in any undue economic burden or that alternative technologies for handling the EGR waste stream exist that merit investigation. The proposed standard includes the same prohibition as found in the IMO EGR guidelines for discharges of EGR bleed-off captured in holding tanks. The applicability of EPA proposed standard for EGR bleed-off however, would exclude when the vessel is underway and operating on fuel that meets the MARPOL Annex VI sulfur emissions requirements in effect starting in 2020. The applicability is slightly different from that in the IMO EGR guidelines which prohibit such discharges in harbors, estuaries, and polar waters whether underway or not. EPA is proposing to apply this standard consistent with how the Agency assessed and applied other requirements in the proposed rule; namely, the proposed standard considers whether a vessel is in port, underway, or outside of the waters of the United States and the waters of the contiguous zone. Lastly, the proposed standard for EGR does not include the IMO guideline exception for oil content in EGR bleed-off water since the same oil content numeric discharge standard is already required separately in section 139.6 of the proposed rule for all incidental discharges.
Fire protection equipment includes all components used for fire protection including firemain systems, sprinkler systems, extinguishers, and firefighting agents such as foam. Firemain systems draw in water through the sea chest to supply water for fire hose stations, sprinkler systems, or firefighting foam distribution stations. Firemain systems can be pressurized or non-pressurized and are necessary to ensure the safety of the vessel and crew. The systems are also tested regularly to ensure that the system will be operational in an emergency. Additionally, firemain systems have numerous secondary purposes onboard vessels, such as for deck and equipment washdowns, machinery cooling water, and ballasting. However, whenever the firemain system is used for a secondary purpose, any resulting incidental discharge would be required to meet the proposed national standard of performance for secondary use (
Firefighting foams (fluorinated and non-fluorinated) can be added to a firemain system and mixed with seawater to address emergencies onboard a vessel. The constituents of firefighting foam can vary by manufacturer but can include persistent, bioaccumulative, toxic, and non-biodegradable ingredients. Discharges of firefighting foam can also contain phthalate, copper, nickel, and iron, which can be constituents in the composition of firemain piping. Fluorinated firefighting foam contains per- and poly-fluoroalkyl substances (PFAS) or their precursors; examples include aqueous film forming foam,
Consistent with the VGP, EPA is proposing requirements that apply to discharges from fire protection equipment during testing, training, maintenance, inspection, or certification. The proposed standard would not apply to the use of fire protection equipment in emergency situations or when compliance with such would compromise the safety of the vessel or life at sea (See section 139.1(b)(3)).
EPA proposes to prohibit any discharge from fire protection equipment during testing, training, maintenance, inspection, or certification in port with the exclusion of any USCG-required inspection or certification. EPA also proposes to prohibit the discharge of fluorinated firefighting foam during testing, training, maintenance, inspection, or certification with the exclusion of any USCG-required inspection or certification. Other options exist for testing, training, or maintenance such as testing without foam, collecting the foam such that it is not discharged, or, when foam is required, using a non-fluorinated foam (FFFC, 2020; NFPA, 2016). And according to the National Fire Protection Association (NFPA) there are many firefighting foams and training foams that are non-fluorinated that can be used for testing, training, and maintenance (FFFC, 2020; NFPA, 2016). However, the USCG has indicated that for certain USCG-required inspections and certifications discharges must occur in port and need to use fluorinated foams.
EPA also considered proposing more stringent requirements than the VGP in relation to the discharge of firefighting foam. Specifically, EPA explored proposing requirements that would include product substitution to use firefighting foams that do not contain bioaccumulative or toxic or hazardous materials. EPA has used product substitution for other technology-based rules such as those that apply to oil and gas. See 40 CFR part 435. As such, EPA considered, for the purposes of testing, training, maintenance, inspection or certification, also prohibiting the discharge of non-fluorinated firefighting foams that contain bioaccumulative or toxic or hazardous materials (as identified in 40 CFR 401.15 or defined in 49 CFR 171.8). Based on the
However, EPA was unable to compile adequate information on the availability and economic achievability considerations of using non-fluorinated foams that do not contain bioaccumulative or toxic or hazardous materials to justify proposing a requirement that would limit the types of non-fluorinated foams that could be used for testing, training, maintenance, inspection or certification. As such, EPA is soliciting feedback and additional information on the availability and economic achievability of expanding the prohibition on the discharge of firefighting foam to include non-fluorinated foam that contains bioaccumulative or toxic or hazardous materials. If it is found to meet the applicable statutory requirements, the final standard would prohibit the discharge of both fluorinated foams and non-fluorinated foams that contain bioaccumulative or toxic or hazardous materials during testing, training, maintenance, inspection or certification with the exception of USCG-required inspection and certification. Specifically, EPA is interested in feedback on: (1) The availability of non-fluorinated foams, training foams, or surrogate test liquids that do not contain bioaccumulative or toxic or hazardous materials that can satisfy firefighting testing, training, and maintenance needs, (2) the extent to which vessels are already using these alternative foams, (3) the extent to which vessels are already performing testing, training, and maintenance using only water, (4) the number of vessels and types of systems that are not able to use the water-equivalency method, (5) the extent to which the vessel community is collecting foam prior to discharge, (6) economic considerations associated with prohibiting the discharge of these types of non-fluorinated firefighting foams, and any other information that would support the Agency's determination of whether to expand the prohibition of the discharge of firefighting foams to include non-fluorinated foams that contain bioaccumulative or toxic or hazardous materials.
Finally, as discussed in VIII C.
Gas turbines are used on some vessels for propulsion and electricity generation. Occasionally, they must be cleaned to remove by-products that can accumulate and affect their operation. The by-products and cleaning products can include toxic and conventional pollutants including salts, lubricants, combustion residuals, naphthalene, and other hydrocarbons. Additionally, due to the nature of the materials being cleaned, there is a higher probability of heavy metal concentrations. Rates and concentrations of gas turbine wash water discharge vary according to the frequency of washdown and under most circumstances vessel operators can choose where and when to wash down gas turbines.
EPA endeavored to identify new technology and best management options for discharges from gas turbines; however, EPA did not identify any new technology since the development of the VGP. As such, EPA relied on the BPT/
As was required by the VGP, EPA proposes requirements that apply to discharges from the washing of gas turbine components. EPA proposes to prohibit the discharge of untreated gas turbine washwater unless determined to be infeasible.
Graywater is water drained or collected from showers, baths, sinks, and laundry facilities. Graywater discharges can contain bacteria, pathogens, oil and grease, detergent and soap residue, metals (
Many elements of the proposed standard, including certain BMPs, mirror those found in the VGP. For example, under the proposed General Operation and Maintenance standard the operators of all vessels are required to minimize the discharge of graywater. Minimization can include reducing the production of graywater, holding the graywater onboard, or using a reception facility. Additionally, as required by the VGP, minimally-toxic, phosphate-free, and biodegradable soaps, cleaners, and detergents must be used if they enter the graywater system. The proposed standard also requires vessels to minimize the introduction of kitchen oils and food and oil residue to the graywater system. Also, as would be required for all discharges in section 139.4(b)(2) of the proposed rule, vessels must discharge while underway when practical and as far from shore as practical. This storage requirement is particularly relevant for graywater as many vessels have graywater storage capabilities onboard that allow for graywater to be stored and either discharged to a reception facility or held until underway and as far from shore as practical.
For non-Great Lakes vessels, the numeric effluent requirements from the VGP have remained the same with one exception. The proposed standard does not include the percent removal requirements for BOD and TSS from the VGP. The percent removal requirement, which is based on secondary treatment regulations for domestic sewage, is not necessary for graywater discharges because there is greater ability to control the contribution of BOD and TSS onboard a vessel.
As in the VGP, EPA is not proposing graywater discharge standards for commercial vessels in the Great Lakes consistent with CWA Section 312(a)(6) that specifies the term “sewage,” with respect to commercial vessels on the Great Lakes, shall include graywater. As such, graywater discharges from commercial vessels on the Great Lakes are subject to the requirements in CWA Sections 312(a)-(m) and the implementing regulations at 40 CFR part 140 and 33 CFR part 159.
Non-commercial vessels operating on the Great Lakes may only discharge graywater if the discharge is treated such that it does not exceed 200 fecal coliform forming units per 100 milliliters and contains no more than 150 milligrams per liter of suspended solids. This is because the Agency determined that graywater treatment using an existing system meeting the 40 CFR part 140 standards represents the appropriate level of control for those vessels operating in the Great Lakes that do not hold their graywater for onshore disposal. Hence, either treatment devices or adequate holding capacity are available and used for managing graywater from vessels operating on the Great Lakes.
As in the VGP, the numeric discharge standard would apply to the discharge from any passenger vessel with overnight accommodations for 500 or more passengers (identified as a “large cruise ship” in the VGP), as well as any passenger vessel with overnight accommodations for 100-499 passengers (identified as a “medium cruise ship” in the VGP) unless the vessel was constructed before December 19, 2008 and does not voyage beyond 1 NM from shore, such as is often the situation for older river cruise vessels.
In preparing the proposed standard, EPA endeavored to identify new technology and BMPs for graywater discharges or applicability of existing technologies and practices to different classes of vessels than had been subject to similar requirements in the VGP. Hereafter, this section describes proposed requirements for graywater systems that are new or modified from the VGP. First, EPA proposes to prohibit the discharge of graywater within 3 NM from shore for any vessel that voyages at least 3 NM from shore and has remaining available graywater storage capacity, unless the discharge meets the standards in section 139.21(f) of the proposed rule. Similarly, EPA proposes to prohibit the discharge of graywater within 1 NM from shore from any vessel that voyages at least 1 NM but not more than 3 NM from shore and has remaining available graywater storage capacity, unless the discharge meets the standards in section 139.21(f) of the proposed rule. Also, EPA is proposing that the discharge of graywater from any new vessel of 400 gross tonnage (GT ITC) and above, and any new ferry authorized by the USCG to carry 250 or more people would be required to meet the numeric discharge standard in section 139.21(f) of the proposed rule. Such vessels could be equipped either with a treatment system or sufficient storage capacity to retain all graywater onboard while operating in waters subject to the proposed rule. The costs of these proposed requirements as compared to those in the VGP are described in the regulatory impact analysis for the proposed rule. EPA expects these new requirements would reduce the discharge of various pollutants without a significant increase in compliance costs. EPA believes the proposed standard, while more stringent than existing requirements under the VGP, is appropriate and has been demonstrated to be technologically available and economically achievable. Based on VGP reporting data, between one-third and one-half of manned vessels of 400 GT ITC or above that are not cruise ships or ferries are equipped with a treatment system for graywater, graywater mixed with sewage, or a combined treatment system that may treat graywater. As such, the data for existing vessels indicate that it is an appropriate requirement for new build vessels in this category to install a treatment system or storage capacity. EPA expects that vessels built with storage capacity may be serviced by stationary and mobile (
Additionally, as required by the VGP, EPA proposes additional controls for discharges of graywater for vessels operating in federally-protected waters as discussed in VIII C.
In evaluating options for graywater treatment, EPA reaffirmed that treatment of commingled graywater and sewage by an “advanced wastewater treatment system (AWTS),” a sophisticated marine sanitation device, produces significant constituent reductions in the resulting effluent. AWTS differ from traditional treatment systems in that they generally employ enhanced methods for treatment, solids separation, and disinfection, such as through the use of membrane technologies and UV disinfection. AWTS are currently in wide use and economically achievable for certain vessel classes. For example, the Cruise Lines International Association (2019) reports that 68 percent of member lines' global fleet capacity is currently served by AWTS. Also, all new ships on order by member lines will be equipped with AWTS. In Alaska, under the existing “Large Cruise Ship General Permit,” certain large commercial passenger vessels may only discharge wastewater (including sewage and graywater) that has been treated by an AWTS or equivalent system. As such, the numeric discharge standard included in the proposed standard, which was also present in the VGP, is based on the performance of these treatment systems.
The proposed time period for the application of the numeric discharge standard for graywater differs from that presented earlier for ballast tanks. For graywater systems, EPA proposes a monthly average numeric discharge standard, a commonly used metric for establishing numeric effluent discharge limits. While daily maximums are also frequently used, EPA is not proposing to include daily maximums in the standard. Monitoring discharges onboard a vessel presents unique challenges compared to monitoring discharges from land-based facilities for which numeric effluent discharge limits are typically established. For ballast tanks, however, EPA proposes the use of instantaneous maximums. As indicated in the ballast tanks section, the challenges associated with collecting and testing representative samples of ballast water at the time of discharge required a different approach. Systems that are designed to meet an instantaneous maximum require a higher level of control, and therefore less variability, in the system. Since the discharge of ballast water carries the risk of establishing ANS, the use of an instantaneous maximum is preferred over the use of a long-term average where the upper bounds of variability in the discharge may be problematic.
Graywater discharges, on the other hand, do not carry the same level of risk. As such, the numeric discharge standard proposed in section 139.21(f) uses monthly averages to allow for the variability that is expected in a well-operated treatment system. At the same time, the monthly averages require the vessel operator to remain vigilant to ensure that, despite this variability, discharges consistently meet the numeric limit. Vessels to which the standard applies would be expected to operate treatment systems that can consistently achieve compliance with the monthly average based on the vessel's expected loadings. Pursuant to the general operation and maintenance standards of the proposed rule, vessels are expected to discharge while underway when practical and as far from shore as practical. This encourages commingling of the graywater constituents and further decreases the risks associated with variability in the system. EPA recognizes that the option to install AWTS or sufficient holding capacity may be unavailable for certain vessels for such reasons as cost, stability of the vessel, or space constraints. As such, EPA does not propose that all vessels be required to treat graywater discharges to the limits found in section 139.21(f) of the proposed rule.
Vessel hulls are often coated with antifouling compounds to prevent or inhibit the attachment and growth of biofouling organisms. Selection, application, and maintenance of an appropriate coating type and thickness according to vessel profile is critical to effective biofouling management, and therefore preventing the introduction and spread of ANS from the vessel hull and associated niche areas. Multiple types of coatings are available for use, including hard, controlled depletion or ablative, self-polishing copolymer, and fouling release coatings. Coatings may employ physical, biological, chemical, or a combination of controls to reduce biofouling. Those that contain biocides prevent the attachment of biofouling organisms to the vessel surface by continuously leaching substances that are toxic to aquatic life. The most commonly used biocide is copper. Manufacturers may also combine copper with other biocides, often termed “booster biocides,” to increase the effectiveness of the coating. Cleaning the coating results in pulses of biocide into the environment, particularly if surfaces are cleaned within the first 90 days following application.
The proposed rule would require that the selection of a coating for the hull and associated equipment must be specific to the vessel's operational profile, including biocidal coatings, that have effective biocide release rates and components that are biodegradable once separated from the vessel surface. Operational profile factors can influence biofouling rates and include the vessel speed during a typical voyage, aquatic environments traversed, type of surface painted, typical water flow for any hull and niche areas, planned periods between drydock, and expected periods of inactivity or idleness. Generally, an optimal biocide will have broad spectrum activity, low mammalian toxicity, low water solubility, no bioaccumulation up the food chain, no persistence in the environment, and compatibility with raw materials (IMO, 2002). EPA is aware that non-biocidal coatings are available, and vessels that typically operate at high speeds may effectively manage biofouling with fouling release coatings. Additionally, vessels traveling in waters with lower biofouling pressure and those that spend less time at dock are expected to have a lower biofouling rate and should select either non-biocidal coating or coatings with low biocide discharge rates. However, these coatings may not be suitable for all operational profiles.
Adhering to manufacturer specifications is necessary to ensure the longevity and effectiveness of the coating and is considered best practice. If a coating is not properly selected, applied, or maintained, it will likely show signs of deterioration, such as indications of excessive cleaning actions (
The International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS Convention) was adopted in 2001 and came into force in 2008. The United States became a contracting party to the AFS Convention on November 21, 2012. Domestically, the Clean Hull Act of 2009 implements the requirements of the AFS Convention. Consistent with the AFS Convention, the Clean Hull Act, and the VGP, the proposed rule reaffirms that coatings on vessel hulls must not contain TBT or any other organotin compound used as a biocide. Additionally, the proposed rule states that any vessel hull previously applied with a hull coating containing TBT (whether or not used as a biocide) or any other organotin compound (if used as a biocide) must either maintain an effective overcoat on the vessel hull so that no TBT or other organotin leaches from the vessel hull or remove any TBT or other organotin compound from the vessel hull. EPA is unaware of any non-biocidal use of TBT which would result in a residual presence in antifouling paints; therefore, EPA reaffirms a zero-discharge standard of TBT from vessel hulls. EPA expects that few, if any, vessels have exposed TBT coatings on their hulls and that a zero-discharge standard for all organotin compounds, including TBT, is technologically achievable based on the availability of other antifouling coating options. This standard is also economically achievable because few, if any, vessels still use TBT as an antifoulant.
Other less toxic organotin compounds such as dibutyltin oxide are used in small quantities as catalysts in some biocide-free coatings. One class of biocidal-free coatings, which are sometimes referred to as fouling release coatings, produce a non-stick surface to which fouling organisms cannot firmly adhere. To function properly, the coating surface must remain smooth, intact, and not leach into the surrounding water. Because these less toxic organotins are used as a catalyst in the production of biocide-free coatings, such production may result in trace amounts of organotin in antifouling coatings. Consistent with the AFS Convention, the Clean Hull Act, and the VGP, EPA proposed rule would authorize the use of non-biocidal coatings that contain trace amounts of catalytic organotin (other than TBT) if the trace amounts of organotin are not used as a biocide. When used as a catalyst, EPA proposed rule states that an organotin compound must contain less than 2,500 mg total tin per kilogram of dry paint and must not be designed to slough or otherwise peel from the vessel hull, noting that incidental amounts of a coating discharged by abrasion during cleaning or after contact with other hard surfaces (
Cybutryne, commonly known as Irgarol 1051, is a biocide that functions by inhibiting the electron transport mechanism in algae, thus inhibiting growth. There are numerous commercially-available antifoulants that are similar in cost and have a much lower negative impact on the aquatic environment (IMO, 2018). Restrictions on cybutryne are already in place in a number of countries globally, and cybutryne is therefore less widely used in comparison to other antifoulants (IMO, 2017). Coatings that do not contain cybutryne are both technologically available and economically achievable. Therefore, EPA proposes to prohibit the application of cybutryne-containing coatings on hulls and niche areas. In cases where cybutryne coatings have been applied previously to a vessel, EPA proposes an effective overcoat must be applied and maintained so that no cybutryne leaches from the vessel hull, noting that incidental amounts of coating discharged by abrasion during cleaning or after contact with the other hard surfaces are acceptable. EPA is aware that overcoats are commercially available.
Copper, primarily in the form of cuprous oxide, is the most common biocide in antifouling coatings, accounting for approximately ninety percent of the volume of sales of specialty antifouling biocides in the United States (U.S. EPA, 2018). Copper is a broad-spectrum biocide that effectively prevents both micro- and macrofouling. Copper is considered less harmful to the aquatic environment than TBT-containing compounds, but its use has nevertheless contributed to loadings in copper-impaired waters. Consistent with the VGP, EPA proposes to require that, as appropriate based on vessel class and operations, alternatives to copper-based coatings be considered for vessels spending 30 or more days per year in copper-impaired waters or using these waters as their home port. However, despite the potential impacts of copper-based coatings, there is a concern that replacement of copper with other biocides may cause different, and potentially more harmful, environmental impacts. EPA determined that there are no direct substitutions for copper as a biocide that are as affordable or as effective, without posing similar risks to non-target aquatic species (U.S. EPA, 2018). As such, EPA is not proposing to require the selection of an alternative antifouling coating to copper antifouling coating for vessels.
The significance of the discharges from a biocidal coating depends not only on the substance used, but also on the “leaching rate” of the biocide (IMO, 2009). In other words, the rate of discharge or entry into the environment from the coating itself. While the rate at which copper leaches from coatings is relatively slow (average discharge rates range from 3.8-22 μg/cm
Most commercial vessels are required to undertake periodic hull surveys as part of International Association of Classification Societies rules and in accordance with IMO conventions. Whenever possible, EPA suggests that drydock cleaning is the preferred BMP to in-water hull and niche cleaning. Drydock schedules should be factored
EPA recognizes that in many instances it is not technologically available or economically achievable for a vessel to be drydocked outside of the regular schedule to clean biofouling from the hull or niche areas. Some vessels are too large to be regularly removed from the water, and any repair or maintenance required on the hull or niches must occur while the vessel is pier-side between drydockings. Therefore, EPA believes the Act does not require the prohibition of in-water cleaning at this time. In-water cleaning that is conducted as a preventative measure can be an important component of biofouling management. Preventative in-water cleaning is the frequent, gentle cleaning of the vessel hull and appendages to prevent the growth of biofouling organisms, with minimal impacts to the antifouling system. However, EPA also recognizes that there may be places where in-water cleaning should not occur, notably in federally-protected waters, based on the unique resources present in those areas.
Studies have estimated that even a biofilm can increase the drag on a vessel by up to 25 percent (Townsin, 2003; Schultz, 2007). Predictive analytics have shown that frequent cleaning reduces fuel consumption and that increasing cleaning to an interval of approximately six months can save hundreds of thousands of dollars per vessel in fuel costs (Marr, 2017). Therefore, conducting preventative cleaning can reduce drag, enhance operations, and reduce the discharge of ANS. Additionally, preventative cleaning has been shown to effectively reduce biofouling without significantly increasing biocide loading into the aquatic environment (Tribou and Swain, 2017). In contrast, macrofouling requires more abrasive removal techniques, which may damage the antifouling coating, resulting in a higher tendency for subsequent biofouling as well as a larger pulse of biocides and particles into the aquatic environment. Additionally, macrofouling (FR >20) is composed of more diverse and mature organisms and, depending on geographic origin, may present a greater risk of discharging ANS than a slime layer.
The VGP required that vessel owners/operators minimize the transport of attached living organisms when traveling into U.S. waters from outside the Economic Exclusive Zone or between COTP Zones using techniques such as selecting and maintaining an appropriate anti-fouling management system; in water inspections, cleaning, and maintenance of hulls; and thorough hull and niche area cleaning when the vessel is in drydock. The VGP also required that vessel owners/operators who remove biofouling organisms from hulls while the vessel is waterborne employ methods that minimize the discharge of fouling organisms and antifouling coatings. Such methods include the use of appropriate cleaning brush or sponge rigidity to minimize removal of antifouling coatings and biocide releases into the water column; limiting the use of hard brushes and surfaces for the removal of hard growth; and when available and feasible, use of a vacuum or other control technology to minimize the release or dispersion of antifouling coatings and fouling organisms into the water column. The VGP also prohibited the in-water cleaning of hulls coated with copper-based anti-fouling paints in copper-impaired waters within the first 365 days after paint application unless there is a significant visible indication of hull fouling.
Consistent with the VGP, EPA is proposing that vessel hulls and niche areas must be cleaned regularly to minimize biofouling (
Additionally, consistent with the VGP, the proposed rule would also require that the cleaning methods used cause no or minimal damage to the underlying coating, ensuring that the coating is not degraded and the release of biocide into the aquatic environment is minimized. These requirements are considered best practice and would ensure the longevity and effectiveness of the coating and minimize the pollutant loading into the surrounding environment.
EPA is also proposing to prohibit in-water cleaning of biofouling that exceeds a fouling rating of FR-20, except in the following two circumstances: (1) When the fouling is local in origin and cleaning does not result in the substantial removal of a biocidal antifouling coating, as indicated by a plume or cloud of paint; or (2) when an in-water cleaning and capture (IWCC) system is used that is designed and operated to capture coatings and biofouling organisms; filter biofouling organisms from the effluent, and minimize the release of biocides. Pursuant to this proposed standard, fouling is considered to be local if a vessel follows a `clean-before-you-go' strategy, whereby in-water cleaning is conducted prior to leaving a port on fouling accumulated in that port. If IWCC systems are used, discharge of any wastes filtered or otherwise removed from the system is prohibited. Also, understanding that IWCC systems may not be available in many ports, EPA recommends, but does not propose to require, the use of IWCC systems for removal of local macrofouling.
IWCC systems reduce the discharge of fouling organisms and coating particles into the surrounding environment, and allow solids removed from the vessel hulls to be collected and disposed of onshore. Cleaning of hulls and niche areas, such as with IWCC systems, is necessary for vessel maintenance, and therefore the discharge of treated or filtered effluent from these systems is considered incidental to the normal operation of a vessel and authorized under the VIDA. IWCC discharges result “from a protective, preservative . . . application to the hull of the vessel” (33 U.S.C. 1322(a)(12)(A)(i)). Vessels following effective biofouling management strategies generally should be able to maintain fouling at or below an advanced slime layer. Therefore, use of such IWCC systems would primarily occur either to remove fouling that is local in origin (
In line with the VGP, EPA is also proposing to minimize discharges of copper to aquatic ecosystems by restricting the in-water cleaning of vessels coated with copper-based antifouling paints in copper-impaired waters within the first 365 days after paint application. The proposed rule would allow in-water cleaning of copper-based coatings in copper-impaired waters within the 365 days following application only in circumstances when an IWCC system consistent with the aforementioned specifications is used. EPA understands that biocidal coatings are generally designed to remain free of fouling for the 365 days after application, prior to requiring in-water hull cleaning. Additionally, the majority of copper-impaired waters within the United States are streams, creeks, and rivers which generally have lower fouling pressure in comparison to warmer, marine waterbodies, and therefore vessels primarily operating in these waters would likely not require cleaning within the 365 days following application of the coating. For vessels operating in the few copper-impaired areas of coastal waterbodies in the United States, there remains the option to either conduct cleaning at a nearby, non-impaired port or to employ the use of an IWCC system as described above. Although it is unlikely that a vessel with a copper-based coating will have to clean within a copper-impaired water during the 365 days following application, EPA has further determined that there are alternatives to copper-based coatings that are available for use, which, over the coating lifespan would result in costs comparable to copper-based coatings.
Additionally, EPA proposes to prohibit in-water cleaning on any section of a biocidal antifouling coating which has shown significant deterioration since the most recent application of the coating. Such a level of deterioration indicates failure at the anticorrosive/antifouling interface which can result in a soft blister that is more likely to be broken by cleaning. Cleaning of paint that has reached this level may cause rupturing of paint blisters, which not only results in discharges of coating particles, but also increases the rate of damage to the anti-fouling system more generally. In turn, the exposed surface is subject to increased fouling and risk of corrosion. EPA expects that an antifouling system selected in accordance with the vessel's operating profile, and cleaned with minimally abrasive cleaning methods, should not present signs of significant deterioration at the anticorrosive/antifouling interface, therefore adherence to this standard is achievable by following the coating and cleaning practices in the proposed guidelines.
Consistent with proposed requirements for detergents used for deck washdown in this proposed rule and the VGP, EPA proposes that cleaning agents used on vessel surfaces that maintain direct contact with ambient waters, such as the scum lines of the hull, must be minimally-toxic, phosphate-free, and biodegradable. Finally, as proposed in section 139.40, EPA proposes additional controls for discharges from in-water cleaning when vessels are operating in federally-protected waters.
Inert gas is used on tankers for several reasons, with one of the primary uses being to control the oxygen levels in the atmosphere in the cargo and ballast tanks to prevent explosion and suppress flammability. Inert gas system discharges consist of scrubber washwater and water from deck water seals when used as an integral part of the inert gas system.
EPA endeavored to identify new technology and best management options for inert gas system discharges; however, EPA did not identify any new technology since the development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements and is proposing to require substantively the same standard of performance required by the VGP.
As required by the VGP, EPA proposes that all inert gas scrubber washwater and water from deck seals must meet all of the requirements identified in the general discharge standards, and notably, requirements for oily discharges, including requirements set forth in MARPOL Annex I, EPA oil regulations, and USCG oil regulations as appropriate for the vessel.
Motor gasoline and compensating discharge is the discharge of seawater that is taken into motor gasoline tanks to replace the weight of fuel as it is used and eliminate free space where vapors could accumulate. The compensating system is used for fuel tanks to supply pressure for the gasoline and to keep the tank full to prevent potentially explosive gasoline vapors from forming. The seawater is discharged when the vessel refills the tanks with gasoline or when performing maintenance. The discharge can contain both toxic and conventional pollutants including residual oils or traces of gasoline constituents, which can include alkanes, alkenes, aromatics (
EPA endeavored to identify new technology and best management options for motor gasoline and compensating discharges; however, EPA did not identify any new technology since the development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements and is proposing to require substantively the same standard of performance required by the VGP.
As required by the VGP, EPA proposes that all motor gasoline and compensating discharge must meet the requirements identified in the general
Finally, as discussed in VIII C.
Non-oily machinery wastewater is the combined wastewater from the operation of distilling plants, water chillers, valve packings, water piping, low- and high-pressure air compressors, propulsion engine jacket coolers, fire pumps, and seawater and potable water pumps. Non-oily machinery wastewater systems are intended to keep wastewater from machinery that does not contain oil separate from wastewater that has oil content. Non-oily machinery wastewater discharge rates vary by vessel size and operation type, ranging from 100 to 4,000 gallons per hour. Constituents of non-oily machinery wastewater discharge can include a suite of conventional and nonconventional pollutants including metals and organics.
EPA endeavored to identify new technology and best management options for discharges of non-oily machinery wastewater; however, EPA did not identify any new technology since the development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements and is proposing to require substantively the same standard of performance required by the VGP.
As required by the VGP, EPA proposes that the discharge of untreated non-oily wastewater and packing gland or stuffing box effluent that contains toxic or bioaccumulative additives or the discharge of oil in such quantities as may be harmful is prohibited.
Cruise ships and other vessels occasionally have pools or spas onboard that use water treated with chlorine or bromine as a disinfectant. When pools or spas are drained, the water is discharged overboard or sent to an advanced wastewater treatment system. The discharge water can contain nonconventional pollutants such as bromine and chlorine.
EPA endeavored to identify new technology and best management options for pool and spa wastewater; however, EPA did not identify any new technology since the development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements and is proposing substantively similar requirements as the VGP. EPA determined the dechlorination limits by using those established for ballast water treatment systems and by evaluating comments submitted by the public on the 2008 and 2013 VGPs that indicated such limits are achievable. Furthermore, the proposed numeric discharge standard is consistent with common dechlorination limits from shore-based sewage treatment facilities.
The proposed standard would require vessel operators to discharge while underway and dechlorinate and/or debrominate any pool or spa water, except for unintentional or inadvertent releases from overflows across the decks and into overboard drains, prior to discharging overboard. To be considered dechlorinated, the total residual chlorine in the pool or spa effluent must be less than 100µg/L. To be considered debrominated, the total residual oxidant in the pool or spa effluent must be less than 25µg/L. Additionally, the proposed standard would require the discharge of pool and spa water overboard to occur while the vessel is underway unless determined infeasible by the Secretary.
Finally, as discussed in VIII C.
Condensation from cold refrigeration or evaporator coils of air conditioning systems drips from the coils and collects in drip troughs which typically channel to a drainage system. The condensate discharge may contain toxic, conventional, and nonconventional pollutants including detergents, seawater, food residue, and trace metals. This waste stream can easily be segregated from oily wastes, and toxic or hazardous materials and safely discharged, channeled, or collected for temporary holding until disposed of onshore or drained to the bilge.
EPA endeavored to identify new technology and best management options for refrigeration and air conditioning condensate; however, EPA did not identify any new technology or management options since the development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements and is proposing substantively similar requirements as the VGP.
As required by the VGP, EPA proposes to prohibit the discharge of refrigeration and air conditioning condensate directly overboard that contacts toxic or hazardous materials.
Seawater piping systems, including sea chests and grates, are a niche area that have the potential to harbor and discharge a large quantity of ANS, which are a nonconventional pollutant. Niche areas represent a challenge for biofouling management as they are generally more difficult to access and are protected from hydrodynamic forces, facilitating the accumulation and survivorship of fouling organisms. Niche areas account for approximately 10 percent of the total wetted surface area of a vessel (Moser et al., 2017). However, over 80 percent of species sampled in vessel biofouling studies were found in niche areas (Bell et al., 2011). Therefore, while the relative surface area of niche areas in proportion to the hull may be low, the risk of such areas contributing to the discharge of ANS is significant. Additionally, seawater piping systems on commercial vessels may provide water uptake for firefighting response, engine cooling, and ballast water. Ensuring that these systems are unobstructed from macrofouling organisms is vital to ship operations, including the structural integrity of the vessel and the safety of the crew.
The VGP required vessel owners/operators to remove fouling organisms from seawater piping on a regular basis and dispose of removed substances in accordance with local, state, and federal regulations. The VGP also prohibited the discharge of removed fouling organisms into regulated waters. Additionally, the VGP required a drydock inspection report noting that the sea chest and other surface and niche areas of the vessel have been inspected for attached living organisms, and those organisms have been removed or neutralized.
EPA proposes any vessel with a seawater piping system (sea chests, grates, and any sea-piping) that accumulates biofouling that exceeds a fouling rating of FR-20 must be fitted with a Marine Growth Prevention System (MGPS).
The most common MGPS for seawater includes sacrificial anodic copper systems and chlorine-based dosing systems. Such systems are already widely in use and available. EPA
An MGPS can vary widely in operational characteristics and placement suitability. EPA proposes that the MGPS selection must consider the level, frequency, and type of expected biofouling and the design, location, and area in which the system will be used. For example, it has been suggested that an MGPS installed in the sea chest provides protection to both the sea chest and internal pipework, while one installed in the strainer may only protect the internal pipework. Furthermore, anti-fouling coating selection and application should be appropriate to the material of the piping and level of waterflow to which the coated area is subjected. Based on the potential differences in profile of the coated areas, the coating applied to a seawater system may be different from the coating applied to the vessel hull. EPA recommends that the MGPS should be selected, installed, and maintained according to the manufacturer specifications.
Upon identification that biofouling exceeds a level of FR-20 despite preventative measures, then reactive measures must be used to remove biofouling. Such measures can include freshwater flushing or chemical dosing. For example, vessels that use seawater cooling systems to condense low pressure steam from propulsion plants or generator turbines already practice freshwater flushing as a means of removing biofouling. However, discharges resulting from reactive measures to remove macrofouling are prohibited in port.
When these vessels are in port for more than a few days, the main steam plant is shut down and does not circulate. This can cause an accumulation of biological growth within the system; consequently, a freshwater layup is carried-out by flushing the seawater in the system with potable or surrounding freshwater (
Seawater piping discharges also include non-contact engine cooling water, hydraulic system cooling water, refrigeration cooling water, and freshwater lay-up wastewater. Such systems use ambient water to absorb the heat from heat exchangers, propulsion systems, and mechanical auxiliary systems. The water is typically circulated through an enclosed system that does not come in direct contact with machinery, but still may contain sediment from water intake, traces of hydraulic or lubricating oils, and trace metals leached or eroded from the pipes within the system. Additionally, because it is used for cooling, the effluent will have an increased temperature. Cooling water can reach high temperatures with the thermal difference between seawater intake and discharge typically ranging from 5 °C to 25 °C, with maximum temperatures reaching 140 °C. EPA is aware that use of shore-power may reduce the discharges of seawater from cooling system; however, EPA recognizes that shore-power may not be available in many locations, may not be sufficient for the electricity needs of the vessel, and may not be compatible with the vessel's systems. Therefore, currently, EPA is not proposing to require the use of shore-power to reduce thermal discharges from seawater piping systems.
Sonar dome discharge consists of leachate from anti-fouling materials into the surrounding seawater and the discharge of seawater or freshwater retained within the sonar dome. Sonar domes house detection, navigation, and ranging equipment and are filled with water to maintain their shape and pressure. They are typically found on research vessels but may occur on other vessel classes. Sonar dome discharge occasionally occurs when the water in the dome is drained for maintenance or repair; discharge rates are estimated to range from 300 to 74,000 gallons from inside the sonar dome for each repair event. This discharge from inside the dome may include toxic pollutants including zinc, copper, nickel, and epoxy paints. Additionally, discharge occurs when materials leach from the exterior of the dome. Components that may leach into surrounding waters include antifouling agents, plastic, iron and rubber.
EPA endeavored to identify new technology and best management options for sonar domes; however, EPA did not identify any new technology or management options since the development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis that led to the development of the VGP requirements and is proposing to require substantively the same standard of performance required by the VGP.
EPA proposes to prohibit the discharge of water during maintenance or repair from inside the sonar domes. Additionally, the proposed standard would prohibit the use of bioaccumulative biocides when non-bioaccumulative alternatives are available.
The VIDA, in CWA Section 312(p)(4)(B)(iii), specifies that EPA must propose national standards of performance that are no less stringent than the VGP requirements relating to effluent limits and related requirements, including with respect to waters subject to Federal protection, in whole or in part, for conservation purposes (with limited exemptions for new information or to correct mistakes or misinterpretations made in previous requirements in the VGP). Therefore, EPA proposes to prohibit or limit discharges in federally-protected waters consistent with the VGP requirements established for “waters federally-protected for conservation purposes.” EPA proposes that the designated federally-protected waters for this rulemaking consist of the areas of waters listed in Appendix G of the VGP (National Marine Sanctuaries, Marine National Monuments, National Parks, National Wildlife Refuges, National Wilderness Areas, or parts of the National Wild and Scenic Rivers System) plus any additional individual waters that have been added to these nationally-recognized waters since the establishment of the VGP Appendix G; this updated list of waters is proposed in Appendix A of Part 139 in this rulemaking. Federally-protected waters are likely to be of high quality and consist of unique ecosystems which may include distinctive species of aquatic animals and plants. Furthermore, as protected areas, these waters are more likely to have a greater abundance of sensitive species of plants and animals that may have trouble
To develop the list of applicable “federally-protected waters,” for the VGP, EPA reviewed several federal authorities that protect waters that are known to be of high value or sensitive to environmental impacts, such as those administered by the Bureau of Land Management (BLM), the National Park Service (NPS), the United States Fish and Wildlife Service (FWS), the Forest Service (USFS), and the National Oceanic and Atmospheric Administration (NOAA). These areas, identified in Appendix G of the VGP, include:
• National Marine Sanctuaries—as designated under the National Marine Sanctuaries Act (16 U.S.C. 1431
• Marine National Monuments—as designated by presidential proclamation under the Antiquities Act of 1906 (54 U.S.C. 320301 et seq). Maps and a list of marine national monuments are currently available at
• National Parks (including National Preserves and National Monuments)—as designated under the National Park Service Organic Act, as amended (54 U.S.C. 100101
• National Wildlife Refuges (including Wetland Management Districts, Waterfowl Production Areas, National Game Preserves, Wildlife Management Area, and National Fish and Wildlife Refuges)—as designated under the National Wildlife Refuge System Administration Act of 1966 as amended by the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd et seq). Maps and a list of national wildlife refuges are currently available at
• National Wilderness Areas—as designated under the Wilderness Act of 1964 (16 U.S.C. 1131 et seq). Section 4(c) of the Wilderness Act strictly prohibits motorized vehicles, vessels, aircrafts or equipment for the purposes of transport of any kind within the boundaries of all wilderness areas (16 U.S.C. 1133(c)). Exceptions to this Act include motorized vehicle use for the purposes of gathering information on minerals or other resources; for the purposes of controlling fire, insects, or disease; and in wilderness areas where aircraft or motorized boat use have already been established prior to 1964. Maps and a list of national wilderness areas are available at
EPA does not propose to include Outstanding National Resource Waters (ONRWs) on the list of federally-protected waters in this proposed rule as these are State or Tribal water quality-based designations under the antidegradation policy of the CWA. CWA Section 312(p)(9) establishes state authorities under the VIDA and CWA Section 312(p)(10) establishes specific regional requirements and neither section includes nor references the ONRWs established under the VGP.
As required by the VGP, EPA proposes to include discharge requirements for vessels operating in federally-protected waters as designated in Appendix A. These requirements are in addition to any applicable general or specific discharge requirements in Subparts B and C of the proposed rule. The following paragraphs describe the additional discharge requirements established when a vessel is operating in federally-protected waters.
Additionally, EPA proposes to include several new or modified discharge requirements for vessels operating in federally-protected waters. EPA proposes that these additional requirements are technologically available because the waters that are “federally protected” waters are limited and thus vessels are able to operate without discharging in these protected waters. For example, a vessel traveling through the Florida Keys National Marine Sanctuary can ordinarily wait to discharge accumulated water and sediment from any chain locker or chemically-dosed seawater piping until no longer in those federally-protected waters. EPA proposes that the requirement is economically achievable because EPA does not have any information indicating that vessels undertaking an activity such as holding would incur costs.
EPA specifically solicits comment on the use of the VGP's Appendix G water areas and more specifically the list of waters in Appendix A as the proposed static list of federally-protected waters, including whether specific designations of waters should be added to or excluded from the proposed list. EPA also specifically solicits comments on the additional discharge requirements proposed for vessels operating in federally-protected waters.
EPA proposes to exclude fish hold effluent and small boat engine wet exhaust as independent discharges incidental to the normal operation of a vessel under the proposed rule.
Fish hold is the area where fish are kept once caught and kept fresh during the remainder of the vessel's voyage before being offloaded to shore or another tender vessel. The fish hold is typically a refrigerated seawater holding tank, where the fish are kept cool by mechanical refrigeration or ice. With the exception of ballast water, CWA Section 312(p)(2)(B)(i)(III) excludes from these proposed regulations discharges incidental to the normal operation of a fishing vessel; therefore, EPA proposes that although this discharge was included in the VGP, it should not be a discharge incidental to the normal operation of a vessel subject to these regulations.
Small boat engines use ambient water that is injected into the exhaust for cooling and noise reduction purposes. Similar to fishing vessels, with the exception of ballast water, CWA Section 312(p)(2)(B)(i)(III) excludes from these proposed regulations discharges incidental to the normal operation of a vessel less than 79 feet; therefore, EPA proposes that although this discharge was included in the VGP, it should not be a discharge incidental to the normal operation of a vessel subject to these regulations.
Under CWA Section 312(p)(7)(A), a Governor of a state may submit a petition to the Administrator to issue an emergency order or to review any standard of performance, regulation, or policy if there exists new information that could reasonably result in a change. A petition must be signed by the Governor (or a designee) and must include the purpose of the petition (request for emergency order or to review of any standard of performance, regulation, or policy); any applicable scientific or technical information that forms the basis of the petition; and the direct and indirect benefits if the requested petition were to be granted by the Administrator. The Administrator shall grant or deny the petition and either issue the relevant emergency order or submit a Notice of Proposed Rulemaking to the
EPA specifically solicits comment on the proposed process for Governors to solicit the issuance of an emergency order or to review any standard of performance, regulation of policy, including whether a more detailed process should be developed.
CWA Section 312(p)(10)(B) creates a process for establishing enhanced federal standards or requirements to apply within the Great Lakes System in lieu of any comparable standards or requirements promulgated under CWA Section 312(p)(4)-(5). Any Governor of a Great Lakes State (or the Governor's designee) may initiate the process by submitting a petition for an enhanced standard to the other Great Lakes States Governors, as well as the as the Executive Director of the Great Lakes Commission and the Director of EPA's Great Lakes National Program Office. The petition must seek the endorsement of fellow governors for an enhanced standard of performance or other requirement with respect to any discharge that is subject to regulation under CWA Section 312(p) that occurs in the Great Lakes System. A petition shall include an explanation regarding why the applicable standard of performance or other requirement is at least as stringent as a comparable standard of performance or other requirement in the final rule; in accordance with maritime safety; and in accordance with applicable maritime and navigation laws and regulations. After involving the Great Lakes Commission, the requisite number of Governors may jointly submit to the Administrator and the Secretary an endorsement of a proposed standard of performance or other requirement to apply within the Great Lakes System.
Upon receipt of the proposed standard of performance or requirement from a Great Lakes Governor, the Administrator shall submit, after consultation with the USCG, a notice to the
EPA specifically solicits comment on the process to request enhanced Great Lakes system requirements, including the extent to which EPA should provide further details in the final rule considering the details already included in the VIDA.
Under CWA Section 312(p) states have an opportunity to apply to EPA to prohibit one or more discharges incidental to the normal operation of a vessel, whether treated or not, into specified waters, if the state determines that the protection and enhancement of the quality of some or all of its waters require greater environmental protection.
Pursuant to CWA Section 312(p)(10)(D)(iii)(I), a discharge prohibition established by EPA through regulation would not apply until after the Administrator reviews the state application, makes a determination with concurrence from the USCG, publishes a proposed rule for comment, and publishes a regulation establishing that (1) the prohibition would protect and enhance the quality of the specified waters; (2) adequate facilities for the safe and sanitary removal of the discharge incidental to the normal operation of a vessel are reasonably available for the waters to which the prohibition would apply; and (3) the discharge can safely be collected and stored until a vessel reaches a discharge facility or other location. If the no-discharge zone concerns ballast water discharges regulated under CWA Section 312(p), then the Administrator must also determine that adequate facilities are reasonably available after considering at a minimum water depth, dock size, pumpout capacity and flow rate, availability of year round operations, proximity to navigational routes, the ratio of pumpout facilities to vessels in operation in those specified waters. The VIDA also provides that the prohibition for ballast water discharges will not unreasonably interfere with the safe loading and unloading of cargo, passengers, or fuel.
EPA proposes that a state application for such a prohibition must include (i) a signature by the Governor; (ii) a certification that the protection and enhancement of the waters for which the state is seeking a prohibition require greater environmental protection than the applicable national standard of performance provides; (iii) a detailed analysis of how the requested prohibition for each individual discharge requested will protect the waters for which the state is seeking a prohibition; (iv) a table identifying types and number of vessels operating in the waterbody and a table identifying the types and number of vessels that will be the subject of the prohibition; (v) a map detailing the location, operating hours, draught requirements, and service capabilities of commercial and recreational pump-out facilities (both mobile and stationary) available to receive each individual discharge in the waters for which the state is seeking a prohibition; (vi) a table identifying the location and geographic area of each proposed no-discharge zone; and (vii) a detailed analysis of how the vessels subject to the prohibition may be impacted with regards to collection capability, storage capability, need for retrofitting, travel time to facility, and safety concerns.
EPA is proposing that these additional procedures because its history with CWA Section 312 sewage no-discharge zones suggests that the statutory language does not provide enough detail or description to clearly define a workable process without additional clarification.
EPA specifically solicits comment on the no-discharge zone application process.
CWA Section 312(p)(5) directs the USCG to develop implementing regulations governing the design, construction, testing, approval, installation, and use of marine pollution control devices as are necessary to ensure compliance with the national standards of performance presented in the proposed rule. Additionally, the USCG shall promulgate requirements to ensure, monitor, and enforce compliance of the proposed standards. As such, the proposed rule does not include implementation, compliance, or enforcement provisions.
EPA projects that the incremental costs and benefits arising from the proposed rule will be minor and that the vessel community will experience a net savings of $12.4 million annually. This regulatory relief is principally the result of the VIDA exclusion of small vessels and fishing vessels from federal incidental discharge requirements (
EPA estimates that 66,000 U.S.- and 16,000 foreign-flagged vessels will need to comply with the proposed standards once finalized. In addition to its assessment of the cost impacts specifically to the 66,000 U.S.-flagged vessels, EPA also examined the cost impacts to the approximately 500 foreign-flagged vessels that are U.S.-owned.
The cost analysis, found in the Regulatory Impact Analysis (RIA) located in the rulemaking docket, uses compliance with the VGP and the sVGP, as well as other regulations and industry standards, (
The cost analysis groups the proposed rule's major impacts into four categories. The first category of impacts is comprised of new standards in the proposed rule that result in incremental costs compared to existing VGP
To evaluate the potential impact of the proposed rule on small entities, EPA used a cost-to revenue test to evaluate potential severity of economic impact on vessels owned by small entities. The test calculates annualized pre-tax compliance cost as a percentage of total revenues and uses a threshold of 1 and 3 percent to identify entities that would be significantly impacted if this proposed rule were to go final. EPA projects the potential impacts would not exceed these conventional cost/revenue thresholds. In addition, the Agency completed estimates of the paperwork burden associated with the proposed rulemaking. These estimates project the annualized paperwork burden on states that voluntarily petition EPA for any one of the following: Establishment of no-discharge zones, review of national standards of performance, issuance of emergency orders, and establishment of enhanced Great Lakes System requirements.
EPA also assessed the environmental impacts from this proposal. The Agency does not expect the proposed rule to change environmental benefits significantly compared to those realized by the VGP since the existing VGP requirements are largely proposed to be adopted as the new discharge standards. EPA notes that the VIDA exclusion of small vessels and fishing vessels, except for ballast water, and the corresponding repeal of the sVGP could potentially lead to a reduction in environmental benefits to the extent that affected vessels no longer adhere to practices previously required under the sVGP. In particular, the RIA examines possible losses in benefits from the elimination of the sVGP discharge management requirements for bilgewater, graywater, and anti-fouling hull coatings.
EPA did not evaluate the cost impacts from changes in monitoring, reporting, self-inspection, or recordkeeping associated with the VIDA re-allocation of EPA and USCG authorities and responsibilities. The USCG will present an analysis of these impacts, and other relevant impacts, in documentation supporting their rulemaking for the USCG portions of the CWA Section 312(p) program.
The RIA is available in the docket for this proposed rulemaking. EPA solicits comment on all aspects of its RIA including the underlying assumptions and methodology.
Additional information about these statutes and Executive Orders can be found at
The proposed rule is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review because it raises novel legal or policy issues. Any changes made in response to OMB recommendations have been documented in the public docket for this proposed rule.
In addition, EPA prepared an analysis of the potential impacts associated with this proposed rule. The regulatory impact analysis is available in the public docket for this proposed rule, and both costs and benefits are summarized in Section XI.
The proposed rule is expected to be an Executive Order 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in EPA's analysis of the potential costs and benefits associated with this action.
This proposed rule, once finalized by EPA and implemented through corresponding USCG requirements addressing implementation, compliance, and enforcement, would impose an information collection burden to states under the PRA. The information collection activities in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that EPA prepared has been assigned EPA ICR number 2605.01. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.
EPA has regulated discharges incidental to the normal operation of vessels under the CWA Section 402 NPDES permitting program since 2008. The information collection burden associated with EPA's regulation of those activities are included as part of the Information Collection Request (ICR) for the NPDES Program, OMB Control No. 2040-0004.
The current inventory of vessels included in the NPDES ICR includes 72,942 vessels covered under the VGP and 137,739 small vessels covered under the Small Vessel General Permit (sVGP). That ICR identifies a total of 292,466 responses annually specific to the VGP and sVGP with a total annual burden of 269,919 hours for activities including: Reporting (Notice of Intent, Notice of Termination, annual report); inspection (routine, annual, and drydock) and monitoring; and recordkeeping.
As described below, the enactment of the VIDA in 2018 authorized EPA and the USCG to establish a new regulatory framework for the discharges covered by the VGP which will result in a change in the type of information collected, the Agency responsible for collecting the information, and ultimately the information collection burden.
Upon enactment of the VIDA (December 4, 2018), the sVGP was repealed and incidental discharges from small vessels and fishing vessels less than 79 feet with the exception of ballast water were excluded from requirements established under the VIDA. Thus, any monitoring and reporting burden beyond those for ballast water for small vessels or fishing vessels less than 79 feet in length was terminated. Additionally, once EPA develops new national standards of performance for discharges incidental to the normal operation of a vessel (as is
As detailed in CWA Section 312(p)(5), upon implementation of monitoring, reporting, and recordkeeping requirements by the USCG, the paperwork requirements for vessel owners and operators would need to be reported to the USCG and not to EPA. As such it is expected that much of the existing paperwork burden on vessel owners and operators under the VGP requirements would be managed by the USCG upon implementation of their specific reporting and monitoring requirements. Therefore, the proposed rule would not impose a new paperwork burden on vessel owners and operators.
However, the proposed rule would impose a new information collection burden on states seeking to petition EPA to establish different national standards of performance including enhanced standards in the Great Lakes, issue emergency orders, or establish no-discharge zones. EPA does not anticipate an information collection burden on states until the USCG has established final implementing requirements (required by the VIDA as soon as practicable but not later than two years after the EPA discharge standards proposed in this rulemaking are finalized). After such time, the information collection burden relates to the voluntary preparation and submission of petitions by states and is therefore an intermittent activity.
The ICR submitted for approval to the OMB as part of this rulemaking reflects an anticipated burden to states in the third year of the three-year ICR cycle. This includes one petition of each type: Modification of national standards of performance, issuance of emergency orders, and establishment no-discharge zones. EPA does not expect petitions for enhanced Great Lakes System requirements during this ICR cycle. The type and level of detail of information that a state would need to generate to petition EPA under CWA Section 312(p) is most analogous to the information prepared for an application to EPA under the existing CWA Section 312 ICR (OMB control number 2040-0187), which includes state activities related to petitioning EPA for no-discharge zones for sewage and discharges incidental to the normal operation of vessels of the Armed Forces. For incidental discharges from vessels of the Armed Forces, states may also petition EPA for review of standards. Because of the parallels in discharge types and state activities, EPA used the burden estimates in the existing ICR to inform the expected burden for this proposed rule. Looking ahead, EPA proposes that this new ICR be combined with the existing CWA Section 312 ICR (OMB control number 2040-0187) expected to be renewed in August 2022. This would create a single ICR that would include the information collection burden for all three vessel programs under CWA Section 312 (sewage, vessels of the Armed Forces, and commercial vessels).
The hour and cost estimates, summarized below, include such activities as reviewing the relevant regulations and guidance documents, gathering and analyzing the required information, and preparing and submitting the application.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
EPA certifies that this action will not have a significant economic impact on a substantial number of small entities under the RFA. Although the proposed rule will impose requirements on any small entity that operates a vessel subject to the standards, EPA used a cost-to-revenue test to evaluate potential severity of economic impact on vessels owned by small entities. EPA determined that the projected cost burden would not exceed the conventional cost/revenue thresholds used for small entity impact screening analyses (costs greater than 1 percent and 3 percent of annual revenue). Details of the screening analysis are presented in the section entitled “
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on state, local, and tribal governments, and the private sector. An action contains a federal mandate if it may result in expenditures of $100 million or more (annually, adjusted for inflation) for state, local, and tribal governments, in the aggregate, or the private sector in any one year ($160 million in 2018). 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.
Under Executive Order 13132, EPA may not issue an action with federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal
EPA has concluded that this action has federalism implications for the following reason. The VIDA added a new CWA Section 312(p)(9)(A) that specifies beginning on the effective date of the requirements promulgated by the Secretary established under CWA Section 312(p)(5), no state, political subdivision of a state, or interstate agency may adopt or enforce any law, regulation, or other requirement with respect to an incidental discharge subject to regulation under the VIDA except insofar as such law, regulation, or other requirement is identical to or less stringent than the federal regulations under the VIDA. Accordingly, EPA and the USCG conducted a Federalism consultation briefing on July 9th, 2019 in Washington, DC to allow states and local officials to have meaningful and timely input into the development of EPA rulemaking.
EPA provided an overview of the VIDA, described the interim requirements and the framework of future regulations, identified state provisions associated with the VIDA, and received comments and questions. The briefing was attended by representatives from the National Governors Association, the National Conference of State Legislatures, the U.S. Conference of Mayors, the County Executives of America, the National Association of Counties, the National League of Cities, Environmental Council of the States, the Association of Clean Water Administrators, the National Water Resources Association, the Association of Fish and Wildlife Agencies, the National Association of State Boating Law Administrators, the Western Governors Association, and the Western States Water Council. Pre-proposal comments were accepted from July 9, 2019 to September 9, 2019 and are described in conjunction with the Governors' Consultation comments.
Additionally, pursuant to the terms of Executive Order 13132 and Agency policy, a federalism summary impact statement is required in the final rule to summarize not only the issues and concerns raised by state and local government commenters during the proposed rule's development, but also to describe how and the extent to which the agency addressed those concerns. Further, as required by Section 8(a) of Executive Order 13132, EPA in the final rule will include a certification from its Federalism Official stating that EPA met the Executive Order's requirements in a meaningful and timely manner. A copy of this certification will be included in the public version of the official record once the action is finalized.
This proposed action has tribal implications as specified in Executive Order 13175. See 65 FR 67249, November 9, 2000. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. Tribes may primarily be interested in this action because commercial vessels may operate in or near tribal waters. Additionally, Tribes may have TAS under Section 309 of the CWA. To that end, EPA consulted with tribal officials under the
EPA initiated a tribal consultation and coordination process for this action by sending a “Notice of Consultation and Coordination” letter on June 18, 2019, to all 573 federally recognized tribes. The letter invited tribal leaders and designated consultation representatives to participate in the tribal consultation and coordination process, which lasted from July 11 to September 11, 2019. EPA held an informational webinar for tribal representatives on July 11, 2019, to obtain meaningful and timely input during the development of the proposed rule. During the webinar, EPA provided an overview of the VIDA, described the interim requirements and the framework of future regulations, and identified tribal provisions associated with the VIDA. A total of nine tribal representatives participated in the webinar. EPA also provided an informational presentation on the VIDA during the Region 10 Regional Tribal Operations Committee (RTOC) call on July 18, 2019, as requested by the RTOC. During the consultation period, tribes and tribal organizations sent two pre-proposal comment letters to EPA as part of the consultation process. In addition, EPA held one consultation meeting with the leadership of a tribe, at the tribe's request, to obtain pre-proposal input and answer questions regarding the forthcoming rule.
EPA incorporated the feedback it received from tribal representatives in the proposed rule. Records of the tribal informational webinar, and a consultation summary summarizing the written and verbal comments submitted by tribes are included in the public docket for this proposed rule. The Agency specifically solicits additional comment on this proposed rule from tribal officials.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. See 62 FR 19885, April 23, 1997. The proposed national standards of performance are designed to control discharges incidental to the normal operation of a vessel that could adversely affect human health and the environment. The proposed rule is intended to reduce discharges to receiving waters that could affect any person using the receiving waters, regardless of age.
This action is not a “significant energy action” as defined by Executive Order 13211 because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. See 66 FR 28355, May 22, 2001. EPA believes that any additional energy usage would be insignificant compared to the total energy usage of vessels and the total annual U.S. energy consumption.
The proposed rule would establish national standards of performance but does not establish environmental monitoring or measurement requirements and thus does not include technical standards. Similarly, EPA proposes not to identify specific, prescribed analytic methods. Rather, the national standards of performance in this proposed rule would be the basis of USCG implementing regulations with respect to inspections, monitoring, reporting, sampling, and recordkeeping to ensure, monitor, and enforce compliance with these standards. The applicability of the National Technology Transfer and Advancement Act is appropriately assessed as part of that USCG rulemaking as established in CWA Section 312(p)(5)(A).
EPA proposes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898. See 59 FR 7629, February 16, 1994. While EPA was unable to perform a detailed environmental justice analysis because it lacks data on the exact location of vessels and their associated discharges, the proposed rule will increase the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. Overall, the proposed rule would reduce the amount of pollution entering waterbodies from vessels, which will yield health benefits and improve the recreational utility of waterbodies where vessels are subject to the proposed standards.
Environmental protection, commercial vessels, coastal zone, incidental discharges.
For the reasons set forth in the preamble, EPA proposes to amend 40 CFR subchapter D by adding part 139 to read as follows:
(a)
(1) Any discharge incidental to the normal operation of a vessel; and
(2) Any discharge incidental to the normal operation of a vessel (such as most graywater) that is commingled with sewage, subject to the conditions that:
(i) Nothing in this part prevents a state from regulating sewage discharges; and
(ii) Any such commingled discharge must comply with all applicable requirements of:
(A) This part; and
(B) Any law applicable to the discharge of sewage.
(b)
(1) Incidental to the normal operation of:
(i) A vessel of the Armed Forces subject to 33 U.S.C. 1322(n);
(ii) A recreational vessel subject to 33 U.S.C. 1322(o);
(iii) A small vessel or fishing vessel, except that this part applies to any discharge of ballast water from a small vessel or fishing vessel; or
(iv) A floating craft that is permanently moored to a pier, including a floating casino, hotel, restaurant, or bar; or
(2) That results from, or contains material derived from, an activity other than the normal operation of the vessel, such as material resulting from an industrial or manufacturing process onboard the vessel; or
(3) If compliance with this part would compromise the safety of life at sea.
(c)
(d)
(2) As of the effective date identified in paragraph (d)(1) of this section, the requirements of the Vessel General Permit and all regulations promulgated by the Secretary pursuant to Section 1101 of the Nonindigenous Aquatic Nuisance Prevention and Control Act of
The following definitions apply for the purposes of this part. Terms not defined in this section have the meaning as defined under the Clean Water Act (CWA) and applicable regulations.
(1) Flow-through exchange, in which ballast water is flushed out by pumping in mid-ocean water at the bottom of the tank if practicable, and continuously overflowing the tank from the top, until three full volumes of tank water have been changed.
(2) Empty and refill exchange, in which ballast water is pumped out until the pump loses suction, after which the ballast tank is refilled with water from the mid-ocean. (source: CWA section 312(p)(1)(D)).
(1)
(2)
(3)
(4)
(1) Two ports or places of destination within the Pacific Region; or
(2) A port or place of destination within the Pacific Region and a port or place of destination on the Pacific Coast of Canada or Mexico north of parallel 20 degrees north latitude, inclusive of the Gulf of California. (source: CWA section 312(p)(10)(C)(i)).
(1) The keel of a vessel is laid;
(2) Construction identifiable with the specific vessel begins;
(3) Assembly of the vessel has commenced and comprises at least 50 tons or 1% of the estimated mass of all structural material of the vessel, whichever is less; or
(4) The vessel undergoes a major conversion. (source: 33 CFR 151.1504).
(1) Graywater, bilge water, cooling water, weather deck runoff, ballast water, oil water separator effluent, and any other pollutant discharge from the operation of a marine propulsion system, shipboard maneuvering system, crew habitability system, or installed major equipment, such as an aircraft carrier elevator or a catapult, or from a protective, preservative, or absorptive application to the hull of the vessel; and
(2) A discharge in connection with the testing, maintenance, and repair of a system described in clause (1):
(i) Whenever the vessel is waterborne; and does not include—
(A) A discharge of rubbish, trash, garbage, or other such material discharged overboard;
(B) An air emission resulting from the operation of a vessel propulsion system,
(3) A discharge that is not covered by § 122.3 of this chapter (as in effect on February 10, 1996). (source: CWA section 312).
(1) National Marine Sanctuaries designated under the National Marine Sanctuaries Act (16 U.S.C. 1431
(2) Marine National Monuments designated under the Antiquities Act of 1906;
(3) A unit of the National Park System, including National Preserves and National Monuments, designated by the National Park Service within the U.S. Department of the Interior;
(4) A unit of the National Wildlife Refuge System, including Wetland Management Districts, Waterfowl Production Areas, National Game Preserves, Wildlife Management Areas, and National Fish and Wildlife Refuges designated under the National Wildlife Refuge System Administration Act of 1966 as amended by the National Wildlife Refuge System Improvement Act of 1997;
(5) National Wilderness Areas designated under the Wilderness Act of 1964 (16 U.S.C. 1131-1136); and
(6) Any component designated under the National Wild and Scenic Rivers Act of 1968, 16 U.S.C. 1273.
(1) With respect to the United States, the waters shoreward of the territorial sea baseline, including waters of the Great Lakes extending to the maritime boundary with Canada, and
(2) With respect to any other nation, the waters shoreward of its territorial sea baseline, as recognized by the United States. (source: Modified from 33 CFR 2.24 as referenced in CWA section 312(p)(1)(O)).
(1) Include an organism that has been rendered nonviable; or
(2) Preclude the consideration of any method of measuring the concentration of organisms in ballast water that are capable of reproduction. (source: CWA Section 312(p)(6)(D)(i)).
(1) That substantially alters the dimensions or carrying capacity of the vessel; or
(2) That changes the type of the vessel; or
(3) The intent of which, in the opinion of the government of the country under whose authority the vessel is operating, is substantially to prolong its life; or
(4) Which otherwise so alters the vessel that, if it were a new vessel, it would become subject to relevant provisions of MARPOL not applicable to it as an existing vessel. (source: 33 CFR 151.05).
(1) If both the complete formulation and the main constituents (that is constituents making up greater than or equal to 5% of the complete formulation) are evaluated, then the acute aquatic toxicity of lubricants, other than greases and total loss lubricants, must be at least 100 mg/L and the LC50 of greases and total loss lubricants must be at least 1000 mg/L; or
(2) If each constituent is evaluated, rather than the complete formulation and main constituents, then for each constituent present above 0.1%: Up to 20% of the formulation can have an LC50 greater than 10 mg/L but less than 100 mg/L and an NOEC greater than 1 mg/L but less than 10 mg/L; up to 5% of the formulation can have an LC50 greater than 1 mg/L but less than 10 mg/L and an NOEC greater than 0.1 mg/L but less than 1 mg/L; and up to 1% of the formulation can have an LC50 less than 1 mg/L and an NOEC less than 0.1 mg/L.
(1) Have an acute aquatic toxicity value corresponding to a concentration greater than 10 ppm;
(2) Do not produce residuals with an LC50 less than 10 ppm;
(3) Are not bioaccumulative;
(4) Do not cause the pH of the receiving water to go below 6.0 or above 9.0;
(5) Contain, by weight, 0.5% or less of phosphates or derivatives of phosphate; and
(6) Are biodegradable.
(1) The partition coefficient in the marine environment is log KOW less than 3 or greater than 7;
(2) The molecular mass is greater than 800 Daltons;
(3) The molecular diameter is greater than 1.5 nanometer;
(4) The bioconcentration factor (BCF) or bioaccumulation factor (BAF) is less than 100 L/kg; or
(5) The polymer with molecular weight fraction below 1,000 g/mol is less than 1%.
(1) Slops from bilges;
(2) Slops from oil cargoes (such as cargo tank washings, oily waste, and oily refuse);
(3) Oil residue; and
(4) Oily ballast water from cargo or fuel oil tanks. (source: 33 CFR 151.05).
(a) Except as expressly provided in this part, nothing in this part affects the applicability to a vessel of any other provision of Federal law, including:
(1) Sections 311 and 312 of the Federal Water Pollution Control Act (33 U.S.C. 1321
(2) The Act to Prevent Pollution from Ships (33 U.S.C. 1901
(3) Title X of the Coast Guard Authorization Act of 2010 (33 U.S.C. 3801
(4) The Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136
(5) The National Marine Sanctuaries Act (16 U.S.C. 1431
(b) Nothing in this part affects the authority of the Secretary of Commerce or the Secretary of the Interior to administer any land or waters under the administrative control of the Secretary of Commerce or the Secretary of the Interior, respectively.
(c) Nothing in this part shall be construed to affect, supersede, or relieve the master of any otherwise applicable requirements or prohibitions associated with a vessel's right to innocent passage as provided for under customary international law.
(a) The requirements in paragraph (b) of this section apply to any discharge incidental to the normal operation of a vessel subject to regulation under this part.
(b) Vessels must implement the following practices:
(1) Minimize discharges.
(2) Discharge while underway when practical and as far from shore as practical.
(3) Addition of any materials to a discharge, other than for treatment of the discharge, that is not incidental to the normal operation of the vessel is prohibited.
(4) Dilution of any discharge for the purpose of meeting any standard in this part is prohibited.
(5) Any material used onboard that will be subsequently discharged (
(i) Be used only in the amount necessary to perform the intended function of that material;
(ii) Not contain any materials banned for use in the United States; and
(iii) If subject to FIFRA registration, be used according to the FIFRA label. Proper use includes labeling requirements for proper application sites, rates, frequency of application, and methods; maintenance; removal; and storage and disposal of wastes and containers.
(6) Any toxic or hazardous materials onboard which might wash overboard or dissolve as a result of contact with precipitation or surface water spray must be stored in appropriately sealed, labeled, and secured containers and be located in areas of the vessel that minimize exposure to ocean spray and precipitation consistent with vessel design, unless the master determines this would interfere with essential vessel operations or safety of the vessel or would violate any applicable regulations that establish specifications for safe transportation, handling, carriage, and storage of toxic or hazardous materials.
(7) Containers holding toxic or hazardous materials must not be overfilled and incompatible materials must not be mixed in containers.
(8) The overboard discharge or disposal of containers with toxic or hazardous materials is prohibited.
(9) Prior to washing the cargo compartment or tank and discharging washwater overboard, any cargo compartment or tank must be in broom clean condition or its equivalent, to minimize any remaining residue from these areas.
(10) Topside surfaces (
(11) Painting techniques on topside surfaces must minimize the discharge of paint.
(12) Discharge of unused paint and coatings is prohibited.
(13) Any equipment that may release, drip, leak, or spill oil or oily mixtures, fuel, or other toxic or hazardous materials that may be discharged, including to the bilge, must be maintained to minimize or eliminate the discharge of pollutants.
(a) The requirements in paragraph (b) of this section apply to any vessel subject to regulation under this part.
(b) A vessel-specific biofouling management plan must be developed and followed with a goal to prevent macrofouling, thereby minimizing the potential for the introduction and spread of ANS. A biofouling management plan is a holistic strategy that considers the operational profile of the vessel, identifies the appropriate antifouling systems, and details the biofouling management practices for specific areas of the vessel. The plan elements must prioritize procedures and strategies to prevent macrofouling.
(a) The requirements in paragraphs (b) through (d) of this section apply to vessel equipment and operations that use or discharge oil or oily mixtures.
(b) The following discharges are prohibited:
(1) Used or spent oil no longer being used for its intended purpose; and
(2) Oil in such quantities as may be harmful.
(c) During fueling, maintenance, and other vessel operations, control and response measures must be used to prevent, minimize, and contain spills and overflows.
(d) An environmentally acceptable lubricant (EAL) must be used in any oil-to-sea interface unless such use is technically infeasible.
(a)
(b)
(1) A vessel that continuously takes on and discharges ballast water in a flow-through system, if the Administrator determines that system cannot materially contribute to the spread or introduction of ANS;
(2) A vessel in the National Defense Reserve Fleet scheduled for disposal, if the vessel does not have an operable BWMS;
(3) A vessel that discharges ballast water consisting solely of water taken onboard from a public or commercial source that, at the time the water is taken onboard, meets the applicable requirements or permit requirements of the Safe Drinking Water Act (42 U.S.C. 300f
(4) A vessel that carries all permanent ballast water in sealed tanks that are not subject to discharge except under emergency circumstances; or
(5) A vessel that only discharges ballast water to a reception facility.
(c)
(i) Ballast tanks must be periodically flushed and cleaned to remove sediment and biofouling organisms;
(ii) When practicable and available, high sea suction must be used when in port or where clearance to the bottom of the waterbody is less than 5 meters to the lower edge of the sea chest;
(iii) When practicable, ballast water pumps must be used in port instead of draining by gravity to empty ballast tanks; and
(iv) Any sea chest screen must be maintained and fully intact.
(2) Discharge of any sediment or water from ballast tank cleaning is prohibited.
(3) Discharge or uptake of ballast water must be avoided in areas with coral reefs; discharge and uptake should be conducted as far from coral reefs as possible.
(4) A vessel-specific ballast water management plan must be developed and followed to minimize the potential for the introduction and spread of ANS. A ballast water management plan is a holistic strategy that considers the operational profile of the vessel and the appropriate ballast water management practices and systems.
(d)
(1) Biological parameters (expressed as instantaneous maximums).
(i) Organisms greater than or equal to 50 micrometers in minimum dimension: Less than 10 living organisms per cubic meter.
(ii) Organisms less than 50 micrometers and greater than or equal to 10 micrometers: Less than 10 living organisms per milliliter (mL).
(iii) Toxicogenic
(iv)
(v) Intestinal enterococci: A concentration of less than 100 cfu per 100 mL.
(2) Biocide parameters (expressed as instantaneous maximums).
(i) Chlorine dioxide: For any discharge from a BWMS using chlorine dioxide, chlorine dioxide must not exceed 200 µg/L.
(ii) Total residual oxidizers: For any discharge from a BWMS using chlorine or ozone, total residual oxidizers must not exceed 100 µg/L.
(iii) Peracetic acid: For any discharge from a BWMS using peracetic acid, peracetic acid must not exceed 500 µg/L.
(iv) Hydrogen peroxide: For any discharge from a BWMS using peracetic acid, hydrogen peroxide must not exceed 1,000 µg/L.
(3) Exemptions: The ballast water discharge standards in paragraphs (d)(1) and (2) of this section do not apply to any vessel that:
(i) Is less than or equal to 3,000 GT ITC (1,600 GRT if GT ITC is not assigned), and does not operate outside of the EEZ;
(ii) Is a non-seagoing, unmanned, unpowered barge, except any barge that is part of a dedicated vessel combination such as an integrated or articulated tug and barge unit;
(iii) Takes on and discharges ballast water exclusively in the contiguous portions of a single COTP Zone;
(iv) Does not travel more than 10 NM and passes through no locks;
(v) Is a vessel that operates exclusively in the Great Lakes and the St. Lawrence River west of a rhumb line drawn from Cap des Rosiers to Point-Sud-Oeste (West Point), Anticosti Island, and west of a line along 63 W. longitude from Anticosti Island to the north shore of the St. Lawrence River;
(vi) Is enrolled in the USCG Shipboard Technology Evaluation Program (STEP); or
(vii) Discharges ballast water prior to an applicable ballast water discharge standard compliance date established in regulations promulgated by the Secretary as described in 139.1(d).
(e)
(1) Any vessel that carries ballast water taken on in areas less than 200 NM from any shore that will subsequently operate outside the EEZ and more than 200 NM from any shore must:
(i) Conduct ballast water exchange in waters not less than 200 NM from any shore prior to discharging that ballast water; and
(ii) Commence ballast water exchange not less than 200 NM from any shore and as early in the vessel voyage as practicable.
(2) For any ballast tank that is empty or contains unpumpable residual water on a vessel bound for a port or place of destination subject to the jurisdiction of the United States, the master must, prior to arriving at that port or place of destination, either:
(i) Seal the tank so that there is no discharge or uptake and subsequent discharge of ballast water, or
(ii) Conduct a saltwater flush:
(A) Not less than 200 NM from any shore for a voyage originating outside the United States or Canadian EEZ; or
(B) not less than 50 NM from any shore for a voyage originating within the United States or Canadian EEZ.
(3) Exceptions: Paragraphs (e)(1) and (2), do not apply under any of the following circumstances:
(i) If the unpumpable residual waters and sediments of an empty ballast tank were subject to treatment, in compliance with applicable requirements, through a BWMS approved or accepted by the Secretary;
(ii) Except as otherwise required under this part, if the unpumpable residual waters and sediments of an empty ballast tank were sourced solely within:
(A) The same port or place of destination; or
(B) Contiguous portions of a single COTP Zone;
(iii) If complying with an applicable requirement of this paragraph (e):
(A) Would compromise the safety of the vessel; or
(B) Is otherwise prohibited by any Federal, Canadian, or international law (including regulations) pertaining to vessel safety;
(iv) If design limitations of an existing vessel prevent a ballast water exchange or saltwater flush from being conducted in accordance with this paragraph (e); or
(v) If the vessel is operating exclusively within the internal waters of the United States and Canada.
(f)
(i) Not less than 200 NM from any shore for a voyage originating outside the EEZ; or
(ii) Not less than 50 NM from any shore for a voyage originating within the EEZ.
(2) Exceptions: The requirements of paragraph (f)(1) of this section do not apply to any vessel if:
(i) Complying with paragraph (f)(1) of this section:
(A) Would compromise the safety of the vessel; or
(B) Is otherwise prohibited by any Federal, Canadian, or international law (including regulations) pertaining to vessel safety.
(ii) Design limitations of an existing vessel prevent a ballast water exchange from being conducted in accordance with an applicable requirement of paragraph (f)(1) of this section.
(iii) The vessel has no residual ballast water or sediments onboard.
(iv) The vessel retains all ballast water while in waters subject to the requirement.
(v) The empty ballast tanks on the vessel are sealed in a manner that ensures that no discharge or uptake occurs, and any subsequent discharge of ballast water is subject to the requirement.
(g)
(i) Except as provided in paragraphs (g)(1)(ii) and (g)(3) of this section, any vessel that operates either between two ports or places of destination within the Pacific Region; or a port or place of destination within the Pacific Region and a port or place of destination on the Pacific Coast of Canada or Mexico north of parallel 20 degrees north latitude, inclusive of the Gulf of California, must conduct a complete ballast water exchange in waters more than 50 NM from shore.
(ii) Exemptions: The requirements of paragraph (g)(1)(i) of this section do not apply to any vessel:
(A) Using, in compliance with applicable requirements, a type-approved BWMS approved or accepted by the Secretary.
(B) Voyaging:
(
(
(
(
(
(
(
(2) Low-Salinity Ballast Water:
(i) Except as provided in paragraphs (g)(2)(ii) and (g)(3) of this section, a complete ballast water exchange must be conducted for any commercial vessel that transports ballast water sourced from waters with a measured salinity of less than 18 parts per thousand and voyages to a Pacific Region port or place of destination with a measured salinity of less than 18 parts per thousand:
(A) Not less than 50 NM from shore, if the ballast water was sourced from a Pacific Region port or place of destination.
(B) More than 200 NM from shore, if the ballast water was not sourced from a Pacific Region port or place of destination.
(ii) Exception: The requirements of paragraph (g)(2)(i) of this section do not apply to any vessel voyaging to a port or place of destination in the Pacific Region that is using, in compliance with applicable requirements, a type-approved BWMS accepted by the Secretary, or a type-approved BWMS approved by the secretary to achieve the following numeric discharge standard for biological parameters (expressed as instantaneous maximums):
(A) Organisms greater than or equal to 50 micrometers in minimum dimension: Less than 1 living organism per 10 cubic meters.
(B) Organisms less than 50 micrometers and greater than or equal to 10 micrometers: Less than 1 living organisms per 100 milliliters (mL).
(C) Toxicogenic
(D)
(E) Intestinal enterococci: Less than 33 cfu per 100 mL.
(3) General Exceptions: The requirements of paragraphs (g)(1) and (2) of this section do not apply to a commercial vessel if:
(i) Complying with the requirement would compromise the safety of the commercial vessel.
(ii) If design limitations of an existing vessel, prevent a ballast water exchange from being conducted in accordance with paragraphs (g)(1) and (2) of this section, as applicable.
(iii) The commercial vessel:
(A) Has no residual ballast water or sediments onboard; or
(B) Retains all ballast water while in waters subject to those requirements.
(iv) Empty ballast tanks on the commercial vessel are sealed in a manner that ensures that:
(A) No discharge or uptake occurs; and
(B) Any subsequent discharge of ballast water is subject to those requirements.
(h)
(a) The requirements in paragraphs (b) through (d) of this section apply to discharges from the bilge consisting of water and residue that accumulates in a lower compartment of the vessel's hull below the waterline. This includes any water and residue from a cargo area that comes into contact with oily materials or a below-deck parking area or other storage area for motor vehicles or other motorized equipment.
(b) The discharge of bilgewater from any vessel must not contain any flocculants or other additives except when used with an oily water separator or to maintain or clean equipment. The use of any additives to remove the appearance of a visible sheen is prohibited.
(c) For any vessel of 400 GT ITC (400 GRT if GT ITC is not assigned) and above, the discharge of bilgewater must occur when the vessel is underway.
(d) Additional standards applicable to discharges from bilges when a vessel is operating in federally-protected waters are contained in § 139.40(c).
(a) The requirements in paragraphs (b) and (c) of this section apply to discharges resulting from boiler blowdown.
(b) The discharge from boiler blowdown must be minimized when in port.
(c) Additional standards applicable to discharges from boilers when a vessel is operating in federally-protected waters are contained in § 139.40(d).
(a) The requirements in paragraph (b) of this section apply to discharges resulting from a vessel's cathodic corrosion control protection device, including sacrificial anodes and impressed current cathodic protection systems.
(b) Spaces between any flush-fit anode and backing must be filled to remove potential hotspots for biofouling organisms.
(a) The requirements in paragraphs (b) through (e) of this section apply to accumulated precipitation and seawater that is emptied from the compartment used to store the anchor chain on a vessel.
(b) Anchors and anchor chains must be rinsed of biofouling organisms and sediment when the anchor is retrieved.
(c) The discharge of accumulated water and sediment from any chain locker is prohibited in port.
(d) For all vessels that operate beyond the waters of the contiguous zone, anchors and anchor chains must be rinsed of biofouling organisms and sediment prior to entering the waters of the contiguous zone.
(e) Additional standards applicable to a discharge from chain lockers when a vessel is operating in federally-protected waters are contained in § 139.40(e).
(a) The requirements in paragraphs (b) through (i) of this section apply to the overboard discharge of washdown and runoff, including but not limited to precipitation and sea water, from decks, well decks, and bulkhead areas.
(b) Coamings or drip pans must be used for machinery that is expected to leak or otherwise release oil on the deck; accumulated oil must be collected.
(c) Where required by an applicable international treaty or convention or the Secretary, the vessel must be fitted with and use physical barriers (
(d) Control measures must be used to minimize the introduction of on-deck debris, garbage, residue, and spill into deck washdown and runoff.
(e) Vessel decks must be kept in broom clean condition whenever the vessel is underway and prior to any deck washdown.
(f) Deck washdowns must be minimized in port.
(g) The discharge of floating solids, visible foam, halogenated phenolic compounds, dispersants, surfactants, and spills must be minimized in any deck washdown.
(h) Any soap, cleaner, or detergent used for deck washdown must be minimally-toxic, phosphate-free, and biodegradable.
(i) Additional standards applicable to discharges from decks when a vessel is operating in federally-protected waters are contained in § 139.40(f).
(a) The requirements in paragraph (b) of this section apply to discharges from onboard desalination and purification systems used to generate freshwater from seawater or otherwise purify water.
(b) The discharge resulting from the cleaning of desalination and purification systems with toxic or hazardous materials is prohibited.
(a) The requirements in paragraph (b) of this section apply to the liquid that accumulates in, and is discharged from, the sumps of elevator wells on vessels.
(b) The discharge of untreated accumulated water and sediment from any elevator pit is prohibited.
(a)
(b)
(1)
(A) The discharge must have a pH of no less than 6.5 as measured at the vessel's overboard discharge point with the exception that during maneuvering and transit, the maximum difference of two pH units is allowed between inlet water and overboard discharge values; or
(B) The pH discharge limit is the value that will achieve a minimum pH of 6.5 at 4 meters from the overboard discharge point with the ship stationary. This overboard pH discharge limit is to be determined at the overboard discharge monitoring point and is to be recorded as the vessel's discharge limit. The overboard pH can be determined either by means of direct measurement, or by using a calculation-based methodology (computational fluid dynamics or other equally scientifically established empirical formulas).
(ii) The pH numeric discharge standard may be exceeded for up to 15 minutes in any 12-hour period.
(2)
(i) The maximum continuous PAH concentration in the discharge must be no greater than 50 µg/L PAHphe (phenanthrene equivalence) above the inlet water PAH concentration. The PAH concentration in the discharge must be measured downstream of the water treatment equipment and upstream of any dilution (or other reactant dosing unit, if used).
(ii) The 50 µg/L numeric discharge standard is normalized for a discharge flow rate of 45 tons(t)/MWh where the MW refers to the Maximum Continuous Rating or 80% of the power rating of the fuel oil combustion unit. This numeric discharge standard is adjusted upward or downward for varying discharge flow
(iii) The continuous PAHphe numeric discharge standard may be exceeded by 100% for up to 15 minutes in any 12-hour period.
(3)
(i) The washwater treatment system must be designed to minimize suspended particulate matter, including heavy metals and ash.
(ii) The maximum continuous turbidity in the discharge must be no greater than 25 FNU (formazin nephlometric units) or 25 NTU (nephlometric turbidity units) or equivalent units above the inlet water turbidity. However, to account for periods of high inlet turbidity, readings must be a rolling average over a 15-minute period to a maximum of 25 FNU with the discharge measured downstream of the water treatment equipment and upstream of dilution (or reactant dosing, if used).
(iii) The continuous turbidity numeric discharge standard may be exceeded by 20% for up to 15 minutes in any 12-hour period.
(4)
(i) The washwater treatment system must prevent the discharge of nitrates beyond that associated with a 12% removal of NO
(c)
(d)
(a) The requirements in paragraphs (b) through (d) of this section apply to the discharge from fire protection equipment. As specified in § 139.1(b)(3), these requirements do not apply to discharges from fire protection equipment when used for emergencies or when compliance with such requirements would compromise the safety of the vessel or life at sea.
(b) The discharge from fire protection equipment during testing, training, maintenance, inspection, or certification, excluding USCG-required inspection and certification, is prohibited in port and must not contain any fluorinated firefighting foam.
(c) Additional requirements applicable to discharges from fire protection equipment when a vessel is operating in federally-protected waters are contained in § 139.40(g).
(a) The requirements in paragraph (b) of this section apply to discharges from the washing of gas turbine components.
(b) The discharge of untreated gas turbine washwater is prohibited unless infeasible.
(a) The requirements in paragraphs (b) through (h) of this section apply to discharges of graywater except for graywater from any commercial vessel on the Great Lakes that is subject to the requirements in 40 CFR part 140 and 33 CFR part 159.
(b) The introduction of kitchen waste, food, oils, and oily residues to the graywater system must be minimized.
(c) Any soaps, cleaners, and detergents discharged in graywater must be minimally-toxic, phosphate-free, and biodegradable.
(d) The discharge of graywater is prohibited from any vessel:
(1) Within 3 NM from shore that voyages at least 3 NM from shore and has remaining available graywater storage capacity, unless the discharge meets the standards in paragraph (f) of this section; and
(2) Within 1 NM from shore that voyages at least 1 NM from shore but not beyond 3 NM from shore and has remaining available graywater storage capacity, unless the discharge meets the standards in paragraph (f) of this section.
(e) The discharge of graywater from the following vessels must meet the numeric discharge standard established in paragraph (f) of this section:
(1) Any new vessel of 400 GT ITC (400 GRT if GT ITC is not assigned) and above;
(2) Any passenger vessel with overnight accommodations for 500 or more passengers;
(3) Any passenger vessel with overnight accommodations for 100-499 passengers unless the vessel was constructed before December 19, 2008, and does not voyage beyond 1 NM from shore; and
(4) Any new ferry authorized by the USCG to carry 250 or more people.
(f) A vessel identified in paragraph (e) of this section that is discharging graywater must meet the following numeric discharge standard:
(1)
(i) The 30-day geometric mean must not exceed 20 cfu/100 mL (colony forming units/milliliter).
(ii) Greater than 90% of samples must not exceed 40 cfu/100 mL.
(2)
(i) The 30-day average must not exceed 30 mg/L.
(ii) The 7-day average must not exceed 45 mg/L.
(3)
(i) The 30-day average must not exceed 30 mg/L.
(ii) The 7-day average must not exceed 45 mg/L.
(4)
(i) Must be maintained between 6.0 and 9.0.
(ii) [Reserved]
(5) Total residual chlorine.
(i) Must not exceed 10.0 µg/L.
(ii) [Reserved]
(g) The discharge of graywater from any vessel operating on the Great Lakes that is not a commercial vessel must not exceed 200 fecal coliform forming units per 100 milliliters and contain no more than 150 milligrams per liter of suspended solids.
(h) Additional standards applicable to discharges from graywater systems when a vessel is operating in federally-protected waters are contained in § 139.40(h).
(a)
(b)
(2) Coatings must be applied, maintained, and reapplied consistent with manufacturer specifications, including the thickness, the method of application, and the lifespan of the coating.
(3) Coatings on vessel hulls and niches must not contain tributyltin (TBT) or any other organotin compound used as a biocide.
(i) Any vessel hull previously covered with a coating containing TBT (whether or not used as a biocide) or any other organotin compound (if used as a biocide) must:
(A) Maintain an effective overcoat on the vessel hull so that no TBT or other organotin leaches from the vessel hull; or
(B) Remove any TBT or other organotin compound from the vessel hull.
(4) When an organotin compound other than TBT is used as a catalyst in the coating (
(i) Contain less than 2,500 mg total tin per kilogram of dry paint; and
(ii) Not be designed to slough or otherwise peel from the vessel hull, noting that incidental amounts of coating discharged by abrasion during cleaning or after contact with other hard surfaces (
(5) Coatings that contain cybutryne must not be applied on vessel hulls and niches.
(i) Any vessel that has previously applied a coating that contains cybutryne to the vessel hull must:
(A) Apply and maintain an effective overcoat of the vessel hull so that no cybutryne leaches from the vessel hull, noting that incidental amounts of coating discharged by abrasion during cleaning or after contact with other hard surfaces (
(B) Remove any cybutryne coating from the vessel hull.
(6) Alternatives to copper-based coatings must be considered for vessels spending 30 or more days per year in a copper-impaired waterbody or using these waters as their home port.
(c)
(2) Cleaning techniques must minimize damage to the coating.
(3) Cleaning must not result in a plume or cloud of paint.
(4) In-water cleaning of biofouling that exceeds a fouling rating of FR-20 is prohibited unless one or more of the following conditions are met:
(i) The biofouling is local in origin and cleaning does not result in a plume or cloud of paint; or
(ii) An in-water cleaning and capture (IWCC) system is designed and operated to:
(A) Capture coatings and biofouling organisms;
(B) Filter biofouling organisms from the effluent; and
(C) Minimize the release of biocides.
(5) The discharge of any wastes filtered or otherwise removed from any IWCC system is prohibited.
(6) In-water cleaning of any copper-based hull coatings is prohibited in a copper-impaired waterbody within the first 365 days after application, unless an IWCC system consistent with paragraph (c)(2)(ii) of this section is used.
(7) In-water cleaning must not be conducted on any section of a biocidal antifouling coating that shows excessive cleaning actions (
(8) Any soap, cleaner, or detergent used on vessel surfaces, such as a scum line of the hull, must be minimally-toxic, phosphate-free, and biodegradable.
(9) Additional standards applicable to discharges from hulls and associated niche areas when a vessel is operating in federally-protected waters are contained in § 139.40(i).
(a) The requirements in paragraph (b) of this section apply to the discharge of washwater from an inert gas system and deck seal water when used as an integral part of that system.
(b) The discharge from inert gas systems must meet the general discharge requirements in subpart B of this part.
(a) The requirements in paragraphs (b) and (c) of this section apply to the discharge of motor gasoline and compensating ambient water added to keep gasoline tanks full to prevent potentially explosive gasoline vapors from forming.
(b) The discharge of motor gasoline and compensating discharges must meet all general discharge requirements in subpart B of this part.
(c) Additional standards applicable to discharges from motor gasoline and compensating systems when a vessel is operating in federally-protected waters are contained in § 139.40(j).
(a) The requirements in paragraph (b) of this section apply to discharges from machinery that contains no oil, including discharges from the operation of desalination systems, water chillers, valve packings, water piping, low- and high-pressure air compressors, propulsion engine jacket coolers, fire pumps, and seawater and potable water pumps.
(b) The discharge of untreated non-oily machinery wastewater and packing gland or stuffing box effluent containing toxic or bioaccumulative additives or the discharge of oil in such quantities as may be harmful is prohibited.
(a) The requirements in paragraphs (b) and (c) of this section apply to discharges from pools and spas.
(b) Except for unintentional or inadvertent releases from overflows across the decks and into overboard drains caused by, but not limited to, weather, vessel traffic, marine wildlife avoidance or navigational maneuvering, discharge of pool and spa water must:
(1) Occur only while the vessel is underway, unless determined to be infeasible, and;
(2) Meet the following numeric discharge standard:
(i) For chlorine disinfection: Total residual chlorine less than 100 µg/L; and
(ii) For bromine disinfection: Total residual oxidant less than 25 µg/L.
(c) Additional standards applicable to discharges from pools and spas when a vessel is operating in federally-protected waters are contained in § 139.40(k).
(a) The requirements in paragraph (b) of this section apply to discharges of condensation from refrigeration, air conditioning, and similar chilling equipment.
(b) The direct overboard discharge of any condensate that contacts toxic or hazardous materials is prohibited.
(a) The requirements in paragraphs (b) and (c) of this section apply to discharges from seawater piping systems that provide water for other vessel uses (
(b) Seawater piping systems, including sea chests, grates, and similar appurtenances, that accumulate biofouling that exceeds a fouling rating of FR-20 must be fitted with a Marine Growth Prevention System (MGPS).
(1) An MGPS must be selected to address:
(i) The level, frequency, and type of biofouling; and
(ii) The design, location, and area in which the system will be used.
(2) An MGPS must include one, or some combination of the following:
(i) Chemical injection;
(ii) Electrolysis, ultrasound, ultraviolet radiation, or electrochlorination;
(iii) Application of an antifouling coating; or
(iv) Use of cupro-nickel piping.
(3) Upon identification of biofouling that exceeds a fouling rating of FR-20 in a seawater piping system, reactive measures to manage the macrofouling must be used. Discharges resulting from reactive measures to remove macrofouling are prohibited in port.
(c) Additional standards applicable to discharges from seawater piping when a vessel is operating in federally-protected waters are contained in § 139.40(l).
(a) The requirements in paragraphs (b) and (c) of this section apply to discharges from sonar domes.
(b) The discharge of water during maintenance or repair from inside the sonar dome is prohibited.
(c) Use of bioaccumulative biocides on the exterior of any sonar dome is prohibited when non-bioaccumulative alternatives are available.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(a) The Governor of a State (or a designee) may submit a petition to the Administrator:
(1) To issue an emergency order under CWA section 312(p)(4)(e); or
(2) To review any standard of performance, regulation, or policy promulgated by the Administrator under CWA section 312(p)(4) or (6), if there exists new information that could reasonably result in a change to:
(i) The standard of performance, regulation, or policy; or
(ii) A determination on which the standard of performance, regulation, or policy was based.
(b) A petition under paragraph (a) of this section shall be signed by the Governor (or a designee) and must include:
(1) The purpose of the petition (request for emergency order or a review of a standard, regulation, or policy);
(2) Any applicable scientific or technical information that forms the basis of the petition; and
(3) The direct and indirect benefits if the requested petition were to be granted by the Administrator.
(c) The Administrator shall grant or deny:
(1) A petition under paragraph (a)(1) of this section by not later than the date that is 180 days after the date on which the petition is submitted; and
(2) A petition under paragraph (a)(2) of this section by not later than the date that is one year after the date on which the petition is submitted.
(d) If the Administrator determines to grant a petition:
(1) In the case of a petition under paragraph (a)(1) of this section, the Administrator shall immediately issue the relevant emergency order under CWA section 312(p)(4)(E); or
(2) In the case of a petition under paragraph (a)(2) of this section, the Administrator shall submit a Notice of Proposed Rulemaking to the
(e) If the Administrator determines to deny a petition, the Administrator shall submit a notice to the
(a) The Governors endorsing a proposed standard or requirement under CWA section 312(p)(10)(ii)(III)(bb) may jointly submit to the Administrator for approval each proposed standard of performance or other requirement developed and endorsed pursuant to CWA section 312(p)(10)(ii) with respect to any discharge that is subject to regulation under this part and occurs within the Great Lakes System.
(b) A petition under paragraph (a) of this section must include:
(1) An explanation regarding why the applicable standard of performance or other requirement is at least as stringent as a comparable standard of performance or other requirement under this part;
(2) Information indicating that the standard of performance or other requirement is in accordance with maritime safety; and
(3) Information indicating that the standard of performance or other requirement is in accordance with applicable maritime and navigation laws and regulations.
(c) On receipt of a proposed standard of performance or other requirement under paragraph (b) of this section, the Administrator shall submit, after consultation with USCG, a document to the
(1) States that the proposed standard or requirement is publicly available; and
(2) Provides an opportunity for public comment regarding the proposed standard or requirement.
(d) The Administrator shall commence a review of each proposed standard of performance or other requirement covered by the notice to determine whether that standard or requirement is at least as stringent as comparable standards and requirements under this part.
(e) In carrying out paragraph (d) of this section, the Administrator:
(1) Shall consult with the Secretary,
(2) Shall consult with the Governor of each Great Lakes State and representatives from the Federal and provincial governments of Canada;
(3) Shall take into consideration any relevant data or public comments received under paragraph (c)(2) of this section; and
(4) Shall not take into consideration any preliminary assessment by the Great Lakes Commission or any dissenting opinion by a Governor of a Great Lakes State, except to the extent that such an assessment or opinion is relevant to the criteria for the applicable determination under paragraph (d) of this section.
(f) Upon review and determination, the Administrator, in concurrence with the Secretary, shall approve each proposed standard or other requirement, unless the Administrator determines that the proposed standard or other requirement is not at least as stringent as comparable standards and requirements under this part.
(g) If the Administrator approves a proposed standard or other requirement, the Administrator shall submit notification of the determination to the Governor of each Great Lakes State and to the
(h) If the Administrator disapproves a proposed standard of performance or other requirement, the Administrator shall submit a notice that must include:
(1) A description of the reasons why the standard or requirement is, as applicable, less stringent than a comparable standard or requirement under this part, and
(2) Any recommendations regarding changes the Governors of the Great Lakes States could make to conform the disapproved portion of the standard or requirement to the requirements of paragraph (b) of this section.
(i) Disapproval of a proposed standard or requirement by the Administrator under paragraph (h) of this section shall be considered to be a final agency action subject to judicial review under section 509.
(j) On approval by the Administrator of a proposed standard of performance or other requirement, the Administrator shall establish, by regulation, the proposed standard or requirement within the Great Lakes System in lieu of any comparable standard or other requirement promulgated under CWA section 312(p)(4).
(a) If any state determines that the protection and enhancement of the quality of some or all of the waters within the state require greater environmental protection, the Governor of a State (or a designee) may submit a petition to the Administrator to establish a regulation prohibiting one or more discharges, whether treated or not treated, into such waters subject to the application.
(b) A prohibition by the Administrator under paragraph (a) of this section shall not apply until the Administrator, in concurrence with the Secretary, reviews the state application and makes the applicable determinations described in paragraph (d) of this section and publishes a regulation establishing the prohibition.
(c) An application submitted by the state under paragraph (a) of this section shall be signed by the Governor (or a designee) and must include:
(1) A certification that a prohibition of the discharge(s) would protect and enhance the quality of the specific waters within the state to a greater extent than the applicable Federal standard provides;
(2) A detailed analysis of the direct and indirect benefits of the requested prohibition for each individual discharge for which the state is seeking a prohibition;
(3) A table identifying the types and number of vessels operating in the waterbody and a table identifying the types and number of vessels that would be subject to the prohibition;
(4) A table identifying the location, operating schedule, draught requirements, pumpout capacity, pumpout flow rate, and fee structure of each facility capable of servicing the vessels that would be subject to the prohibition and available to receive the prohibited discharge;
(5) A map indicating the location of each facility identified in paragraph (5) within the proposed waters;
(6) A table identifying the location and geographic area of each proposed no-discharge zone; and
(7) A detailed analysis of the impacts to vessels subject to the prohibition, including a discussion of how these vessels may feasibly collect and store the discharge, the extent to which retrofitting may be required, costs that are incurred as a result of the discharge prohibition, and any safety implications.
(d) On application of a State, the Administrator, in concurrence with the Secretary, shall, by regulation, prohibit the discharge from a vessel of one or more discharges subject to regulation under this part, whether treated or not treated, into the waters covered by the application if the Administrator determines that—
(1) The prohibition of the discharge would protect and enhance the quality of the specified waters within the state;
(2) Adequate facilities for the safe and sanitary removal and treatment of the prohibited discharge are reasonably
(3) The discharge can be safely collected and stored until a vessel reaches an appropriate facility or location for discharge;
(4) In the case of an application for the prohibition of the discharge of ballast water in port (or in any other location where cargo, passengers, or fuel are loaded and unloaded):
(i) The considerations for adequate facilities described in paragraph (d)(2) of this section apply; and
(ii) The prohibition will not unreasonably interfere with the safe loading and unloading of cargo, passengers, or fuel.
(e) The Administrator shall submit to the Secretary a request for written concurrence on a determination made to establish a prohibition.
(1) A failure by the Secretary to concur with the Administrator 60 days after the date on which the Administrator submits a request for concurrence shall not prevent the Administrator from prohibiting the discharge or discharges, subject to the condition that the Administrator shall include in the administrative record of the promulgation:
(i) Documentation of the request for concurrence; and
(ii) The response of the Administrator to any written objections received from the Secretary relating to the prohibition during the 60-day period beginning on the date of the request for concurrence.
(f) Upon a determination by the Administrator that an application meets the criteria in paragraph (c) of this section, the Administrator shall approve or disapprove an application submitted by a state.
(g) If the Administrator approves the application, the Administrator shall submit a notice of proposed rulemaking to the
(h) A prohibition by the Administrator under paragraph (a) of this section shall not apply until the Administrator publishes a final rule establishing the prohibition.
Refuges that have boundaries in multiple states are listed only in the state where the main visitor entrance is located. Maps of each national wildlife refuge are available at
Consumer Product Safety Commission.
Notice of proposed rulemaking.
The Danny Keysar Child Product Safety Notification Act, section 104 of the Consumer Product Safety Improvement Act of 2008 (CPSIA), requires the United States Consumer Product Safety Commission (CPSC) to promulgate consumer product safety standards for durable infant or toddler products. These standards are to be “substantially the same as” the applicable voluntary standard, or more stringent than the voluntary standard, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product. The Commission is proposing a safety standard for crib mattresses. The scope of the proposed rule includes full-size and non-full-size crib mattresses, as well as after-market mattresses for play yards and non-full-size cribs. The Commission is also proposing to amend CPSC's consumer registration requirements to identify crib mattresses within the scope of the proposed rule as durable infant or toddler products, and proposing to amend CPSC's list of notice of requirements (NORs) to include such crib mattresses.
Submit comments by January 11, 2021.
Comments related to the Paperwork Reduction Act aspects of the marking, labeling, and instructional literature requirements of the proposed mandatory standard for crib mattresses should be directed to the Office of Information and Regulatory Affairs, the Office of Management and Budget, Attn: CPSC Desk Officer, Fax: 202-395-6974, or emailed to
Other comments, identified by Docket No. CPSC-2020-0023, may be submitted electronically or in writing:
Hope E J. Nesteruk, Project Manager, Directorate for Engineering, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone: (301) 987-2547; email:
On June 16, 2015, the president of Keeping Babies Safe (KBS) and the mother of a child who died in an incident involving an after-market play yard mattress, petitioned the CPSC, requesting a ban on supplemental mattresses for play yards with non-rigid sides (petition CP 15-2: Petition Requesting Rulemaking on Supplemental Mattresses for Play Yards with Non-Rigid Sides). The petitioner alleged that “thicker mattresses create a suffocation hazard because they create a gap between the mattress pad sides and the side of the portable crib where a baby can suffocate when the baby's head falls in such gap while lying in the prone position.” Petitioner asserted that “no feasible consumer product safety standard would adequately protect babies from the unreasonable risk of injury and death associated with the product.”
CPSC staff prepared a briefing package for the petition, recommending that the Commission defer action on the petition, so that staff could work on voluntary standards for crib mattresses and play yards to address the hazards identified in the petition. Staff noted that any work on the play yard voluntary standard could become a mandatory standard through the Public Law 112-28 update process, because the Commission has an existing mandatory standard for play yards (16 CFR part 1221); however, any changes to the crib mattress voluntary standard would remain a voluntary standard, because the Commission does not have a mandatory rule for crib mattresses.
On May 25, 2017, in response to the petition request and staff's recommendation to defer the petition, the Commission voted
The Commission issues this notice of proposed rulemaking (NPR) under section 104 of the CPSIA to propose a mandatory consumer product safety standard for crib mattresses.
Section 104(b) of the CPSIA requires the Commission to: (1) Examine and assess the effectiveness of voluntary consumer product safety standards for durable infant or toddler products, in consultation with representatives of consumer groups, juvenile product manufacturers, and independent child product engineers and experts; and (2) promulgate consumer product safety standards for durable infant or toddler products. 15 U.S.C. 2056a(b). Standards issued under section 104 are to be “substantially the same as” the applicable voluntary standards, or more stringent than the voluntary standard, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product.
Regarding the consultation requirement in section 104(b)(1) of the CPSIA, CPSC staff regularly participates in the juvenile products subcommittee meetings of ASTM International (ASTM). ASTM subcommittees consist of members who represent producers, users, consumers, government, and academia.
Section 104(d) of the CPSIA requires manufacturers of durable infant or toddler products to establish a product registration program and comply with CPSC's implementing rule, 16 CFR part 1130. Any product defined as a “durable infant or toddler product” in part 1130 must comply with the product registration requirements, as well as testing and certification requirements for children's products, as codified in 16 CFR parts 1107 and 1109. Section 104(f)(1) of the CPSIA defines a “durable infant or toddler product” as a “durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years.” 15 U.S.C. 2056a(f)(1). Section 104(f)(2) of the CPSIA includes a list of categories of products that are durable infant or toddler products, including infant sleep products, such as cribs (full-size and non-full-size), toddler beds, bassinets and cradles, and play yards.
Although crib mattresses are used with infant sleep products, crib mattresses are not included in the statutory list of durable infant or toddler products. The Commission proposes to amend part 1130 to include “crib mattresses” within the scope of ASTM F2933, as durable infant or toddler products. As set forth in section IX of this preamble, the Commission previously explained that the statutory product list is not exhaustive, and the Commission has added products to the list of durable infant or toddler products. The Commission proposes to include “crib mattresses” as a “durable infant or toddler product” because: (1) They are intended for use, and may be reasonably expected to be used, by children under the age of 5 years; (2) they are products similar to the products listed in section 104(f)(2) of the CPSIA; (3) they are used in conjunction with other durable infant or toddler products used for unattended infant sleep, such as cribs, bassinets, and play yards; and (4) CPSC cannot fully address the risk of injury associated with such infant sleep products without addressing the hazards associated with the use of crib mattresses in these infant sleep products.
Pursuant to section 104 of the CPSIA, the Commission proposes to issue a mandatory standard for crib mattresses, incorporating by reference ASTM F2933-19, with modifications to make the standard more stringent, to further reduce the risk of injury associated with the use of crib mattresses. Proposed modifications in this NPR address: (1) Suffocation hazards associated with crib mattresses, due to overly soft mattresses, by adding a test for mattress firmness based on sections 6 and 8 of A
The Commission also proposes to amend the consumer registration rule, part 1130, to identify “crib mattresses” as a category of “durable infant or toddler products” subject to the rule. Finally, the Commission proposes to amend its regulation at 16 CFR part 1112 to add “crib mattresses” to the list of products that require third-party testing as a basis for certification.
This NPR is based on information provided in the September 30, 2020, Staff Briefing Package: Draft Notice of Proposed Rulemaking for Crib Mattresses
The scope of the NPR includes all crib mattresses
Crib mattresses are designed to be used with infant sleep products, such as full-size cribs, non-full-size cribs, bassinets and cradles, and play yards, to provide sleeping accommodations for an infant. According to estimates published by Statista-Grand View Research, the size of the U.S. market for standard and portable cribs was $86.8 million in 2018.
Crib mattresses range in price from $20 to $500, with the more expensive crib mattresses typically being full-size crib mattresses with a firm coil or high-end foam core. Crib mattresses are sometimes also sold with waterproof covers and fitted sheets, specifically designed to be used with the mattress. While some manufacturers produce a large variety of crib mattress models, others produce only a small selection. Many crib mattresses are GreenGuard Certified, which is a UL-sponsored standard intended to reduce the emissions of volatile organic compounds from products.
If finalized, a mandatory rule for crib mattresses will require third party testing for conformance to the new crib mattress rule, 16 CFR part 1241, and a certificate of compliance. Crib mattresses already require third party testing and certification, because crib mattresses are already defined as “children's products,” and are currently subject to various other federal safety rules, such as mattress flammability, lead, and phthalate testing. Accordingly, a final rule for crib mattresses will incrementally increase the amount of crib mattress testing and certification requirements already in place.
Based on information from the 2013 CPSC Durable Nursery Products Exposure Survey (DNPES) of U.S. households with children under 6 years old, an estimated 9.2 million cribs were in use in households with young
According to the same survey, an estimated 5.8 million play yards were in use in households with young children. This represented about 54 percent of the estimated 10.9 million total play yards owned by households (
The DNPES did not cover child care facilities. One childcare industry group's 2018 directory
Staff of CPSC's Directorate for Epidemiology, Division of Hazard Analysis (EPHA), searched the Consumer Product Safety Risk Management System
The Commission is aware of 439 reports associated with a crib mattress. Table 1 presents the severity of the reported cases, in order of severity. Of the 439 reports, 116 reports (26 percent) involved a fatality; 15 reports (3 percent) required an infant to receive treatment in an emergency room; and 4 reports (1 percent) required hospital admission. Reports for 199 incidents (45 percent) describe incidents that resulted in no injuries; and 16 reports (4 percent) describe no actual incidents or injuries. In the 199 incident reports with no injuries reported, staff observed that, generally, caregivers intervened once they identified a problem with the crib mattress, and the mattress was no longer used after the caregiver identified the hazard.
The Commission is aware of 116 reported deaths and 323 nonfatal incidents and concerns associated with crib mattresses that were reported to have occurred between January 1, 2010 and March 31, 2020. Table 2 presents hazard categories, which are further defined in the
The Commission is aware of 116 reported deaths associated with crib mattresses that were reported to have occurred between January 1, 2010 and March 31, 2020. Table 3 presents hazard categories associated with fatalities.
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CPSC staff identified the age and gender of the infant in every reported fatality. The oldest-aged children associated with crib mattress fatalities were: One 3-year-old, and two 2-year-old children. Staff observed considerably more reported prone fatalities between the ages of 1 month and 5 months, and most of the deaths in the fit, face in mattress, and MCF hazard categories involved infants between the ages of 1 month and 8
The Commission is aware of 323 reported nonfatal incidents and concerns associated with crib mattresses that were reported to have occurred between January 1, 2010 and March 31, 2020. Table 4 presents the hazard categories associated with nonfatal crib mattress reports.
As shown in Table 4, the hazard categories with the most reported nonfatal incidents associated with crib mattresses are issues with coils or springs, and crib mattresses that do not fit properly in the sleep environment.
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After reviewing the incident data, CPSC staff identified various mattress-use factors associated with deaths and serious injuries related to sudden and unexpected infant death (SUID), including, but not limited to, prone positioning of sleeping infants, soft bedding added to sleep areas, and gaps/pockets between mattresses and infant product sides.
To make infant sleep environments more comfortable, caregivers commonly use soft bedding and after-market mattresses, instead of, or in addition to, an OEM mattress. Infants can maneuver themselves into vulnerable positions in a sleep environment, from which they cannot free themselves:
Infants in the age range associated with fatal incidents,
Infants can become trapped in a gap between a crib mattress and the side wall(s) of their sleep environment, with their nose and mouth pressed against the mattress or side wall, experiencing compromised airflow. Gap entrapment is a hazard associated with ill-fitting mattresses in full-size cribs, play yards, and non-full-size cribs. To minimize the risk for entrapment in a gap, a full-size crib and full-size crib mattress that meet the applicable standards would allow a maximum side gap of 1
Gaps between the infant's mattress and sleep product sides are especially hazardous when after-market mattresses with thicker depth dimensions than the OEM mattress are used in products with flexible (
From June 1, 2010 to June 1, 2020, CPSC negotiated five consumer-level recalls involving crib mattresses to mitigate against risks of flammability and suffocation. Four recalls involved non-compliance with mandatory federal flammability requirements. These four recalls included approximately 80,000 units in total. The Commission cannot provide an exact number of units because of a lack of differentiation between crib and adult mattress populations in recalls that included both. The fifth recall of crib mattresses involved a dimensional issue, where the crib mattress models were ill-fitting, presenting an entrapment hazard. This recall included approximately 300,000 units.
The Commission is aware of two international voluntary standards pertaining to crib mattresses:
• BS EN 16890:2017—Children's Furniture—Mattresses for cots and cribs—Safety requirements and test methods (BS EN 16890); and
• Australian/New Zealand Standard 8811.1:2013—Methods of testing infant products (AS/NZS 8811.1).
Table 5 compares each of these international standards to ASTM F2933-19 to assess how each standard addresses the identified hazard patterns and other common hazards. Tab B of Staff's NPR Briefing Package contains a more detailed analysis of the comparison, and how each standard addresses the hazard patterns described in Table 5.
With the exception of mattress firmness, the Commission concludes that ASTM F2933-19 is equivalent to, or more stringent than, AS/NZS 8811.1 or EN 16890 because it more fully addresses the hazard patterns identified by CPSC staff in the reported incident data. Compared to these international standards, ASTM F2933-19 is more comprehensive because it also addresses non-full-size crib mattresses and after-market mattresses for play yards and non-full-size cribs. Furthermore, the Commission notes that ASTM F2933-19 was developed through collaboration between CPSC staff and stakeholders, and has been revised three times in the attempt to address incident data provided by CPSC staff. Therefore, the Commission concludes that ASTM F2933-19, when modified to include a test for mattress firmness based on sections 6 and 8 of AS/NZS 8811.1:2013, is more appropriate than AS/NZS 8811.1:2013 or EN 16890 to address hazard patterns associated with crib mattresses.
The ASTM Committee F15 on Consumer Products first published the voluntary standard for crib mattresses in 2013, as ASTM F2933-13,
• Sharp points and sharp edges,
• Small parts,
• Lead and other toxic substances in paints,
• Finger entrapment,
• Mattress dimension conformity,
• Mattress thickness, and
• Marking and labeling.
Since 2013, ASTM has revised and updated the voluntary standard three times to address safety issues, as outlined below:
• Revised warning label permanency requirements in 5.6.1, to include requirement that “[n]on-coated paper warning label shall not be applied on either side of sleeping surface.” Added a note under this section, stating that non-coated paper label may absorb water and can deteriorate.
• Revised scope to include a new section 1.5, stating the standard was developed in accordance with internationally recognized principles on standardization.
• Added definition of “after-market mattress for play yard or non-full-size crib,” to section 3, Terminology.
• Added a new requirement for after-market mattresses for play yards and non-full-size crib mattresses in section 5, General Requirements, stating that after-market mattresses for soft-sided and non-rectangular, rigid-sided products shall have the same thickness, floor support structure, and attachment method as the mattress it is intended to replace and shall meet the specifications of Mattress Vertical Displacement test from ASTM F406-19,
• Added additional marking and labeling requirements for after-market mattresses in sections 7.5 through 7.7. To comply with these sections, after-market mattresses and their retail packaging shall include specified suffocation warning language related to hazardous gaps and stacked mattresses. Sections 7.5 and 7.6 have additional requirements that distinguish between types of products. Section 7.5 has requirements specific to mesh/fabric-sided and rigid-sided, non-rectangular products, including as follows: After-market mattresses shall have all the warnings that the original manufacturer had and provide instructions that are on the original mattress, and both the after-market mattress and the retail packaging shall identify the brand and model numbers of products in which it is intended to be used. Section 7.6 contains requirements specific to rigid sided rectangular products including as follows: After-market mattresses and their retail packaging shall have a specified statement regarding mattress dimensions and fit.
• Added a new requirement for mattress seam stitching in section 5, General Requirements, requiring that all seam stitching that is accessible to the occupant be lock stitching.
In addition to the general requirements typically found in other ASTM juvenile product standards, such as requirements for openings, label permanency, and the prohibition of sharp points/edges, small parts, and lead in paints, section 5 of ASTM F2933-19 contains the following four additional requirements that apply specifically to mattresses for cribs, non-full-size-cribs, and to after-market mattresses for non-full-size cribs and play yards:
•
•
•
•
ASTM developed ASTM F2933 to mitigate the risk of injury associated with the use of crib mattresses. Hazard mitigation strategies include performance requirements and instructions and on-product warnings to help inform caretakers of the primary hazards during use of the product. Based on CPSC staff's Engineering, Human Factors, and Health Sciences assessments, Tabs B, C, and E of Staff's NPR Briefing Package, respectively, the requirements in the current voluntary standard, ASTM F2933-19, adequately address the hazard patterns related to expanding or inflating crib mattresses, mattresses falling apart, and most hazards associated with multiple contributing factors, or other hazards. However, ASTM F2933-19 does not adequately address the most prevalent or severe identified hazards associated with the use of crib mattresses, such as coil spring issues, face in mattress, fit issues, found prone, and softness. The warning labeling for factors within multiple contributing factors (such as, face in mattress, found prone, and softness) are also inadequate. Accordingly, the Commission proposes additional requirements in the NPR to make the standard more stringent, to further reduce the risks of death and injury from these hazard patterns. Table 6 summarizes CPSC's assessment of the adequacy of ASTM F2933-19 to address the identified hazard patterns.
Laceration hazards due to an exposed coil or spring accounted for 124 of the 440 incident reports (38% of nonfatal incidents). Currently, ASTM F2933-19 does not address this hazard. A cyclic test could address this hazard, by loading and unloading any mattress that contains coils or springs for a set number of cycles, to exercise metal coil springs and identify springs that cannot withstand normal use without breaking, or that may otherwise break the surface of the mattress.
In July 2018, the ASTM Crib Mattress Cyclic Testing task group discussed a cyclic impact test based on the Mattress Support Vertical Impact Test from section 7.4 of ASTM F1169-19 (the standard for full-size cribs). At the F15.66 Crib Mattress subcommittee meeting held in October 2018, the subcommittee discussed both the Mattress Support Vertical Impact Test and the Mattress Durability Roller Testing for spring/coil mattresses, based on ASTM F1566,
On April 29, 2019, CPSC staff sent a letter to the subcommittee chair in response to ballot F15 (19-04), stating staff's initial test results. In the task group meeting in July 2019, staff and one manufacturer discussed the results of their continued testing and refined the requirements. The task group focused testing on the Mattress Support Vertical Impact Test because this test uses the same equipment employed in full-size crib testing. After replicating the full-size crib impact test (45 pounds dropped 750 times), staff assessed that the test was too onerous. During task group discussions, consensus was to lower the weight to 30 pounds and increase the number of cycles to 1,000.
ASTM has not held additional task group meetings or issued ballots on this issue since the July 2019 task group meeting. The Commission's proposed requirement in the NPR to address coils and springs is based on the last work of the task group, and the test requires a 30-pound impactor drop, similar to the full-size crib standard, on a mattress in four specified locations for a total of 1000 impacts. Tab B of Staff's NPR Briefing Package provides additional details of staff's work to address coil and spring lacerations and the proposed cyclic test.
Fit issues are associated with 108 of 439 incidents; 20 were fatal, and 88 were nonfatal. In these reports, gaps between the crib mattress and the crib rail or play yard mesh, on one or more areas around the perimeter of a crib mattress, created a wedging or entrapment hazard. Reports of mattresses that fail to expand, compress, or buckle, indicate the potential to form hazardous gaps between the corner of a crib and the corner of the mattress. This hazard can arise when a fitted sheet is placed on the mattress, creating large corner gaps that could lead to entrapment. Fit issues can also occur when a mattress is not dimensionally appropriate for use with a specific crib.
ASTM F2933-19 contains a mattress dimensional conformity test intended to address hazardous gaps between the edge of a crib and the mattress. However, staff testing found that tight-fitting sheets over crib mattresses can create gaps between the corners of the mattress and the interior corner of the crib, creating an entrapment hazard. ASTM F2933-19 does not adequately addresses this mattress compression issue that creates an entrapment hazard between a full-size crib mattress and the side or corner of a full-size crib.
For further examination, staff obtained 11 full-size crib mattresses and eight 100 percent cotton full-size crib mattress sheets to investigate this reported hazard pattern. Staff washed four sets of sheets twice in hot water then dried them at the highest temperature setting; staff did not wash the remaining four sheet sets. Staff measured the length and width of two corner seams of the eight mattress sheets with the corner seams straightened. Staff measured length and width by holding the innermost ends of two adjacent corner seams, separating them until a straight edge was formed, and measuring the straight edge.
Staff set aside for mattress testing the smallest sheet of each group, as determined by the smallest length and width dimensions. The sheets were then fitted on the mattresses to determine the change in dimensions and whether any potentially hazardous gaps were created. Staff shared the test results, detailed in Tab B of Staff's NPR Briefing Package, with the subcommittee chair on March 20, 2020, but no ASTM subcommittee or task group meetings for crib mattresses have occurred since then, due to the COVID-19 pandemic. To strengthen the standard, the Commission proposes in the NPR to add a test for full-size mattresses to assess compression and fit issues caused by a tight-fitting sheet. This additional test may also help with complaints around mattresses inflating or expanding,
ASTM F2933-19 addresses dimensional requirements for non-full-size crib mattresses in two places: Section 5.7, which addresses mattresses “supplied with” a non-full-size crib (OEM mattresses), and section 5.9, which addresses after-market mattresses for non-full-size cribs (mattresses purchased separately from a crib, which are not intended by the OEM as a replacement mattress). Dimensional requirements for non-full-size crib mattresses are a key requirement in ASTM F2933-19, because size requirements prevent hazardous gaps from forming between the edge of a mattress and the side of the crib, where infants can become entrapped and suffocate. Table 7 presents the types of crib mattresses covered by ASTM F2933 and the current dimensional requirements for each mattress type.
Table 7 demonstrates a gap in the dimensional requirements for after-market, rectangular-shaped, non-full-size crib mattresses in section 5.9 ASTM F2933-19 (shaded), which does not appear to have a performance requirement for mattress dimension. The Commission proposes in the NPR to address this gap by expanding the non-full-size crib mattress requirements in 5.7.2, which currently only apply to OEM mattresses, to apply to all non-full-size crib mattresses.
Although the after-market requirements in section 5.9 are purportedly intended to apply to “
Although ASTM F2933-19 contains no dimension requirements for after-market, rectangular-shaped, non-full-size crib mattresses, the standard does contain warning requirements pertaining to the size of after-market mattresses for rectangular non-full-size cribs. Staff's NPR Briefing Package details these warnings requirements in section 7 of ASTM F2933-19. Generally, solely relying on a warning label puts the onus on the consumer to read, understand, and follow the direction to only use an OEM mattress. CPSC staff concluded that warnings alone are insufficient to address the hazards associated with ill-fitting, after-market, non-full-size crib mattresses.
CPSC staff separated the hazard patterns for found prone, face into mattress, and softness in the incident review, as reflected in Table 6. However, due to available details in each incident, CPSC staff considers these hazard patterns to be related. Accordingly, the Commission's proposed modifications in the NPR related to each of these hazard patterns may address incidents associated with all three hazard patterns.
Staff found that in 57 percent (66 out of 116) of the reported fatalities and three reported nonfatal incidents (1%), the infant was found in a prone position (face down) with no mention of whether the face of the child was in contact with the crib mattress or crib sheet, and no mention of whether the face was obstructed by other crib bedding or other items in the sleep environment. However, in 11 percent (13 out of 116) of fatalities, when discovered, the child was found prone and the report specifically indicated the face of the child was in contact with a crib mattress or crib sheet covering the crib mattress. Based on the available information about each fatality, staff found that some reports indicate that bedding was present in the sleeping environment, but bedding was not touching the infant or did not appear to be a contributing factor in the death. Additionally, staff found that in 11 percent (36 out of 323) of the nonfatal incidents, the report stated that a crib mattress inner cushioning was too soft. Although these incidents did not involve a fatality, soft bedding, such as pillows and comforters, is associated with infant fatalities, and staff deduces that an excessively soft mattress (
Pillows, and other soft, pillow-like objects can pose a suffocation hazard to
Other than through warnings, ASTM F2933-19 does not address mattress firmness or softness hazards potentially related to prone and face into mattress incidents. ASTM F2933-19 contains warning requirements regarding prone positioning; however, based on CPSC staff's analysis, warnings alone are inadequate to address the suffocation hazard. The Commission proposes in the NPR a performance requirement to measure mattress firmness, to address some prone-positioning deaths
After evaluating the hazards associated with soft surfaces, the Commission proposes in the NPR additional performance requirements to make the standard more stringent, to further reduce the risk of death and injury associated with mattresses that are too soft and have the ability to conform to an infant's face. Although the warning label change and the firmness test will not make prone sleeping safe, they may help to reduce the instances in which an infant maneuvers into a prone position with its face
Universally, labeling experts view warning about a hazard as less effective at addressing hazards than either designing the hazard out of a product, or guarding the consumer from the hazard. The use of warnings is lower in the hazard-control hierarchy than design-based approaches because the effectiveness depends on persuading consumers to alter their behavior in some way to avoid hazards, rather than eliminating hazards or inhibiting exposure to hazards. Therefore, when a standard relies on warnings to address a hazard, warning statements must be as strong as possible;
• A description of the hazard;
• information about the consequences of exposure to the hazard; and
• instructions regarding appropriate hazard-avoidance behaviors.
Section 7 of ASTM F2933-19 specifies requirements for marking and labeling for full-size crib mattresses, non-full-size crib mattresses, and after-market mattresses for play yards and non-full-size cribs. Based on CPSC staff's examination of literature, incident data, and consumer feedback, the crib mattress warnings specified in ASTM F2933-19 do not adequately address these warning elements regarding the identified hazards. While there are warnings pertaining to infant positioning, soft bedding, and gap entrapment, the wording and formatting of the warning message needs to be improved to communicate the hazards effectively. Below we summarize the relevant warnings in ASTM F2933-19 and the Commission's concerns with the warnings.
Regarding positioning babies on their backs to sleep, ASTM F2933-19 requires the following warning:
Failure to follow these warnings could result in serious injury or death. To prevent deaths, the U.S. Consumer Product Safety Commission (CPSC), the American Academy of Pediatrics (AAP), and the National Institute of Child Health and Human Development (NICHD) recommend the following:
To reduce the risk of Sudden Infant Death Syndrome (SIDS) and suffocation, pediatricians recommend healthy infants be placed on their backs to sleep, unless otherwise advised by your physician.
Regarding soft bedding, ASTM F2933-19 includes the following warnings:
• Infants can suffocate on soft bedding. Never place a pillow or comforter under sleeping infant for additional padding or as a mattress substitute.
• Do not cover the heads of babies with a blanket or over bundle them in clothing and blankets. Overheating can lead to SIDS.
• [For full-size crib mattresses] Only use sheets and mattress pads designed specifically for crib mattresses.
• [For non-full-size crib mattresses] Only use sheets and mattress pads designed specifically for this mattress size.
Regarding gaps, in addition to specifying consumers use only sheets and mattress pads designed for the crib mattress, ASTM F2933-19 includes the following warnings:
• [For full-size crib mattresses] Do not use this mattress in a crib having interior dimensions that exceed 28
• [For non-full-size rigid sided rectangular products] Check for proper fit of the mattress. This mattress measures ___ long, ___ wide, and ___ thick when measured from seam to seam. (The blank is to be filled in.)
• [For play yards and non-full-size cribs] Suffocation hazard: Babies have suffocated:
• In gaps between wrong-size mattress and side walls of product.
• Between the side walls and extra padding, such as stacked mattresses.
ALWAYS check mattress fit by pushing mattress tight to one corner. Look for any gaps between the mattress and the side walls. If this gap is larger than 1 in., the mattress does not fit and should NOT be used.
NEVER stack with another mattress. Use only ONE mattress.
For full-size crib mattresses, staff's review shows that these warnings do not provide consumers with enough information about the gap entrapment hazard. Reports for at least 14 of the cases resulting in death describe gaps involving a full-size crib mattress (at least 119 incident reports including complaints with and without injuries). Regarding this hazard, the warnings in ASTM F2933-19 inform consumers that only the full-size crib mattress is to be used in a crib with the specified dimensions (full-size crib dimensions in compliance with 16 CFR part 1219), and that consumers are to use only sheets and mattress pads designed specifically for crib mattresses. A single statement about specified dimensions is not sufficient, given the prevalence of this hazard and that factors such as rounded edges and compression can increase the size of side wall or corner gaps. The Commission proposes to modify these warnings to present more clearly and accurately the hazard information, including the hazard information for full-size crib mattresses.
The Commission has additional concerns with the safety information requirements in ASTM F2933-19, which undercut the effectiveness of the communication of the identified hazards. These concerns include, but are not limited to, the following:
• The definition of “conspicuous” in section 3 is ambiguous;
• the warning labels do not have a clear and comprehensive hazard identifier;
• the packaging requirements for marking and labeling are limited and exclude full-size crib mattresses;
• there are no requirements for warnings in instructional literature;
• the warning message includes a significant amount of superfluous text, resulting consequently in warning labels that are more difficult to understand and less likely to be read in their entirety; and
• the requirements in section 7 are worded and organized poorly, which may lead to confusion among manufacturers, test labs, and others viewing the standard.
The Commission proposes in the NPR to improve the requirements for safety information in ASTM F2933-19 to address the above concerns and further reduce the risk of injury and death from the identified hazards. In a side-by-side redline of the current and proposed labeling provisions in the Appendix to Tab C of Staff's NPR Briefing Package, staff identifies the specific weaknesses of ASTM F2933-19 for addressing the hazards, and provides explanations for the proposed modifications.
The Commission proposes in the NPR substantial modifications to the requirements for marking and labeling specified in ASTM F2933-19, including a new section on instructional literature. Figure 1 shows a comparison of full-size crib mattress warning labels compliant with ASTM F2933-19 current requirements versus the NPR's proposed labeling requirements.
Proposed modifications to safety information in the NPR consider improvements to the safety information from ASTM F15.66 and additional members of the ASTM F15 committee on consumer products.
In 2016, ASTM juvenile products standards began adopting “Ad Hoc” labeling recommendations, to increase the consistency of on-product warning design among juvenile products, and to address numerous warning format issues related to capturing consumer attention, improving readability, and increasing hazard perception and avoidance behavior. The warning format recommendations from Ad Hoc are based primarily on the requirements of ANSI Z535.4, while also accounting for the wide range and unique nature of durable nursery products, the concerns raised by industry representatives, and CPSC staff's recommendations associated with durable nursery product rulemaking projects over the past several years. These recommendations include requirements for the following:
• Content that is “easy to read and understand,” not contradicted elsewhere on the product, and in English, at a minimum;
• conformance to the following sections of ANSI Z535.4-2011:
○ ANSI Z535.4, sections 6.1-6.4, which include requirements related to safety alert symbol use, signal word selection, and warning panel format, arrangement, and shape;
○ ANSI Z535.4, sections 7.2-7.6.3, which include color requirements for each panel; and
○ ANSI Z535.4, section 8.1, which addresses letter style;
• minimum text size and text alignment; and
• the use of bullets, lists, outline, and paragraph form for hazard-avoidance statements.
The Ad Hoc recommendations also include text for general labeling issues, such as labeling permanency, and content related to manufacturer contact
The Commission proposes in the NPR a mandatory standard for crib mattresses that incorporates by reference ASTM F2933-19 with modifications to make the standard more stringent, to further reduce the risk of injury associated with crib mattresses. Below we summarize the proposed modifications in the NPR.
To further reduce the risk of infant lacerations from exposed coils and springs, the Commission proposes in the NPR to require a cyclic loading test for all crib mattresses that use coils and springs, as follows:
1. Mattress shall be tested in an enclosed frame measuring 29 inches x 53 inches (737 mm by 1346 mm) for the purpose of restricting mattress movement. A crib meeting the requirements of ASTM F1169-19 would suffice.
2. The mattress can be placed on top of a
3. An impactor with the dimensions of the vertical impactor of ASTM F1169-19 weighing 30 lbs. shall be dropped from a height of 6 inches from the top of the mattress surface to the bottom of the impactor, 250 times in four locations (specified in Figure 1), for a total of 1,000 cycles. Cyclic loading rate shall be one drop every 4 ± 1 seconds.
4. At the conclusion of the cyclic loading test, the mattress shall be removed from the test enclosure and visually inspected for exposed wires or coil springs.
To further reduce the risk of injury associated with corner gap entrapment from compression by fitted sheets, the Commission proposes in the NPR the following new test for full-size crib mattresses:
1. To condition the sheet for compression testing, a store-bought fitted mattress sheet intended for the tested mattress size, consisting of 100 percent cotton, shall be washed in hot water (50 °C [122 °F] or higher) and dried a minimum of two times on the highest setting, using household textile laundering units.
2. The shrunken fitted sheet shall be placed fully on the mattress, such that each sheet edge is wrapped fully around and under the mattress.
3. The mattress, with the shrunken sheet, shall meet the
3.1. A full-size crib mattress shall be measured according to section 6.2 of the standard.
3.1.1. After dimensional measurements are taken, while no force is being applied, measure the corner gap between the adjoining Walls C and D and the crib mattress. See Figure 1 for illustration. The gap shall not exceed 1.75 in.
3.1.1.1. Corner gap measurements shall be repeated after rotating the mattress 180° and repositioning it in the corner following sections 6.2.2.1 and 6.2.2.2 of ASTM F2933-19.
The Commission is not aware of incidents related to non-full-size crib mattresses compressing when sheets are installed. Therefore, at this time, the Commission is not proposing a similar
To further reduce the risk of injury associated with after-market non-full-size crib mattresses, the Commission proposes in the NPR to require a dimensional performance requirement for all non-full-size crib mattresses. The Commission proposes that the current performance requirements for OEM non-full-size crib mattresses in section 5.7.2 of ASTM F2933-19 be modified to apply to all non-full-size crib mattresses, regardless of whether the mattress is sold with a crib, and regardless of the shape of the mattress. The size and thickness requirements for OEM non-full-size crib mattresses in section 5.7.2 of ASTM F2933-19 repeat the requirements for non-full-size crib mattresses in section 5.17 of ASTM F406. To preclude the size requirements in each standard from unintentionally diverging in the future, the Commission proposes in the NPR to revise section 5.7.2 to refer to the requirements for non-full-size crib mattresses in F406, rather than repeating the same requirements in F2933.
To accommodate the modification for non-full-size cribs in section 5.7, the Commission proposes in the NPR to remove references to after-market non-full-size crib mattresses from section 5.9 of ASTM F2933-19, such that section 5.9 focuses solely upon performance requirements for after-market play yard mattresses.
The Commission also notes an inconsistency in the language of ASTM F2933-19 section 5.9.1.3, which requires that a “replacement mattress” for a play yard bassinet with a bassinet attachment meet certain specifications in ASTM F2194, when tested with each brand and model it is intended to replace. This requirement for bassinet mattresses appears in the section for “after-market” mattresses. Section 3.1.1 of ASTM F2933-19 specifically exempts “replacement” mattresses from the term “after-market,” because “replacement” mattresses are supplied by an OEM and are equivalent to the original mattress. The Commission proposes in the NPR to clarify that the requirements in section 5.9.1.3 apply to after-market mattresses, by replacing the term “replacement,” with the word “after-market.”
Appendix B to Tab B of Staff's NPR Briefing Package contains a redline of the proposed changes to sections 5.7.2 and 5.9 of ASTM F2933-19. The Commission invites comments on this proposal. Staff intends to continue to work with ASTM to address concerns with exempting after-market, rectangular-shaped, non-full-size crib mattresses from performance requirements.
To further reduce the risk of infant suffocation associated with surface softness in crib mattresses, the Commission proposes the following mattress firmness test for all crib mattresses within the scope of the standard, based on a test for mattress firmness in section 8 of AS/NZS 8811.1:2013:
1. Mark three equidistant points along the longitudinal center line, with one at the center and the other two equidistantly between the center and the edge of the mattress. Choose one more “worst-case” scenario test location(s) where an infant's head might lie in a particularly soft spot, or an infant's nose or mouth might contact a protrusion above the sleep surface.
2. Hold the test fixture with its base horizontally, and rotate it so the feeler arm is aligned with the center line of the sleep surface, and pointing in the same direction for each test; then gently set down the fixture on one of the test locations, ensuring that the edge of the bottom disk does not extend beyond the edge of the sleep surface.
3. If the level indicates that the feeler arm is approximately level when the fixture is resting on the sleep surface, observe whether the feeler arm makes any contact with the top of the sleep surface or cover. If the feeler arm is not level, decompress the mattress, allow it to settle, and start again. If the feeler arm contacts the sleep surface even when the test fixture is tilted back so as to raise the feeler arm, assume that such contact would occur had the fixture come to rest horizontally.
4. Repeat steps at remaining locations.
As detailed in Tab C of Staff's NPR Briefing Package, and the Appendix to Tab C, the Commission proposes in the NPR to include a significant number of modifications to the requirements for the safety information that accompanies crib mattresses, including warning labels, packaging, and instructions. Labeling modifications include the following:
• Improved definition of “conspicuous” to clarify that the warning label's placement must make it visible to someone who positions the mattress for use;
• Updated the general marking and labeling requirements;
• Improved warning labels and examples;
• Re-organized and clarified the marking and labeling requirements for manufacturers, test labs, and other viewers of the standard;
• Added warning requirements for full-size crib mattress packaging and improved the warning requirements for packaging of after-market mattresses for play yards and non-full-size cribs; and
• Added a new section on instructional literature, which provides an additional medium by which to communicate safe-use information.
These modifications are intended to further reduce the risk of death and serious injury associated with crib mattresses, such as SUID related to prone positioning of infants, soft bedding in sleep areas, and hazardous gaps between crib mattresses and product sides. The majority of the modifications incorporate recommendations from stakeholders participating in ASTM F15, with several deviations based on CPSC staff's further consideration of the available data, which have not yet been reviewed by ASTM. While safety information is unlikely to effectively address the identified hazards, these modifications are likely to support the effectiveness of the proposed performance requirements, increase the likelihood of consumers understanding the hazards, and clarify the requirements for manufacturers, test labs, and other viewers of the standard.
The CPSA establishes certain requirements for product certification and testing. Products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard or regulation under any other act enforced by the Commission, must be certified as complying with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a). Certification of children's products subject to a children's product safety rule must be based on testing conducted by a CPSC-accepted third party conformity
The Commission published a final rule,
All new NORs for new children's product safety rules, such as the crib mattress standard, require an amendment to part 1112. To meet the requirement that the Commission issue an NOR for the crib mattress standard, as part of this NPR, the Commission proposes to amend the existing rule that codifies the list of all NORs issued by the Commission to add crib mattresses to the list of children's product safety rules for which the CPSC has issued an NOR.
Test laboratories applying for acceptance as a CPSC-accepted third party conformity assessment body to test to the new standard for crib mattresses would be required to meet the third party conformity assessment body accreditation requirements in part 1112. When a laboratory meets the requirements as a CPSC-accepted third party conformity assessment body, the laboratory can apply to the CPSC to have 16 CFR part 1241,
The statutory definition of “durable infant or toddler product” in section 104(f) applies to all of section 104 of the CPSIA. In addition to requiring the Commission to issue safety standards for durable infant or toddler products, section 104 of the CPSIA also directed the Commission to issue a rule requiring that manufacturers of durable infant or toddler products establish a program for consumer registration of those products. Public Law 110-314, section 104(d).
Section 104(f) of the CPSIA defines the term “durable infant or toddler product” and lists examples of such products:
(f) DEFINITION OF DURABLE INFANT OR TODDLER PRODUCT. As used in this section, the term “durable infant or toddler product”—
(1) means a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years; and
(2) includes—
(A) full-size cribs and non-full-size cribs;
(B) toddler beds;
(C) high chairs; booster chairs, and hook-on-chairs;
(D) bath seats;
(E) gates and other enclosures for confining a child;
(F) play yards;
(G) stationary activity centers;
(H) infant carriers;
(I) strollers;
(J) walkers;
(K) swings; and
(L) bassinets and cradles.
The product categories listed in section 104(f)(2) of the CPSIA represent a non-exhaustive list of durable infant or toddler product categories, including infant sleep products such as cribs (full-size and non-full-size), toddler beds, bassinets and cradles, and play yards.
In 2009, the Commission issued a rule implementing the consumer registration requirement. 16 CFR part 1130. As the CPSIA directs, the consumer registration rule requires each manufacturer of a durable infant or toddler product to: Provide a postage-paid consumer registration form with each product; keep records of consumers who register their products with the manufacturer; and permanently place the manufacturer's name and certain other identifying information on the product. When the Commission issued the consumer registration rule, the Commission identified six additional products as “durable infant or toddler products”:
Children's folding chairs;
changing tables;
infant bouncers;
infant bathtubs;
bed rails; and
infant slings.
This Commission proposes in the NPR to amend part 1130 to include “crib mattresses,” as defined in ASTM F2933, including full-size crib mattresses, non-full-size crib mattresses, and after-market mattresses for play yards and non-full-size cribs, as durable infant or toddler products. The Commission proposes to include “crib mattresses” as a “durable infant or toddler product” because: (1) They are intended for use, and may be reasonably expected to be used, by children under the age of 5 years; (2) they are products similar to the products listed in section 104(f)(2) of the CPSIA; (3) they are used in conjunction with other durable infant or toddler products used for unattended infant sleep, such as cribs, bassinets, and play yards; and (4) CPSC cannot fully address the risk of injury associated with such infant sleep products without addressing the hazards associated with the use of crib mattresses in these infant sleep products.
The Commission proposes to incorporate by reference ASTM F2933-19, with modifications to further reduce the risk of injury associated with crib mattresses. The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. For a proposed rule, agencies must discuss in the preamble of the NPR ways that the materials the agency proposes to incorporate by reference are reasonably available to interested persons or how the agency worked to make the materials reasonably available. In addition, the preamble of the proposed rule must summarize the material. 1 CFR 51.5(a).
In accordance with the OFR's requirements, section V of this preamble summarizes the provisions of ASTM F2933-19 that the Commission proposes to incorporate by reference. ASTM F2933-19 is copyrighted. By permission of ASTM, the standard can be viewed as a read-only document during the comment period on this NPR, at:
The Administrative Procedure Act (APA) generally requires that the effective date of a rule be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). The Commission proposes a 6-month effective date for a final rule on crib mattresses. Barring evidence to the contrary, 6 months is typically sufficient time for suppliers to come into compliance with a new standard, and this amount of time is typical for other CPSIA section 104 rules. Six months is also the period that the Juvenile Products Manufacturers Association typically allows for products in their certification program to shift to a new standard once that new standard is published. Therefore, juvenile product manufacturers are accustomed to adjusting to new standards within this time. The Commission notes that this NPR for crib mattresses contains additional testing requirements and labeling changes, and that the current global COVID-19 pandemic has affected supply chains. The Commission invites comments, particularly from small businesses, regarding the amount of time they will need to come into compliance with a final rule.
The Regulatory Flexibility Act (RFA) requires that agencies review a proposed rule for the rule's potential economic impact on small entities, including small businesses. Section 603 of the RFA generally requires that agencies prepare an initial regulatory flexibility analysis (IRFA) and make the analysis available to the public for comment when the agency publishes an NPR. 5 U.S.C. 603. Section 605 of the RFA provides that an IRFA is not required if the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. The IRFA must describe the impact of the proposed rule on small entities and identify significant alternatives that accomplish the statutory objectives and minimize any significant economic impact of the proposed rule on small entities. Specifically, the IRFA must contain:
A description of the reasons why action by the agency is being considered;
a succinct statement of the objectives of, and legal basis for, the proposed rule;
a description of, and where feasible, an estimate of the number of small entities to which the proposed rule will apply;
a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities subject to the requirements and the type of professional skills necessary for the preparation of reports or records; and
identification, to the extent possible, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule.
Additionally, the IRFA must describe any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and minimize any significant economic impact of the proposed rule on small entities. CPSC staff prepared an IRFA for this rulemaking which appears at Tab F of the Staff's NPR Briefing Package. We provide a summary of the IRFA below.
An explanation of why the agency is considering issuing a mandatory rule for crib mattresses and a statement of the objectives of, and legal basis for, the proposed rule, are set forth in section I of this preamble. Section II of this preamble describes the types of crib mattresses within the scope of the NPR, the market for crib mattresses, and the use of crib mattresses in the United States.
Manufacturers of crib mattresses are typically categorized under the NAICS category 337910 (Mattress Manufacturing). The Small Business Administration (SBA) guidelines consider mattress manufacturing establishments to be small if they have fewer than 1,000 employees.
Staff identified 26 manufacturers and importers of full-size and non-full-size crib mattresses, and after-market play yard mattresses. A majority of the 26 firms have under 50 employees. Most of the firms are domestic manufacturers (14) or domestic importers (8). Four firms are foreign. Sixteen of these 26 firms meet the SBA criteria for small businesses, and 10 firms would be considered large according to the SBA criteria.
Online registries are widely available for new crib mattresses. Producers supply crib mattresses to the U.S. market via electronic commerce websites, such as
The majority of crib mattresses on the market are full-size crib mattresses. Staff estimates that 40 percent of crib mattresses on the market are coil/innerspring mattresses, and approximately 60 percent of crib mattresses are foam-core mattresses.
Of the 16 small manufacturers and importers identified by staff, 12 (8 manufacturers and 4 importers) are members of the JPMA, but staff cannot determine how many crib mattresses are currently certified to ASTM F2933-19. Many of the firms that would be subject to the draft proposed rule are known to produce a variety of children's products that are already subject to CPSC children's product safety rules, and therefore, are familiar with such requirements.
Manufacturers and importers of crib mattresses would be responsible for ensuring that their products comply with the requirements of the proposed rule. If a crib mattress does not comply with the requirements, the manufacturers or importers will need to modify the product or cease manufacture or importation. Importers might be able to work with their manufacturers to supply compliant mattresses and could potentially switch suppliers if their current supplier is unwilling to supply current mattresses. Alternatively, importers might simply drop the noncompliant mattresses from their product lines.
Additionally, as required by section 14 of the CPSA and its implementing regulations, manufacturers and importers of crib mattresses would be required to certify that their crib mattresses comply with the requirements of a final rule, if issued, based on the results of third party testing by a CPSC-accepted third party conformity assessment body (
The majority of crib mattresses currently available on the market will not require extensive modification to comply with the proposed rule. Staff reports that the majority of crib mattresses they tested already meet the performance requirements of the proposed rule. We do not know the exact costs of modifying crib mattresses to comply with the proposed rule, which would vary by product model. Modifying crib mattresses to comply with the compression standard could be as simple as adding a perimeter border wire to the mattress edge or an anti-sag weight distribution bar to the mattress structure. However, staff believes it possible that a required modification could be prohibitively expensive, and therefore, the proposed rule may result in the removal of certain crib mattresses from commerce.
Generally, the costs associated with providing instructional materials are low on a per-unit basis. Many firms already provide instructions with their products, but they may have to change the content or formatting of the instructions to comply. Likewise, the cost of warning labels is generally low, especially if some warning labels are already present, and the product does not need to be modified to accommodate new labels.
If issued, a final rule would require all manufacturers and importers of crib mattresses to meet additional third-party testing requirements under section 14 of the CPSA. Third-party testing requirements will include any physical and mechanical test requirements specified in the final crib mattress rule. Based on information from a testing laboratory, the cost of testing to the current version of ASTM F2933 is $200 to $250 per sample. The additional testing that would be required by the proposed rule would increase this cost by $50 to $75 per sample tested. Thus, the total cost of the third-party testing would be $250 to $325 per sample. Given that the average number of crib mattress models per firm is approximately 12, the cost of the third-party testing could be about $3,000 to $3,900, if only one model per sample were required to provide a high degree of assurance that the model complied with the requirements of the rule.
Additionally, according to conformity assessment bodies that staff contacted, for each mattress model to be tested, the firm will need to provide the crib or play yard equipment intended to be used with the mattress being tested. However, to comply with ASTM F2933-19 and other CPSC requirements for children's products, the costs of supplying a crib, crib mattress, or play yard to the conformity assessment body are already borne by the producer for testing under previously adopted rules and standards. Regardless, third-party testing facilities have indicated that they are unable to store equipment that will be needed or used during testing, such as cribs or play yards, for long periods of time. Therefore, ensuring that all crib equipment needed for testing arrives at the testing lab at the appropriate time may pose a logistical burden, even if there is no increase in monetary costs for freight or shipping.
Additional costs of the proposed testing would include the cost of the 100 percent cotton sheets used during testing.
For a subset of mattresses,
Based on the foregoing, for a typical manufacturer or importer with 12 crib mattress models that requires only one test per model to provide a high degree of assurance, the full cost of third party testing will be approximately $3,000 to $3,900, plus $90 in costs for fitted-sheet testing materials, and $720 for the cost of used test mattresses, for a total of $3,810 to $4,710 or an average of $318 to $393 per model.
Generally, based on Small Business Administration guidelines, CPSC considers impacts that exceed one percent of a firm's revenue to be
Given that a substantial number of mattresses already comply with the requirements of the proposed rule, and some of the testing costs are already being borne by firms that certify to the current voluntary standard, the Commission considers it unlikely that the rule would have a significant impact on a substantial number of small entities. However, we request comments on the costs of the proposed rule, or impediments to modifying existing crib mattress products to conform to the proposed rule, especially those that would result in the removal of the mattress product from the market and other impacts of the draft proposed rule on small manufacturers and importers.
CPSC staff did not identify any other federal rules that duplicate, overlap, or conflict with the proposed rule.
The Commission considered the following alternatives to the proposed rule to reduce the impact on small businesses. The Commission requests comments on these alternatives or other alternatives that could reduce the potential burden on small entities.
The Commission considered proposing to incorporate by reference ASTM F2933-19, without any modifications, and to direct staff to work with ASTM to improve test methods and the firmness of crib mattresses in a future revision of the voluntary standard. This alternative could reduce the impact of the rule on small businesses, but, according to CPSC staff, the reduction would not be expected to be very significant. As discussed in the IRFA analysis in Tab F of Staff's NPR Briefing Package, and in this preamble, many crib mattresses probably already comply with the proposed standard. The additional testing costs associated with the modifications to ASTM F2933-19 in the proposed rule would only increase the testing costs by $50 to $75 per sample. Moreover, adopting ASTM F2933-19 without modification would not address all of the identified hazard patterns associated with crib mattresses.
Under Section 14(d)(4)(C)(ii) of the CPSA, the Commission cannot “provide any alternative requirements or exemption” from third party testing for “durable infant or toddler products,” as defined in section 104(f) of the Consumer Product Safety Improvement Act of 2008. Consequently, the Commission cannot create a small batch exemption absent a statutory change.
Typically, the Commission proposes an effective date of 6 months for durable nursery product rules. Six months is generally considered sufficient time for suppliers to come into compliance with a proposed durable infant or toddler product rule, unless specific circumstances evince the need for a longer effective date. Additionally, 6 months from the change in a voluntary standard is the time frame that JPMA uses for its certification program, so compliant manufacturers are used to a 6-month time frame to comply with a modified standard. The Commission proposes a 6-month effective date for a final rule on crib mattresses.
One alternative the Commission will consider to reduce the impact of a mandatory rule on small firms is to set an effective date later than 6 months. Implementing a later effective date could mitigate the effects of the rule on small businesses. For businesses that would choose to exit the crib mattress market, or discontinue certain crib mattress models currently in production (rather than produce conforming products), such a delay might provide them with more time to adjust marketing towards other product offerings, sell inventory, or consider alternative business opportunities. The Commission requests comments on the proposed 6-month effective date.
Another option available to the Commission that would reduce the burden on small firms is not to adopt a mandatory standard for crib mattresses. Although this option would eliminate the cost impacts of complying with the proposed rule, failure to issue a mandatory standard for crib mattresses would not adequately address the hazard patterns for crib mattresses, especially for hazard patterns that are not adequately addressed in the voluntary standard.
CPSC staff evaluated the possible impacts of the proposed rule on small entities, as required by the RFA. Staff identified 26 manufacturers and importers of mattress products, 16 of which would be considered small businesses (9 manufacturers and 7 importers). The potential impacts include the costs of modifying mattresses to conform to the requirements, the lost revenue if some models are discontinued, and the costs associated with the third-party testing. The Commission believes it possible
The Commission's regulations address whether the agency is required to prepare an environmental assessment or an environmental impact statement. Under these regulations, certain categories of CPSC actions normally have “little or no potential for affecting the human environment,” and therefore do not require an environmental assessment or an environmental impact statement. Safety standards providing requirements for products come under this categorical exclusion. 16 CFR 1021.5(c)(1). The NPR for crib mattresses falls within the categorical exclusion.
This proposed rule for crib mattresses contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (“OMB”) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). In this document, pursuant to 44 U.S.C. 3507(a)(1)(D), we set forth:
A title for the collection of information;
a summary of the collection of information;
a brief description of the need for the information and the proposed use of the information;
a description of the likely respondents and proposed frequency of response to the collection of information;
an estimate of the burden that shall result from the collection of information; and
notice that comments may be submitted to the OMB.
Our estimate is based on the following:
The Commission proposes in the NPR modifications to section 7 of ASTM 2933-19, and a new section 8 on instructional literature, to bring the standard into alignment with other safety standards for durable infant or toddler products. For example, in addition to improved warning format and content, proposed modifications to section 7.1.1 of ASTM F2933-19 would require that the name and the place of business (city, state, and mailing address, including zip code) or telephone number of the manufacturer, distributor, or seller be marked clearly and legibly on each product and its retail package. Proposed modifications to section 7.1.2 of ASTM F2933-19 would also require a code mark or other means that identifies the date (month and year, as a minimum) of manufacture. Proposed modifications to section 7.2 of ASTM F2933-19 would require marking and labeling on the product to be permanent.
Twenty-six known entities supply crib mattresses to the U.S. market and these entities may need to make some modifications to existing product labels. We estimate that the time required to make these modifications is about 1 hour per model. Based on an evaluation of supplier product lines, each entity supplies an average of 12 models of crib mattresses;
The NPR also proposes a new section 8 that would require instructions to be supplied with the crib mattress. The instructions would be required to: (a) Be easy to read and understand; (b) include information regarding assembly, maintenance, cleaning, and use, where applicable; and (c) address the same warning and safety-related statements that must appear on the product, with similar formatting requirements, but without the need to be in color. Under the OMB's regulations (5 CFR 1320.3(b)(2)), the time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the “normal course of their activities” are excluded from a burden estimate, where an agency demonstrates that the disclosure activities required to comply are “usual and customary.” Based on staff's review of product information online, approximately 80 percent of firms that supply cribs to the crib mattress market already provide instructional literature to consumers for
Based on this analysis, the proposed standard for crib mattresses would impose a burden to industry of 312 hours at a cost of $10,214.88 annually.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted the information collection requirements of this rule to the OMB for review. Interested persons are requested to submit comments regarding information collection by November 25, 2020, to the Office of Information and Regulatory Affairs, OMB (see the
Pursuant to 44 U.S.C. 3506(c)(2)(A), we invite comments on:
Whether the collection of information is necessary for the proper performance of the CPSC's functions, including whether the information will have practical utility;
the accuracy of the CPSC's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
ways to enhance the quality, utility, and clarity of the information to be collected;
ways to reduce the burden of the collection of information on respondents, including the use of automated collection techniques, when appropriate, and other forms of information technology; and
the estimated burden hours associated with label modification, including any alternative estimates.
Section 26(a) of the CPSA, 15 U.S.C. 2075(a), states that when a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a standard or regulation that prescribes requirements for the performance, composition, contents, design, finish, construction, packaging, or labeling of such product dealing with the same risk of injury unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA refers to the rules to be issued under that section as “consumer product safety rules.” Therefore, the preemption provision of section 26(a) of the CPSA would apply to a rule issued under section 104.
This Commission proposes a rule under section 104(b) of the CPSIA to issue a consumer product safety standard for crib mattresses, to amend part 1112 to add crib mattresses to the list of children's product safety rules for which the CPSC has issued an NOR, and to amend part 1130 to identify crib mattresses as a durable infant or toddler product subject to CPSC consumer registration requirements. The Commission requests comments on the proposal to incorporate by reference ASTM F2933-19, with modifications to address mattress firmness, mattress compression, lacerations from coils and springs, dimensional requirements for non-full-size cribs, and improve warnings and instructions. The Commission also requests comments on the proposed effective date; the costs of compliance with, and testing to, the proposed Safety Standard for Crib Mattresses; and any aspect of this proposal. During the comment period, the ASTM F2933-19 Standard Consumer Safety Specification for Crib Mattresses, is available as a read-only document at:
Comments should be submitted in accordance with the instructions in the
Administrative practice and procedure, Audit, Consumer protection, Reporting and recordkeeping requirements, Third party conformity assessment body.
Administrative practice and procedure, Business and industry, Consumer protection, Reporting and recordkeeping requirements.
Consumer protection, Imports, Incorporation by reference, Infants and children, Labeling, Law enforcement, and Mattresses.
For the reasons discussed in the preamble, the Commission proposes to amend Title 16 of the Code of Federal Regulations as follows:
15 U.S.C. 2063; Pub. L. 110-314, section 3, 122 Stat. 3016, 3017 (2008).
(b) * * *
(51) 16 CFR part 1241, Safety Standard for Crib Mattresses.
15 U.S.C. 2056a, 2056(b).
(a) * * *
(19) Crib mattresses.
Sec. 104, Pub. L. 110-314, 122 Stat. 3016 (15 U.S.C. 2056a); Sec. 3, Pub. L. 112-28, 125 Stat. 273.
This part establishes a consumer product safety standard for crib mattresses. The scope of this standard for crib mattresses includes all crib mattresses within the scope of ASTM F2933,
(a) Except as provided in paragraph (b) of this section, each crib mattress must comply with all applicable provisions of ASTM F2933-19, Standard Consumer Safety Specification for Crib Mattresses (approved on June 15, 2019). The Director of the Federal
(b) Comply with ASTM F2933-19 with the following additions or exclusions:
(1) Instead of complying with section 3.1.2 of ASTM F2933-19, comply with the following:
(i) 3.1.2
(ii) [Reserved]
(2) Add the following paragraph to section 3.1 of ASTM F2933-19:
(i) 3.1.11
(ii) [Reserved]
(3) Instead of complying with section 5.7.1.1 of ASTM F2933-19, comply with the following:
(i) 5.7.1.1
(ii) [Reserved]
(4) Instead of complying with section 5.7.2.1 and 5.7.2.2 of ASTM F2933-19, comply with the following:
(i) 5.7.2.1
(ii) 5.7.2.2
(5) In section 5.9 of ASTM F2933-19, remove the term “and Non-Full Size Crib.”
(6) In section 5.9.1 of ASTM F2933-19, replace the term “For Mesh/Fabric Sided Products and Rigid Sided Non-Rectangular Products” with “For Mesh/Fabric Sided Play Yard Products.”
(7) In section 5.9.1.2 of ASTM F2933-19, remove the term “Mattresses for Rigid sided products;”.
(8) In section 5.9.1.3 of ASTM F2933-19, replace the term “replacement” with “after-market.”
(9) Add the following paragraphs to section 5 of ASTM F2933-19:
(i) 5.10 Mattress Firmness.
(ii) 5.10.1 All crib mattresses within the scope of this standard, when tested in accordance with 6.3, the feeler arm shall not contact the sleep surface of the crib mattress.
(iii) 5.11 Coil Springs.
(iv) 5.11.1 When tested in accordance with 6.4, there shall be no exposed coil springs or metal wires. The requirements in this section only pertain to crib mattresses with coil springs.
(10) Renumber section 6.2.2 of ASTM F2933-19 to 6.2.3.
(11) Add the following paragraph to section 6.2.2 of ASTM F2933-19:
(i) 6.2.2 Test Equipment-Mattress Sheet:
(ii) [Reserved]
(12) Renumber section 6.2.2.1 of ASTM F2933-19 to 6.2.3.1.
(13) Add the following paragraph to section 6.2.2.1 of ASTM F2933-19:
(i) 6.2.2.1 The mattress sheet shall be 100% cotton and fitted for the mattress to be tested.
(ii) [Reserved]
(14) Renumber section 6.2.2.2 of ASTM F2933-19 to 6.2.3.2.
(15) Add the following paragraph to section 6.2.2.2 of ASTM F2933-19:
(i) 6.2.2.2 The mattress sheet shall be washed in hot water (50 °C [122 °F] or higher) and dried a minimum of two times on the highest setting using household textile laundering units. This shall be the test mattress sheet.
(ii) [Reserved]
(16) Renumber section 6.2.2.3 of ASTM F2933-19 to 6.2.3.3.
(17) Renumber section 6.2.2.4 of ASTM F2933-19 to 6.2.3.4.
(18) Add the following paragraphs to section 6.2.3 of ASTM F2933-19:
(i) 6.2.3.5 Measure the shortest gap between the mattress and the mattress measuring box at the corner adjoining Walls C and D after the dimensions of the mattress have been recorded. The mattress shall not be moved before or during measurement. This shall be the corner gap measurement.
(ii) 6.2.3.6 Rotate the mattress 180° such that the opposing corner is adjacent to Walls C and D, then repeat 6.2.3.2 and 6.2.3.5.
(iii) 6.2.3.7 The test mattress sheet shall be placed on the mattress such that each sheet edge is wrapped fully around and under the mattress.
(iv) 6.2.3.8 The mattress with test mattress sheet shall be measured following steps 6.2.3.1 through 6.2.3.6. The mattress dimensions shall meet the requirements in 5.7.
(19) Add the following paragraphs as section 6.3 of ASTM F2933-19.
(i) 6.3 Mattress Firmness.
(ii) 6.3.1
(iii) 6.3.1.1 The fixture, as shown in Fig. 2, shall be a rigid, robust object with a round footprint of diameter 203 ±1 mm, and an overall mass of 5200 ±20 g. The lower edge of the fixture shall have a radius not larger than 1 mm. Overhanging the footprint by 40 ±2 mm shall be a flexible, flat bar of width 12 ±0.2 mm with square-cut ends. This bar may be fashioned from a shortened hacksaw blade. The bar shall rest parallel to the bottom surface of the fixture and shall be positioned at a height of 15 ±0.2 mm above the bottom surface of the fixture. The bar shall lay directly over a radial axis of the footprint (
(iv) 6.3.1.2 Included on the fixture, but not overhanging the footprint, shall be a linear level that is positioned on a plane parallel to the bar, and in a direction parallel to the bar.
(v) 6.3.1.3 Other parts of the fixture, including any handle arrangement and any clamping arrangement for the bar, shall not comprise more that 30% of the total mass of the fixture, and shall be mounted as concentric and as low as possible.
(vi) 6.3.2
(vii) 6.3.2.1 Mattresses that are supplied with a product shall be tested when positioned on that product. Mattresses sold independent of a product, shall be tested on a flat, rigid, horizontal support. After-market mattresses for play yards and non-full-size cribs shall be tested with each brand and model of product it is intended to replace.
(viii) 6.3.2.2 Where a user of a mattress could possibly position either side face up, even if this is not an
(ix) 6.3.2.3 Before testing each mattress, the following steps shall be followed:
(A) Verify there is no excess moisture in the mattress, beyond reasonable laboratory humidity levels.
(B) Allow sufficient time per the manufacturer's instructions to fully inflate, if shipped in a vacuum sealed package.
(C) Shake and or agitate the mattress in order to fully aerate and distribute all internal components evenly.
(D) Place the mattress in the manufacturer's recommended use position if there is one, in the supplied product, or on a flat, rigid, horizontal support.
(E) Let the mattress rest for at least 5 minutes.
(F) Mark a longitudinal centerline on the mattress sleep surface, and divide this line in half. This point will be the first test location. Then further divide the two lines on either side of the first test location into halves. These will be the second and third test locations.
(x) 6.3.2.4.
(A) Position the test fixture on each of the test locations, with the footprint of the fixture centered on the location, with the bar extending over the centerline and always pointing at the same end of the mattress sleep surface.
(B) At each test location in turn, rotate the bar to point in the required direction, and gently set the fixture down on the mattress sleep surface, ensuring that the footprint of the fixture does not extend beyond the edge of the mattress. The fixture shall be placed as horizontal as possible, using the level to verify. If the bar makes contact with the top of the mattress sleep surface, even slightly, the mattress is considered to have failed the test.
(C) Repeat Steps (1) and (2) and at the remaining locations identified in 6.3.2.1(6).
(D) Repeat Steps (1) and (2) at a location away from the centerline most likely to fail (
(E) In the event that the fixture is not resting in a nearly horizontal orientation, repeat the test procedure at that location by beginning again from paragraph (b)(19)(x)(A). However, if the test produces a fail even with the device tilted back away from the bar so as to raise it, then a fail can be recorded.
(20) Add the following paragraphs as section 6.4 of ASTM F2933-19:
(i) 6.4 Coil Spring Test.
(ii) 6.4.1 General—This test consists of dropping a specified weight repeatedly onto the mattress. The test assists in evaluating the structural integrity of a mattress with coil springs.
(iii) 6.4.2 Test Fixture:
(iv) 6.4.2.1 A guided free-fall impacting system machine (which keeps the upper surface of the impact mass parallel to the horizontal surface on which the crib is secured) (See Fig. 3).
(v) 6.4.2.2 A 30-lb (13.6-kg) impact mass (see Fig. 4 and Fig. 5).
(vi) 6.4.2.3 A 6-in. (150-mm) long gauge.
(vii) 6.4.2.4 An enclosed frame measuring 29 inches by 53 inches (737 mm by 1346 mm) for the purpose of restricting mattress movement. When testing full-size mattresses, a full-size crib meeting the requirements of ASTM F1169-19 would suffice.
(viii) 6.4.2.5 A
(ix) 6.4.3 Test Method:
(x) 6.4.3.1 Place the mattress on the wooden support and inside the enclosed frame.
(xi) 6.4.3.2 Position geometric center of the impact mass above the geometric center of the test mattress.
(xii) 6.4.3.3 Adjust the distance between the top surface of the mattress and bottom surface of the impact mass to 6 in. (150 mm) (using the 6-in. (150-mm) long gauge, per 6.4.2.3) when the impact mass is in its highest position. Lock the impactor mechanism at this height and do not adjust the height during impacting to compensate for any change in distance as a result of the mattress compressing or the mattress support deforming or moving during impacting.
(xiii) 6.4.3.4 Allow the 30-lb (13.6-kg) impact mass to fall freely 250 times at the rate of one impact every 4 s. Load retraction shall not begin until at least 2 s after the start of the drop.
(xiv) 6.4.3.5 Repeat the step described in 6.4.3.4 at the other test locations shown in Fig. 6.
(21) Add the following Figures to section 6 of ASTM F2933-19:
(22) Instead of complying with sections 7.1 and 7.2 of ASTM F2933-19, comply with the following:
(i) 7.1 Each mattress and its retail package shall be marked or labeled clearly and legibly to indicate the following:
(ii) 7.1.1 The name, place of business (city, state, and mailing address, including zip code), and telephone number of the manufacturer, distributor, or seller.
(iii) 7.1.2 A code mark or other means that identifies the date (month and year at a minimum) of manufacture.
(iv) 7.2 The marking and labeling on the product shall be permanent.
(23) Do not comply with sections 7.2.1, 7.2.2, 7.2.2.1, 7.2.2.2, and 7.2.2.3 of ASTM F2933-19.
(24) Instead of complying with sections 7.3, 7.3.1, 7.3.2, and 7.3.3 of ASTM F2933-19, comply with the following:
(i) 7.3 Any upholstery labeling required by law shall not be used to meet the requirements of this section.
(ii) [Reserved]
(25) Instead of complying with sections 7.4 and 7.4.1 of ASTM F2933-19, comply with the following:
(i)
(ii) 7.4.1 The warnings shall be easy to read and understand and be in the English language at a minimum.
(iii) 7.4.2 Any marking or labeling provided in addition to those required by this section shall not contradict or confuse the meaning of the required information, or be otherwise misleading to the consumer.
(iv) 7.4.3 The warnings shall be conspicuous and permanent.
(v) 7.4.4 The warnings shall conform to ANSI Z535.4—2011, American National Standard for Product Safety Signs and Labels, sections 6.1-6.4, 7.2-7.6.3, and 8.1, with the following changes.
(vi) 7.4.4.1 In sections 6.2.2, 7.3, 7.5, and 8.1.2, replace “should” with “shall.”
(vii) 7.4.4.2 In section 7.6.3, replace “should (when feasible)” with “shall.”
(viii) 7.4.4.3 Strike the word “safety” when used immediately before a color (
(ix)
(x) 7.4.5 The safety alert symbol “[Safety Alert Symbol]” and the signal word “WARNING” shall be at least 0.2 in. (5 mm) high. The remainder of the text shall be in characters whose upper case shall be at least 0.1 in. (2.5 mm), except where otherwise specified.
(xi)
(xii) 7.4.6
(xiii) 7.4.6.1 The text shall be left aligned, ragged right for all but one-line text messages, which can be left aligned or centered.
(xiv)
(xv) 7.4.6.2 The text in each column needs to be arranged in list or outline format, with precautionary (hazard avoidance) statements preceded by bullet points. Multiple precautionary statements shall be separated by bullet points if paragraph formatting is used.
(xvi) 7.4.7 Example warnings in the format described in this section are shown in FIGS. 8, 9, and 10.
(26) Instead of complying with sections 7.5, 7.5.1, 7.5.2, 7.5.3, 7.5.3.1, and 7.5.3.2 of ASTM F2933-19, comply with the following:
(i) 7.5 Warning Statements—Each mattress shall have warning statements to address the following, at a minimum, unless otherwise specified. The blank in the mattress fit statement beginning with “If a gap is larger than,” needs to be filled with “1
(ii)
• On pillows, comforters, and extra padding
• in gaps between a wrong-size mattress, or extra padding, and side walls of product.
(iii) Renumber section 7.3.1 of ASTM F2933-19 to section 7.5.1.
(iv) In section 7.5.1, replace the reference to “7.3” with a reference to “7.5.”
(v) In section 7.5.1, replace the term “Only use” with the term “
(vi) Renumber section 7.3.2 of ASTM F2933-19 to section 7.5.2.
(vii) In section 7.5.2, replace the term “For non-full-size crib mattresses” with the term “For non-full-size crib mattresses and after-market mattresses for play yards and non-full-size cribs.”
(viii) In section 7.5.2, replace the reference to “7.3” with a reference to “7.5.”
(ix) In section 7.5.2, replace the term “Only use” with the term “
(x) Renumber section 7.3.3 of ASTM F2933-19 to section 7.5.3.
(xi) In section 7.5.3, replace the term “Additional manufacturers warnings may be included between the warnings specified in 7.3 and 7.4 if desired” with “Manufacturers are permitted to include additional warnings between the warnings specified in 7.5 and 7.6 if desired.”
(27) Instead of complying with sections 7.6, 7.6.1, 7.6.1.1, 7.6.1.2, or 7.7 of ASTM F 2933-19, comply with the following:
(i) 7.6 The following warning statement shall be included exactly as stated in this paragraph (b)(27)(i) and shall be located at the bottom of the warnings on each mattress:
(ii) 7.7
(iii) 7.7.1 All warnings added by the original manufacturer which are in addition to those required by this standard.
(iv) 7.7.2 Assembly/attachment instructions that were provided on the original mattress.
(v) 7.7.3 The specific brand(s) and model(s) number(s) of the product(s) in which it is intended to be used.
(vi) 7.7.4
This mattress measures ___ long, ___ wide, and ___ thick when measured from seam to seam.
(28) Add the following paragraphs as section 7.8 of ASTM F2933-19:
(i) 7.8 Package Warnings.
(ii) 7.8.1 The warnings and statements are not required on the retail
(iii) 7.8.2 Warning Statements—Each mattress' retail package shall have statements to address the following, at a minimum.
(iv) 7.8.2.1 All warnings included in section 7.5, as applicable.
(v) 7.8.2.2 All additional markings and warnings included in section 7.7, as applicable.
(29) Add the following figures to section 7 of ASTM F2933-19:
(30) Renumber section 8 of ASTM F2933-19 to section 9.
(31) Add the following paragraphs to section 8 of ASTM F2933-19:
(i) 8. Instructional Literature.
(ii) 8.1 Instructions shall be provided with the mattress and shall be easy to read and understand, and shall be in the English language, at a minimum. These instructions shall include information on assembly, maintenance, cleaning, and use, where applicable.
(iii) 8.2 The instructions shall have statements to address the following, at a minimum.
(iv) 8.2.1 All warnings included in section 7.5, as applicable.
(v) 8.2.2 All additional markings and warnings included in section 7.7, as applicable.
(vi) 8.3 The warnings in the instructions shall meet the requirements specified in 7.4.4, 7.4.5, and 7.4.6, except that sections 6.4 and 7.2-7.6.3 of ANSI Z535.4 need not be applied. However, the signal word and safety alert symbol shall contrast with the background of the signal word panel, and the cautions and warnings shall contrast with the background of the instructional literature.
(vii)
(viii) 8.4 Any instructions provided in addition to those required by this section shall not contradict or confuse the meaning of the required information, or be otherwise misleading to the consumer.
(ix)
Bureau of Consumer Financial Protection.
Final rule; official interpretation.
With certain exceptions, Regulation Z requires creditors to make a reasonable, good faith determination of a consumer's ability to repay any residential mortgage loan, and loans that meet Regulation Z's requirements for “qualified mortgages” (QMs) obtain certain protections from liability. One category of QMs consists of loans that are eligible for purchase or guarantee by either the Federal National Mortgage Association (Fannie Mae) or the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, government-sponsored enterprises, or GSEs), while operating under the conservatorship or receivership of the Federal Housing Finance Agency (FHFA). The GSEs are currently under Federal conservatorship. In 2013, the Bureau of Consumer Financial Protection (Bureau) established this category of QMs (Temporary GSE QM loans) as a temporary measure that would expire with respect to each GSE on the date that GSE exits conservatorship, or on January 10, 2021, whichever comes first. In this final rule, the Bureau amends Regulation Z to replace the January 10, 2021 sunset date of the Temporary GSE QM loan definition with a provision stating that the Temporary GSE QM loan definition will be available only for covered transactions for which the creditor receives the consumer's application before the mandatory compliance date of final amendments to the General QM loan definition in Regulation Z. This final rule does not amend the provision stating that the Temporary GSE QM loan definition expires with respect to a GSE when that GSE exits conservatorship.
This rule is effective December 28, 2020.
Ben Cady, Counsel; or David Friend or Priscilla Walton-Fein, Senior Counsels, Office of Regulations, at 202-435-7700. If you require this document in an alternative electronic format, please contact
The Ability-to-Repay/Qualified Mortgage Rule (ATR/QM Rule) requires a creditor to make a reasonable, good faith determination of a consumer's ability to repay a residential mortgage loan according to its terms. Loans that meet the ATR/QM Rule's requirements for QMs obtain certain protections from liability. The ATR/QM Rule defines several categories of QMs.
One QM category defined in the ATR/QM Rule is the General QM loan category. General QM loans must comply with the ATR/QM Rule's prohibitions on certain loan features, its points-and-fees limits, and its underwriting requirements. For General QM loans, the ratio of the consumer's total monthly debt to total monthly income (DTI ratio) must not exceed 43 percent. Creditors must calculate, consider, and verify debt and income for purposes of determining the consumer's DTI ratio using the standards contained in appendix Q of Regulation Z.
A second, temporary category of QM loans defined in the ATR/QM Rule consists of mortgages that (1) comply with the same loan-feature prohibitions and points-and-fees limits as General QM loans and (2) are eligible to be purchased or guaranteed by Fannie Mae or Freddie Mac while under the conservatorship of the FHFA. This final rule refers to these loans as Temporary GSE QM loans, and the provision that created this loan category is commonly known as the GSE Patch. Unlike for General QM loans, the ATR/QM Rule does not prescribe a DTI limit for Temporary GSE QM loans. Thus, a loan can qualify as a Temporary GSE QM loan even if the consumer's DTI ratio exceeds 43 percent, as long as the loan is eligible to be purchased or guaranteed by either of the GSEs. In addition, for Temporary GSE QM loans, the ATR/QM Rule does not require creditors to use appendix Q to determine the consumer's income, debt, or DTI ratio.
In 2013, the Bureau provided in the ATR/QM Rule that the Temporary GSE QM loan definition would expire with respect to each GSE when that GSE exits conservatorship or on January 10, 2021, whichever comes first. The GSEs are currently in conservatorship. Despite the Bureau's expectations when the ATR/QM Rule was published in 2013, Temporary GSE QM loan originations continue to represent a large and persistent share of the residential mortgage loan market. A significant number of Temporary GSE QM loans would be affected by the expiration of the Temporary GSE QM loan definition, including loans for which the consumer's DTI ratio is above 43 percent or the creditor's method of documenting and verifying income or debt is incompatible with appendix Q. Based on 2018 data, the Bureau estimates that, as a result of the General QM loan definition's 43 percent DTI limit, approximately 957,000 loans—16 percent of all closed-end first-lien residential mortgage originations in 2018—would be affected by the expiration of the Temporary GSE QM loan definition. These loans are currently originated as QM loans due to the Temporary GSE QM loan definition but would not be originated under the current General QM loan definition, and might not be originated at all, if the Temporary GSE QM loan definition were to expire.
On June 22, 2020, the Bureau issued two proposed rules concerning the ATR/QM Rule. In one of the proposals—referred to in this final rule as the Extension Proposal—the Bureau proposed to extend the Temporary GSE QM loan definition until the effective date of a final rule issued by the Bureau amending the General QM loan definition.
On August 18, 2020, the Bureau issued a third proposal concerning the ATR/QM Rule. In that proposal—referred to in this final rule as the Seasoned QM Proposal—the Bureau
In this final rule, the Bureau amends Regulation Z to replace the January 10, 2021 sunset date of the Temporary GSE QM loan definition with a provision stating that the Temporary GSE QM loan definition will be available only for covered transactions for which the creditor receives the consumer's application before the mandatory compliance date of final amendments to the General QM loan definition in Regulation Z. This final rule does not amend the provision stating that the Temporary GSE QM loan definition expires with respect to a GSE when that GSE exits conservatorship (the conservatorship clause). This final rule does not affect the QM definitions that apply to Federal Housing Administration (FHA), U.S. Department of Veterans Affairs (VA), U.S. Department of Agriculture (USDA), or Rural Housing Service (RHS) loans. The Bureau concludes that this extension of the Temporary GSE QM loan definition's sunset date will ensure that responsible, affordable mortgage credit remains available to consumers who may be affected if the Temporary GSE QM loan definition expires before the amendments to the General QM loan definition take effect.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)
TILA identifies the factors a creditor must consider in making a reasonable and good faith assessment of a consumer's ability to repay. These factors are the consumer's credit history, current and expected income, current obligations, debt-to-income ratio or residual income after paying non-mortgage debt and mortgage-related obligations, employment status, and other financial resources other than equity in the dwelling or real property that secures the repayment of the loan.
TILA addresses this uncertainty by defining a category of loans—called QMs—for which a creditor “may presume that the loan has met” the ATR requirements.
• The loan does not have negative amortization, interest-only payments, or balloon payments;
• The loan term does not exceed 30 years;
• The total points and fees generally do not exceed 3 percent of the loan amount;
• The income and assets relied upon for repayment are verified and documented;
• The underwriting uses a monthly payment based on the maximum rate during the first five years, uses a payment schedule that fully amortizes the loan over the loan term, and takes into account all mortgage-related obligations; and
• The loan complies with any guidelines or regulations established by the Bureau relating to the ratio of total monthly debt to monthly income or alternative measures of ability to pay regular expenses after payment of total monthly debt.
In January 2013, the Bureau issued the ATR/QM Rule, which amended Regulation Z to implement TILA's ATR requirements (January 2013 Final Rule).
One category of QM loans defined by the ATR/QM Rule consists of General QM loans. A loan is a General QM loan if:
• The loan does not have negative-amortization, interest-only, or balloon-payment features, a term that exceeds 30 years, or points and fees that exceed specified limits;
• The creditor underwrites the loan based on a fully amortizing schedule using the maximum rate permitted during the first five years;
• The creditor considers and verifies the consumer's income and debt obligations in accordance with appendix Q;
• The consumer's DTI ratio is no more than 43 percent, determined in accordance with appendix Q.
Appendix Q contains standards for calculating and verifying debt and income for purposes of determining whether a mortgage satisfies the 43 percent DTI limit for General QM loans. The standards in appendix Q were adapted from guidelines maintained by FHA when the January 2013 Final Rule was issued.
A second, temporary category of QM loans defined by the ATR/QM Rule, Temporary GSE QM loans, consists of mortgages that (1) comply with the ATR/QM Rule's prohibitions on certain loan features and its limitations on points and fees
Section 1022(d) of the Dodd-Frank Act requires the Bureau to assess each of its significant rules and orders and to publish a report of each assessment within five years of the effective date of the rule or order.
The COVID-19 pandemic has had a significant effect on the U.S. economy. In the early months of the pandemic, economic activity contracted, millions of workers became unemployed, and mortgage markets were affected. In recent months, there has been a significant rebound in mortgage-origination activity, buoyed by historically low interest rates and by an increasingly large share of government and GSE-backed loans. However, origination activity outside the government and GSE-backed origination channels has declined significantly, and mortgage-credit availability for many consumers—including those who would be dependent on the non-QM market for financing—remains tight. The pandemic's impact on both the secondary market for new originations and on the servicing of existing mortgages is described below.
The early economic disruptions associated with the COVID-19 pandemic restricted the flow of credit in the U.S. economy, particularly as tensions and uncertainty rose in mid-March 2020, and investors moved rapidly towards cash and government securities.
However, non-agency MBS
The GSEs and government agencies continue to play a dominant role in the market recovery, with the GSE share of first-lien mortgage originations at 65.2 percent in the second quarter of 2020, up from 42.1 percent in the second quarter of 2019 and the FHA and VA share growing to 21.1 percent from 17.7 percent a year prior, according to an analysis by the Urban Institute. Portfolio lending declined to 12.7 percent in the second quarter of 2020, down from 38.6 percent in the second quarter of 2019, and private label securitizations declined to 1 percent from 1.6 percent a year prior.
In addition to the direct impact on origination volume and composition, the pandemic's impact on the mortgage servicing market has downstream effects on mortgage originations as many of the same entities both originate and service mortgages. Anticipating that a number of homeowners would struggle to pay their mortgages due to the pandemic and related economic impacts, Congress passed and the President signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)
Following the passage of the CARES Act, some mortgage servicers remain obligated to make some principal and interest payments to investors in GSE and Ginnie Mae securities, even if consumers are not making payments.
Because many mortgage servicers also originate the loans they service, many creditors, as well as several warehouse providers,
The Bureau has solicited and received substantial public and stakeholder input on issues related to the substance of this final rule. In addition to the Bureau's discussions with and communications from industry stakeholders, consumer advocates, other Federal agencies,
In June 2017, the Bureau published an RFI in connection with the Assessment Report (Assessment RFI).
Beginning in January 2018, the Bureau issued a general call for evidence seeking comment on its enforcement, supervision, rulemaking, market monitoring, and financial education activities.
On July 25, 2019, the Bureau issued the ANPR.
The Bureau issued the Extension Proposal and the General QM Proposal on June 22, 2020. In the Extension Proposal, the Bureau proposed to replace the January 10, 2021 sunset date of the Temporary GSE QM loan definition with a provision that extends the Temporary GSE QM loan definition until the effective date of final amendments to the General QM loan definition in Regulation Z (
In the General QM Proposal, the Bureau proposed, among other things, to remove the General QM loan definition's DTI limit and replace it with a limit based on the loan's pricing. Under the proposal, a loan would meet the General QM loan definition in § 1026.43(e)(2) only if the APR exceeds APOR for a comparable transaction by less than two percentage points as of the date the interest rate is set. The Bureau proposed higher thresholds for loans with smaller loan amounts and subordinate-lien transactions. The Bureau also proposed to retain the existing product-feature and underwriting requirements and limits on points and fees. Although the Bureau proposed to remove the 43 percent DTI limit from the General QM loan definition, the General QM Proposal would require that the creditor consider and verify the consumer's income or assets, debt obligations, alimony, child support, and monthly DTI ratio or residual income. The Bureau proposed to remove appendix Q. To mitigate the uncertainty that may result from appendix Q's removal, the General QM Proposal would clarify the requirements to consider and verify a consumer's income, assets, debt obligations, alimony, and child support. The Bureau proposed to preserve the current threshold separating safe harbor from rebuttable presumption QMs, under which a loan is a safe harbor QM if its APR exceeds APOR for a comparable transaction by less than 1.5 percentage
Although the Bureau proposed to remove the 43 percent DTI limit and adopt a price-based approach for the General QM loan definition, the Bureau also requested comment on two alternative approaches: (1) Retaining the DTI limit and increasing it to a specific threshold between 45 percent and 48 percent or (2) using a hybrid approach involving both pricing and a DTI limit, such as applying a DTI limit to loans that are above specified rate spreads. Under these alternative approaches, creditors would not be required to verify debt and income using appendix Q.
The Bureau stated in the General QM Proposal that it expected such amendments would allow most loans that currently could receive QM status under the Temporary GSE QM loan definition to receive QM status under the General QM loan definition if they are made after the Temporary GSE QM loan definition expires.
On August 18, 2020, the Bureau issued the Seasoned QM Proposal. The Bureau proposed to create a new category of QMs for first-lien, fixed-rate covered transactions that have met certain performance requirements over a 36-month seasoning period, are held in portfolio until the end of the seasoning period, comply with general restrictions on product features and points and fees, and meet certain underwriting requirements.
The Bureau is issuing this final rule pursuant to its authority under TILA and the Dodd-Frank Act. Section 1061 of the Dodd-Frank Act transferred to the Bureau the “consumer financial protection functions” previously vested in certain other Federal agencies, including the Board. The Dodd-Frank Act defines the term “consumer financial protection function” to include “all authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law, including performing appropriate functions to promulgate and review such rules, orders, and guidelines.”
Section 105(a) of TILA directs the Bureau to prescribe regulations to carry out the purposes of TILA and states that such regulations may contain such additional requirements, classifications, differentiations, or other provisions and may further provide for such adjustments and exceptions for all or any class of transactions that the Bureau judges are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.
Section 129C(b)(3)(B)(i) of TILA authorizes the Bureau to prescribe regulations that revise, add to, or subtract from the criteria that define a QM upon a finding that such regulations are necessary or proper to ensure that responsible, affordable mortgage credit remains available to consumers in a manner consistent with the purposes of TILA section 129C; or are necessary and appropriate to effectuate the purposes of TILA sections 129B and 129C, to prevent circumvention or evasion thereof, or to facilitate compliance with such sections.
Section 1022(b)(1) of the Dodd-Frank Act authorizes the Bureau to prescribe rules to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof.
This final rule replaces the January 10, 2021 sunset date of the Temporary GSE QM loan definition with a provision that extends the Temporary GSE QM loan definition until the mandatory compliance date of final amendments to the General QM loan
As explained above, the General QM Proposal would remove the General QM loan definition's 43 percent DTI limit and replace it with a price-based approach. Specifically, the General QM Proposal provides that a loan meets the General QM loan definition in § 1026.43(e)(2) only if the APR exceeds the APOR for a comparable transaction by less than two percentage points as of the date the interest rate is set.
However, the Bureau believes that some consumers who would have obtained loans under the Temporary GSE QM loan definition—and who would be able to obtain loans under the revised General QM loan definition, as separately proposed in the General QM Proposal—would not be able to obtain loans at all if the Temporary GSE QM loan definition expired before final amendments to the General QM loan definition have gone into effect. Further, for loans absorbed by FHA and the private market in the absence of the Temporary GSE QM loan definition, there is a significant risk that some consumers would have paid more for these loans. Any such pricing effects, however, would depend on the characteristics of the particular loans that would be originated as FHA loans or in the private market.
To prevent these likely effects on the availability and cost of credit if the Temporary GSE QM loan definition were to expire before final amendments to the General QM loan definition take effect, the Bureau is revising the ATR/QM Rule to provide that the Temporary GSE QM loan definition will expire on the mandatory compliance date of a final rule issued by the Bureau amending the General QM loan definition or when the GSEs exit conservatorship, whichever comes first. The Bureau concludes that this extension of the Temporary GSE QM loan definition's sunset date will ensure that responsible, affordable credit remains available to consumers who may have been affected if the Temporary GSE QM loan definition were to expire before amendments to the General QM loan definition take effect.
Consistent with the Extension Proposal, and for the reasons discussed below in the section-by-section analysis of § 1026.43(e)(4)(iii)(B), the Bureau is not amending the conservatorship clause in § 1026.43(e)(4)(ii)(A).
In the January 2013 Final Rule, the Bureau explained why it created the Temporary GSE QM loan definition. The Bureau observed that it did not believe that a 43 percent DTI ratio “represents the outer boundary of responsible lending” and acknowledged that historically, and even after the financial crisis, over 20 percent of mortgages exceeded that threshold.
At the same time, the Bureau noted that the mortgage market was especially fragile following the financial crisis and that GSE-eligible loans and federally insured or guaranteed loans made up a significant majority of the market.
The January 2013 Final Rule established a sunset date for the Temporary GSE QM loan definition of January 10, 2021 (seven years after that rule's effective date). The January 2013 Final Rule also stated that the Temporary GSE QM loan definition expires with respect to a GSE when that GSE exits conservatorship, even if that occurs before January 10, 2021.
The Bureau believed that, as the market recovered, the GSEs and the Federal agencies would be able to reduce their market presence, the percentage of Temporary GSE QM loans would decrease, and the market would shift toward General QM loans and non-QM loans above a 43 percent DTI ratio.
The mortgage market has evolved differently than the Bureau predicted when it issued the January 2013 Final Rule. Contrary to the Bureau's expectations in 2013, the market has not shifted away from Temporary GSE QM originations and the private market
The GSEs' share of the conventional, conforming purchase-mortgage market was large before the ATR/QM Rule, and the Assessment Report found a small increase in that share since the ATR/QM Rule's effective date, reaching 71 percent in 2017.
As explained in the Extension Proposal, the continued prevalence of Temporary GSE QM loan originations is contrary to the Bureau's expectation at the time it issued the January 2013 Final Rule.
As the Extension Proposal explained, the Bureau anticipates that two main types of conventional loans would be affected by the expiration of the Temporary GSE QM loan definition: High-DTI GSE loans (those with DTI ratios above 43 percent) and GSE-eligible loans without appendix Q-required documentation. Leaving the current fixed sunset date in place would affect these loans because they are currently originated as QM loans due to the Temporary GSE QM loan definition but would not be originated as General QM loans, and may not be originated at all, if the Temporary GSE QM loan definition were to expire before amendments to the General QM loan definition are in effect. This final rule refers to these loans as potentially displaced loans.
The Extension Proposal's analysis of the potential market impact of the Temporary GSE QM loan definition's expiration cited data and analysis from the Bureau's ANPR, as described below. None of the comments on the Extension Proposal challenged the data or analysis from the ANPR or the Extension Proposal related to the potential market impacts of the Temporary GSE QM loan definition's expiration.
The Bureau's analysis of the market under the baseline focuses on High-DTI GSE loans because the Bureau estimates that most potentially displaced loans are High-DTI GSE loans. The Bureau also lacks the loan-level documentation and underwriting data necessary to estimate with precision the number of potentially displaced loans that do not fall within the other General QM loan requirements and are not High-DTI GSE loans. However, the Assessment Report did not find evidence of substantial numbers of loans in the non-GSE-eligible jumbo market being displaced when appendix Q verification requirements became effective in 2014.
Focusing on High-DTI GSE loans, the Bureau expects that these loans will continue to comprise a significant proportion of mortgage originations through January 10, 2021, when the Temporary GSE QM loan definition was scheduled to expire.
The Bureau concludes that this analysis from the ANPR continues to provide an appropriate assessment of how the market for loans that would have been High-DTI GSE loans may have responded to the Temporary GSE QM loan definition's expiration prior to the effective date of amendments to the General QM definition. Therefore, the Bureau expects that many consumers who would have obtained High-DTI GSE loans would instead have obtained FHA-insured loans because FHA currently insures loans with DTI ratios up to 57 percent (with compensating factors).
It is also possible that some consumers who would have sought High-DTI GSE loans would have been able to obtain loans in the private market.
However, the Assessment Report found that a robust market for non-QM loans above the 43 percent DTI limit has not materialized as the Bureau had predicted. Therefore, there is limited capacity in the non-QM market to provide access to credit if the Temporary GSE QM loan definition were to expire before a final rule amending the General QM loan definition has taken effect.
Finally, the ANPR noted that some consumers who would have sought High-DTI GSE loans may adapt to changing options and make different choices, such as adjusting their borrowing to result in a lower DTI ratio.
The Bureau anticipates that if the Temporary GSE QM loan definition expired as currently scheduled and there are no changes to the General QM loan definition prior to expiration, some High-DTI GSE loans and loans without appendix Q-required documentation that are otherwise GSE-eligible would not be made and some would cost consumers materially more.
The Bureau is concerned about the likely effects on the availability and cost of credit if the Temporary GSE QM loan definition were to expire before final amendments to the General QM loan definition take effect. As explained in the Extension Proposal, while the Bureau can estimate the outer limit of the share of High-DTI GSE loans that could be originated by the FHA, the Bureau cannot estimate with precision the extent to which loans would be absorbed by the FHA or the characteristics of the particular loans that might be absorbed.
To prevent these likely effects on the availability and cost of credit if the Temporary GSE QM loan definition expired before final amendments to the General QM loan definition take effect, the Bureau is extending the Temporary GSE QM loan definition until the mandatory compliance date of a final rule issued by the Bureau amending the General QM loan definition, or when the GSEs exit conservatorship, whichever comes first. As discussed below in the section-by-section analysis, commenters to the Extension Proposal were supportive of the Bureau's proposal to extend the sunset of the Temporary GSE QM loan definition rather than allowing it to expire on January 10, 2021. The Bureau is issuing this extension to ensure that responsible, affordable credit remains available to consumers who may be affected if the Temporary GSE QM loan definition expires before these amendments take effect.
The Bureau stated in the January 2013 Final Rule that, for a limited period of time and while the GSEs are under conservatorship of the FHFA, it believed that GSE-eligible loans are originated with appropriate consideration of ability to repay.
Under the conservatorship clause in the current rule, the Temporary GSE QM loan definition expires with respect to a GSE when that GSE exits conservatorship, even if that occurs before January 10, 2021. Consistent with the Extension Proposal, this final rule does not amend this provision. The Bureau addresses the comments it received related to the conservatorship clause in the section-by-section analysis of § 1026.43(e)(4)(iii)(B), below.
Section 1026.43(e)(4)(iii)(B) provides that the Temporary GSE QM loan definition is available only for covered transactions consummated on or before January 10, 2021.
The Bureau received 29 comments in response to the Extension Proposal from industry, consumer advocates, and others. All commenters supported extending the Temporary GSE QM loan definition. No commenter recommended that the Temporary GSE QM loan definition expire earlier than the effective date of final amendments to the General QM loan definition. Many commenters stated that they agreed with the Bureau that extending the Temporary GSE QM loan definition would ensure that responsible, affordable credit remains available to consumers who may be affected if the Temporary GSE QM loan definition expires before these amendments take effect.
Several commenters recommended that the Bureau finalize the Extension Proposal as proposed. Several other commenters recommended modifications to the proposal, as described and organized below based on the topic of concern.
These industry commenters recommended several options to prevent such a gap. Several commenters suggested that the Bureau prevent this gap by having the Temporary GSE QM loan definition expire six months after the effective date of final amendments to the General QM loan definition, rather than on the effective date. This approach would create an overlap period in which creditors could originate QMs under either the Temporary GSE QM loan definition or the revised General QM loan definition. Two commenters suggested that the Bureau align the sunset date with the effective date of final amendments to the General QM loan definition based on the date the creditor received the consumer's application. Under this approach, the Temporary GSE QM loan definition would be available only for covered transactions for which the creditor receives the consumer's application before the effective date of final amendments to the General QM loan definition, and the revised General QM loan definition would apply to covered transactions for which creditors receive an application on or after this effective date. One commenter recommended that the Bureau adopt this approach but provide that the Temporary GSE QM loan definition would cease to be available six months after the effective date of final amendments to the General QM loan definition.
Two industry commenters opposed aligning the sunset date of the Temporary GSE QM loan definition with the effective date of final amendments to the General QM loan definition based on the application date. These commenters argued that this standard would be unclear because “application” is not clearly defined for purposes of the ATR/QM Rule. One of these commenters recommended that, if the Bureau adopted this approach, it clarify that “application” has the same definition as under the Bureau's TILA-RESPA
One industry commenter suggested that the Bureau could prevent this gap in coverage by aligning the sunset date with the effective date of a final rule amending the General QM loan definition based on the date of consummation. Under this approach, the Temporary GSE QM loan definition would be available for covered transactions consummated before the effective date of a final rule amending the General QM loan definition (as the Bureau proposed), and then, in that final rule, the Bureau would provide that the revised General QM loan definition would apply to covered transactions consummated on or after the effective date. One industry commenter opposed this approach, stating that it would effectively reduce the length of the implementation period for the revised General QM loan definition. One industry commenter also suggested that both the Temporary GSE QM loan definition and the revised General QM loan definition be available for loans in process on the effective date of the revised General QM loan definition.
Many of these commenters noted that creditors will need to update their business processes and information technology systems as they prepare to comply with the revised General QM loan definition. These commenters stated that an overlap would reduce the likelihood that unforeseen implementation problems arising after the effective date of the General QM amendments could disrupt creditors' ability to originate loans. One of these commenters also noted that secondary market participants will be adjusting to the revised definition. Several of these commenters stated that the COVID-19 pandemic is straining creditors' resources and personnel, making it more difficult for them to adapt to the new definition. A few of these commenters stated that an overlap period would reduce the potential that a revised General QM loan definition could disrupt the mortgage market and affect credit access due to unforeseen changes in the economy or the mortgage market due to the COVID-19 pandemic.
Another commenter stated that an overlap would protect creditors that are affected by clarifications the Bureau makes to a final rule amending the General QM loan definition after it takes effect. With respect to how long the Temporary GSE QM loan definition and the revised General QM loan definition would overlap, commenters suggested periods between four months and one year.
In addition to the comments noted above, three other commenters recommended longer extensions of the sunset date to facilitate implementation of a final rule amending the General QM loan definition. An individual commenter requested a two-year extension of the sunset date until January 10, 2023. An industry commenter recommended an extension of 18 to 24 months, at a minimum.
In addition to the general concerns about implementation noted above, two industry commenters stated that, in determining when the Temporary GSE QM loan definition should expire, the Bureau should consider the GSEs' recently mandated changes to the Uniform Residential Loan Application (URLA). The GSEs are requiring creditors to use a redesigned version of the URLA for all loan applications received on or after March 1, 2021. The GSEs have stated that beginning on March 1, 2022, they will no longer accept the previous URLA.
Two consumer advocate commenters that submitted a joint comment letter recommended that the Bureau extend the Temporary GSE QM loan definition indefinitely in this rulemaking and determine its sunset date in a final rule amending the General QM loan definition. These commenters also recommended that the Temporary GSE QM loan definition remain in effect until the latest of the following events: A date certain that is no earlier than January 2022 and preferably in 2023; six months after the end of the COVID-19 national emergency; or the effective date of a final rule amending the General QM loan definition. These commenters stated that determining the Temporary GSE QM loan definition's sunset date in a final rule amending the General QM loan definition, instead of in this rulemaking, would allow the Bureau to adjust its approach to the expiration of the Temporary GSE QM loan definition based on the comments the Bureau receives on the General QM Proposal regarding the implementation of the General QM loan definition. In the commenters' view, this would better ensure a smooth transition to any revised General QM loan definition. The commenters stated that the Bureau would tie its hands by linking the sunset date with the effective date of a final rule amending the General QM loan definition; that doing so would create greater uncertainty for creditors; and that uncertainty is destabilizing and tends to reduce access to credit. These commenters also stated that the Temporary GSE QM loan definition should remain in place until the Bureau assesses the impact of the movement for racial justice on mortgage markets as well as the impact of the COVID-19 pandemic, including the decline of the non-QM market and creditors' increasing reliance on GSE and FHA loans.
An industry commenter recommended that the Bureau not extend the Temporary GSE QM loan definition indefinitely. The commenter stated that the Temporary GSE QM loan definition provides significant advantages to the GSEs by codifying their underwriting parameters into the QM definition, which, according to the commenter, produces excessive reliance on the GSEs while stifling innovation by other market participants. The commenter also recommended that the Bureau not extend the Temporary GSE QM loan definition to a date certain. In the commenter's view, because the effective date of final amendments to the General QM loan definition is not yet known, extending the definition to a date certain could result in a sunset date that is too early (causing a gap between the Temporary GSE QM loan definition and a revised General QM loan definition) or too late (causing the Temporary GSE QM loan definition to remain in place longer than necessary, resulting in the perpetuation of the concerns relating to an indefinite extension that the commenter identified).
Several industry commenters recommended that, in a final rule amending the General QM loan definition, the Bureau adopt a longer implementation period—
This final rule amends § 1026.43(e)(4)(iii)(B) to provide that, unless otherwise expired under § 1026.43(e)(4)(iii)(A),
This final rule also makes conforming changes to comment 43(e)(4)-3. As revised, comment 43(e)(4)-3 explains that the Temporary GSE QM loan definition applies only to loans for which the creditor receives the consumer's application before the mandatory compliance date of a final rule issued by the Bureau amending § 1026.43(e)(2), regardless of whether Fannie Mae or Freddie Mac (or any limited-life regulatory entity succeeding the charter of either) continues to operate under the conservatorship or receivership of the FHFA. The comment also explains that, accordingly, the Temporary GSE QM loan definition is available only for covered transactions: (i) That are consummated on or before the date Fannie Mae or Freddie Mac (or any limited-life regulatory entity succeeding the charter of either), respectively, cease to operate under the conservatorship or receivership of the FHFA and (ii) that are transactions for
The Bureau has made two substantive modifications to the proposal. The first is that this final rule links the expiration of the Temporary GSE QM loan definition to the “mandatory compliance date” of a final rule amending the General QM loan definition instead of to the “effective date” of such a final rule. Specifically, under this final rule, the Temporary GSE QM loan definition will be available only for covered transactions for which the creditor receives the consumer's application before the “mandatory compliance date” of a final rule issued by the Bureau amending the General QM loan definition, rather than covered transactions consummated on or before the “effective date” of such a final rule, as the Bureau proposed.
The Bureau is not adopting an “overlap period” in this final rule by keeping the Temporary GSE QM loan definition in effect
However, while the Bureau is not adopting an “overlap period” in this final rule by keeping the Temporary GSE QM loan definition in effect
The Bureau concludes that, to preserve the possibility of adopting an optional early compliance period in a final rule amending the General QM loan definition, it is appropriate for the Temporary GSE QM loan definition to expire on the mandatory compliance date of a final rule amending the General QM loan definition (
In this final rule, the Bureau addresses this concern by providing that the Temporary GSE QM loan definition will be available only for covered transactions “for which the creditor receives the consumer's application before” the mandatory compliance date of final amendments to the General QM loan definition (rather than covered transactions “consummated on or before” the effective date of final amendments to the General QM loan definition, as the Bureau proposed). This approach harmonizes with the proposed effective date in the General QM Proposal, under which the revised General QM loan definition would apply to covered transactions for which the creditor receives the consumer's application on or after the effective date of a final rule amending the General QM loan definition. The Bureau concludes that aligning the sunset date with the proposed effective date of final amendments to the General QM loan definition based on the date the creditor received the consumer's application would address the Bureau's access-to-credit concern by preventing a gap between the two definitions.
For the reasons described above, the Bureau is not addressing the gap by extending the Temporary GSE QM loan definition beyond the date creditors are required to transition from the current General QM loan definition to the revised General QM loan definition, as some commenters suggested. The Bureau is also not addressing this gap by aligning the sunset date with the General QM Proposal based on the date of consummation of mortgages. The Bureau is concerned about this approach because, as this effective date draws closer, this approach would create uncertainty for creditors about which QM definition (
To address concerns raised by commenters that the meaning of “application” may be unclear if the Bureau aligned the sunset date with the effective date of final amendments to the General QM loan definition based on the date the creditor received the consumer's application, this final rule adds new comment 43(e)(4)-4. This new comment clarifies the meaning of application for purposes of § 1026.43(e)(4)(iii)(B).
Regulation Z contains two definitions of “application.” Section 1026.2(a)(3)(i) defines “application” as the submission of a consumer's financial information for the purposes of obtaining an extension of credit. This definition applies to all transactions covered by Regulation Z. Section 1026.2(a)(3)(ii) also contains a more specific definition of “application.” Under this definition, for transactions subject to § 1026.19(e), (f), or (g)—
To address this potential ambiguity, new comment 43(e)(4)-4 clarifies that, for transactions that are not subject to TRID, creditors can determine the date the creditor received the consumer's application for purposes of § 1026.43(e)(4)(iii)(B) in accordance with either § 1026.2(a)(3)(i) or (ii). The Bureau concludes that this clarification is appropriate because it will facilitate compliance with § 1026.43(e)(4)(iii)(B).
The Bureau disagrees with the industry commenter's assertion that it would be problematic to align the sunset date with the proposed effective date in the General QM Proposal based on the date the creditor received the consumer's application. As noted, that commenter asserted that because creditors do not determine QM status at the time of application, defining a loan as a Temporary GSE QM at the time of application may create problems if the loan is later changed and, as a result, is no longer eligible for sale at the time of consummation. However, under the Bureau's approach, loans would not be defined as QMs at the time of application. Rather, the application date would determine whether the loan is eligible for the Temporary GSE QM loan definition or whether it is eligible for the revised General QM loan definition.
However, as noted above, the Bureau plans, in a final rule amending the General QM loan definition, to establish an implementation period—
In the Bureau's view, commenters have not established why an overlap period would be necessary to facilitate a smooth and orderly transition to a revised General QM loan definition when the Bureau establishes a sufficient implementation period for the final rule amending that definition. Commenters expressed general concerns that unforeseen compliance issues may arise after the implementation period ends, but the same is true in adapting to any new rule of this magnitude and, as stated above, the Bureau intends to adopt an implementation period that gives creditors and the secondary market enough time to prepare to comply with the revised definition.
The Bureau also declines to extend the Temporary GSE QM loan definition indefinitely in this rulemaking and determine its sunset date in a final rule amending the General QM loan definition, as the two consumer advocate commenters suggest.
The Bureau also declines to extend the sunset date in § 1026.43(e)(4)(iii)(B) to a date certain, as some commenters suggested. The Bureau is not extending the sunset date to a date certain because the chosen date could result in too long or too short an extension. The Bureau is concerned that too short an extension may not provide the Bureau with adequate time to finalize amendments to the General QM loan definition and creditors with enough time to bring their operations into compliance with any amendments adopted by the Bureau. At the same time, the Bureau is concerned that too long an extension would have the same type of negative effects as the Bureau describes above regarding making the Temporary GSE QM loan definition permanent, without any offsetting benefits because a longer extension is not needed to provide the Bureau with adequate time to consider, propose, and promulgate amendments to the General QM loan definition or industry to implement those amendments.
As with the January 2013 Final Rule, the Bureau issues this final rule pursuant to its authority under TILA sections 129C(b)(3)(B)(i) and 105(a) and Dodd-Frank Act section 1022(b)(1). For the reasons described above in part V.D, the Bureau determines that this final rule's extension of the Temporary GSE QM loan definition's sunset date is necessary and proper to ensure that responsible, affordable mortgage credit remains available to consumers in a manner consistent with the purposes of TILA section 129C, as well as necessary and appropriate to effectuate the purposes of TILA section 129C—including the purpose of assuring that consumers are offered and receive residential mortgage loans on terms that reasonably reflect their ability to repay the loans and that are understandable and not unfair, deceptive, or abusive. For these same reasons, the Bureau determines that the extension is necessary to effectuate the purposes of
As discussed above, this final rule will delay the scheduled expiration of the Temporary GSE QM loan definition from January 10, 2021 to the mandatory compliance date of a final rule issued by the Bureau amending the General QM loan definition. The Bureau's objective with this final rule is to facilitate a smooth and orderly transition away from the Temporary GSE QM loan definition and to ensure access to responsible, affordable mortgage credit upon its expiration.
In developing this final rule, the Bureau has considered the potential benefits, costs, and impacts as required by section 1022(b)(2)(A) of the Dodd-Frank Act. Specifically, section 1022(b)(2)(A) of the Dodd-Frank Act calls for the Bureau to consider the potential benefits and costs of a regulation to consumers and covered persons, including the potential reduction of access by consumers to consumer financial products or services, the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the Dodd-Frank Act, and the impact on consumers in rural areas. The Bureau consulted with appropriate Federal agencies regarding the consistency of the proposed rule with prudential, market, or systemic objectives administered by such agencies as required by section 1022(b)(2)(B) of the Dodd-Frank Act.
The discussion in these impact analyses relies on data from a range of sources. These include data collected or developed by the Bureau, including HMDA
The data the Bureau relied upon provide detailed information on the number, characteristics, and performance of mortgage loans originated in recent years. However, they do not provide information on creditor costs. As a result, analyses of any impacts of the Extension Proposal on creditor costs, particularly realized costs of complying with underwriting criteria or potential costs from legal liability are based on more qualitative information. Similarly, estimates of any changes in burden on consumers resulting from increased or decreased documentation requirements are based on qualitative information.
In the Extension Proposal, the Bureau set forth a preliminary analysis of these effects and requested comments and submissions of additional data that could inform the Bureau's analysis of the benefits, costs, and impacts of the proposal. The Bureau received several comments on its analysis. Several commenters agreed with the Bureau's estimates of the baseline effects of the Temporary GSE QM loan definition's expiration, and the potential benefits to covered persons and consumers under the Extension Proposal. Two consumer advocate commenters that submitted a joint comment letter argued for a more complete analysis of alternatives, including an indefinite delay of the scheduled expiration of the Temporary GSE QM loan definition as well as a comparison of shorter or longer delays of the expiration.
The Bureau notes that the potential benefits and costs to covered persons and consumers discussed in the Extension Proposal were estimated for the duration of the Temporary GSE QM loan definition, and thus encompass the possibilities of shorter, longer, or indefinite delays of expiration. In addition, these commenters argued that because the mortgage finance market is in flux, the Bureau should redo its analysis of benefits and costs when more data are available. In the Extension Proposal, the Bureau acknowledged the important economic disruptions and mortgage market changes due to the COVID-19 pandemic. However, the Bureau did not receive new data from commenters to inform its analysis and it does not anticipate that market changes or other circumstances will significantly alter its estimates of the benefits and costs of this final rule. These commenters also stated that the Bureau must fulfill its statutory obligation “to study ability-to-repay” before amending the ATR/QM Rule. However, the Bureau has already done so by completing the Assessment Report and through its monitoring of the performance of mortgage loans and the availability of mortgage credit.
The Bureau considers the benefits, costs, and impacts of this final rule against the baseline in which the Bureau takes no action and the Temporary GSE QM loan definition expires on January 10, 2021, or when the GSEs exit conservatorship, whichever occurs first. Under this final rule, the Temporary GSE QM loan definition will expire when the GSEs exit conservatorship or on the mandatory compliance date of a final rule issued by the Bureau amending the General QM loan definition, whichever occurs first. As a result, this final rule's direct market impacts will occur only if the GSEs remain in conservatorship beyond January 10, 2021. The impact analyses assume the GSEs will remain in conservatorship for the relevant period of time. Unless described otherwise, estimates of loan counts under the baseline and estimates of the benefits and costs of this final rule relative to the baseline are annual estimates for the duration of the Temporary GSE QM loan definition.
Under the baseline, when the Temporary GSE QM loan definition expires, conventional loans could only receive QM status under the Bureau's rules by underwriting according to the General QM requirements, Small Creditor QM requirements, Balloon Payment QM requirements, or the expanded portfolio QM amendments created by the EGRRCPA. The General QM loan definition, which would be the
As stated above in part V.C, the Bureau anticipates that, under the baseline in which the Temporary GSE QM loan definition expires, there are two main types of conventional loans that would be affected: High-DTI GSE loans (those with DTI ratios above 43 percent) and GSE-eligible loans without appendix Q-required documentation. Leaving the current fixed sunset date in place would affect these loans because they are currently originated as QM loans due to the Temporary GSE QM loan definition but would not be originated as General QM loans, and may not be originated at all, if the Temporary GSE QM loan definition were to expire before amendments to the General QM loan definition are in effect. This section 1022 analysis refers to these loans as potentially displaced loans.
The Extension Proposal's analysis of the potential market impact of the Temporary GSE QM loan definition's expiration cited data and analysis from the Bureau's ANPR, as described below. None of the comments on the Extension Proposal challenged the data or analysis from the ANPR or the Extension Proposal related to the potential market impacts of the Temporary GSE QM loan definition's expiration.
The Bureau's analysis of the market under the baseline focuses on High-DTI GSE loans because the Bureau estimates that most potentially displaced loans are High-DTI GSE loans. The Bureau also lacks the loan-level documentation and underwriting data necessary to estimate with precision the number of potentially displaced loans that do not fall within the other General QM loan requirements and are not High-DTI GSE loans. However, the Assessment Report did not find evidence of substantial numbers of loans in the non-GSE-eligible jumbo market being displaced when appendix Q documentation requirements became effective in 2014.
The primary benefit to consumers of this final rule is the continued availability of High-DTI GSE loans during the period of the extension. Given the large number of consumers who obtain such loans rather than available alternatives, including loans from the private non-GSE market and FHA loans, these GSE loans may be preferred due to their pricing, underwriting requirements, or other features.
Under the baseline, a sizeable share of potentially displaced High-DTI GSE loans may instead be originated as FHA loans. Thus, under this final rule, any price advantage of GSE loans over FHA loans will be a realized benefit to consumers. Based on the Bureau's analysis of 2018 HMDA data, FHA loans comparable to the loans received by High-DTI GSE borrowers, based on loan purpose, credit score, and combined LTV ratio, on average have $3,000 to $5,000 higher upfront total loan costs. APRs provide an alternative, annualized measure of costs over the life of a loan. FHA borrowers typically pay different APRs, which can be higher or lower than APRs for GSE loans depending on a borrower's credit score and LTV. Borrowers with credit scores at or above 720 pay an APR 30 to 60 basis points higher than borrowers of comparable GSE loans, leading to higher monthly payments over the life of the loan. However, FHA borrowers with credit scores below 680 and combined LTVs exceeding 85 percent pay an APR 20 to 40 basis points lower than borrowers of comparable GSE loans, leading to lower monthly payments over the life of the loan.
In the absence of this final rule, some of these potentially displaced consumers, particularly those with higher credit scores and the resources to make larger down payments, likely would be able to obtain credit in the non-GSE private market at a cost comparable or slightly higher than the costs for GSE loans, but below the cost of an FHA loan. As a result, the above cost comparisons between GSE and FHA loans provide an estimated upper bound on pricing benefits to consumers of this final rule. However, under the baseline, some potentially displaced consumers may not obtain loans and thus will experience benefits of credit access under this final rule.
This final rule will also benefit those consumers with incomes difficult to document using appendix Q to obtain General QM status, as the Temporary GSE QM loan definition continues to allow documentation of income and debt through GSE standards. The greater flexibility of GSE documentation standards likely reduces effort and costs for these consumers under this final rule, and in the most difficult cases in which borrowers' documentation cannot satisfy appendix Q, this final rule will allow consumers to receive Temporary GSE QM loans rather than potential FHA or non-QM alternatives. These consumers will likely benefit from cost savings under this final rule, similar to those for High-DTI consumers discussed above.
This final rule's primary benefit to covered persons, specifically mortgage creditors, is the continued profits from originating High-DTI conventional QM loans. Under the baseline, creditors would be unable to originate such loans under the Temporary GSE QM loan definition after January 10, 2021 and would instead have to originate loans with comparable DTI ratios as FHA, Small Creditor QM, or non-QM loans, or originate at lower DTI ratios as conventional General QM loans. Creditors' current preference for originating large numbers of High-DTI Temporary GSE QM loans likely reflects advantages in a combination of costs or guarantee fees (particularly relative to FHA loans), liquidity (particularly relative to Small Creditor QM), or litigation and credit risk (particularly relative to non-QM). Moreover, QM loans—including Temporary GSE QM loans—are exempt from the Dodd-Frank Act risk retention requirement whereby creditors that securitize mortgage loans are required to retain at least 5 percent of the credit risk of the security, which adds significant cost. As a result, this final rule conveys benefits to mortgage creditors originating Temporary GSE QM loans on each of these dimensions.
In addition, for those lower-DTI GSE loans which could satisfy General QM requirements, creditors may realize cost savings from continuing to underwrite loans using only the more flexible GSE documentation standards as compared to the appendix Q underwriting standards required for General QM loans. For GSE consumers unable to provide documentation compatible with appendix Q, this final rule allows such loans to continue receiving QM status, providing comparable benefits to creditors as described for High-DTI GSE loans above.
Finally, those creditors whose business models rely most heavily on originating High-DTI GSE loans will likely see a competitive benefit from the continued ability to originate such loans as Temporary GSE QM loans. This is effectively a transfer in market share to these creditors from those who primarily originate FHA or private non-GSE loans, who likely would have gained market share after the expiration of the Temporary GSE QM loan definition.
The extension of the Temporary GSE QM loan definition could delay the development of the non-QM market, particularly new mortgage products which may have become available if the Temporary GSE QM loan definition had been allowed to expire. To the extent that some consumers would prefer some of these products to GSE loans due to pricing, documentation flexibility, or other advantages, the delay of their development will be a cost to consumers of this final rule.
In addition, consumers who would have obtained non-QM loans under the baseline but instead obtain QM loans under this final rule forgo the benefit of retaining the ATR causes of action and defenses against foreclosure.
This final rule's most sizable costs to covered persons are effectively transfers between lenders for the duration of the extension, reflecting reduced loan origination volume for lenders who primarily originate FHA or private non-GSE loans and increased origination volume for lenders who primarily originate GSE loans. Business models vary substantially within market segments, with portfolio lenders and lenders originating non-QM loans most likely to experience a delay in market share gains that would have been possible if the Temporary GSE QM loan definition had been allowed to expire, while GSE-focused bank and non-bank lenders are likely to maintain market share that might be lost sooner in the absence of this final rule.
In delaying the Temporary GSE QM loan definition's expiration, this final rule will delay any effects of the expiration on the development of the secondary market for private (non-GSE) mortgage loan securities. When the Temporary GSE QM loan definition expires, those loans that do not fit within the General QM loan definition represent a potential new market for private securitizations. Thus, this final rule will reduce the scope of the potential non-QM market for the duration of the extension, likely lowering profits and revenues for participants in the private secondary market. This will effectively be a transfer from these private secondary market participants to participants in the agency secondary market.
This final rule's expected impact on depository institutions and credit unions that are also creditors making covered loans (depository creditors) with $10 billion or less in total assets is similar to the expected impact on larger creditors and on non-depository creditors. As discussed in part VII.B.4 (Costs to Covered Persons), depository creditors originating portfolio loans may experience a delay in potential market share gains that would occur in the absence of this final rule. In addition, those smaller creditors originating portfolio loans can originate High-DTI Small Creditor QM loans under the rule, and thus may rely less on the Temporary GSE QM loan definition for originating High-DTI loans. If the expiration of the Temporary GSE QM loan definition would confer a competitive advantage to these small creditors in their origination of High-DTI loans, this final rule will delay this outcome.
Conversely, those small creditors that primarily rely on the GSEs as a secondary market outlet because they do not have the capacity to hold numerous loans in portfolio or the infrastructure or scale to securitize loans may continue to benefit from the ability to make High-DTI GSE loans as Temporary GSE QM loans. In the absence of this final rule, these creditors would be limited to originating GSE loans as QMs only with DTI at or below 43 percent under the General QM loan definition. These creditors may also originate FHA, VA, or USDA loans or non-QM loans for private securitizations, likely at a higher cost relative to Temporary GSE QM loans.
This final rule's expected impact on rural areas is similar to the expected impact on non-rural areas. Based on 2018 HMDA data, the Bureau estimates that High-DTI conventional purchase mortgages are comparably likely to be reported as initially sold to the GSEs in rural areas (52.5 percent) as in non-rural areas (52.0 percent).
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small not-for-profit organizations.
The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule would not have a significant economic impact on a substantial number of small entities.
In the Extension Proposal, the Bureau certified that an IRFA was not required because the proposal, if adopted, would not have a significant economic impact on a substantial number of small entities. The Bureau did not receive comments on its analysis of the impact of the Extension Proposal on small entities. The Bureau does not expect this final rule to impose costs on small entities relative to the baseline. Under
Accordingly, the Director certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Thus, a FRFA is not required for this final rule.
Under the Paperwork Reduction Act of 1995 (PRA),
The Bureau has determined that this final rule does not contain any new or substantively revised information collection requirements other than those previously approved by OMB under that OMB control number 3170-0015. This final rule will amend 12 CFR part 1026 (Regulation Z), which implements TILA. OMB control number 3170-0015 is the Bureau's OMB control number for Regulation Z.
Pursuant to the Congressional Review Act,
The Director of the Bureau, having reviewed and approved this document, is delegating the authority to electronically sign this document to Laura Galban, a Bureau Federal Register Liaison, for purposes of publication in the
Advertising, Banking, Banks, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth-in-lending.
For the reasons set forth above, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:
12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601
(e) * * *
(4) * * *
(iii) * * *
(B) Unless otherwise expired under paragraph (e)(4)(iii)(A) of this section, the special rules in this paragraph (e)(4) are available only for covered transactions for which the creditor receives the consumer's application before the mandatory compliance date of a final rule issued by the Bureau amending paragraph (e)(2) of this section. The Bureau will also amend this paragraph prior to that mandatory compliance date to reflect the new status.
1.
2.
3.
i. That are consummated on or before the date Fannie Mae or Freddie Mac (or any limited-life regulatory entity succeeding the charter of either), respectively, cease to operate under the conservatorship or receivership of the Federal Housing Finance Agency pursuant to section 1367 of the Federal Housing Enterprises Financial Safety
ii. That are transactions for which the creditor receives the consumer's application before the mandatory compliance date of a final rule issued by the Bureau amending § 1026.43(e)(2), as provided by § 1026.43(e)(4)(iii). The Bureau will also amend this commentary prior to that mandatory compliance date to reflect the new status.
4.
5.
Accordingly, a covered transaction is eligible for purchase or guarantee by Fannie Mae or Freddie Mac, for example, if:
i. The loan conforms to the relevant standards set forth in the Fannie Mae Single-Family Selling Guide or the Freddie Mac Single-Family Seller/Servicer Guide in effect at the time, or to standards set forth in a written agreement between the creditor or a sponsor or aggregator of the creditor and Fannie Mae or Freddie Mac in effect at that time that permits variation from the standards of those guides;
ii. The loan has been granted an individual waiver by a GSE, which will allow purchase or guarantee in spite of variations from the applicable standards; or
iii. The creditor inputs accurate information into the Fannie Mae or Freddie Mac AUS or another AUS pursuant to a written agreement between the creditor and Fannie Mae or Freddie Mac that permits variation from the GSE AUS; the loan receives one of the recommendations specified below in paragraphs A or B from the corresponding GSE AUS or an equivalent recommendation pursuant to another AUS as authorized in the written agreement; and the creditor satisfies any requirements and conditions specified by the relevant AUS that are not wholly unrelated to ability to repay, the non-satisfaction of which would invalidate that recommendation:
A. An “Approve/Eligible” recommendation from Desktop Underwriter (DU); or
B. A risk class of “Accept” and purchase eligibility of “Freddie Mac Eligible” from Loan Prospector (LP).
6.
i. Assume eligibility to purchase a loan was based in part on the consumer's employment income of $50,000 per year. The creditor uses the income figure in obtaining an approve/eligible recommendation from DU. A quality control review, however, later determines that the documentation provided and verified by the creditor to comply with Fannie Mae requirements did not support the reported income of $50,000 per year. As a result, Fannie Mae demands that the creditor repurchase the loan. Assume that the quality control review is accurate, and that DU would not have issued an approve/eligible recommendation if it had been provided the accurate income figure. The DU determination at the time of consummation was invalid because it was based on inaccurate information provided by the creditor; therefore, the loan was never a qualified mortgage under § 1026.43(e)(4).
ii. Assume that a creditor delivered a loan, which the creditor determined was a qualified mortgage at the time of consummation under § 1026.43(e)(4), to Fannie Mae for inclusion in a particular To-Be-Announced Mortgage-Backed Security (MBS) pool of loans. The data submitted by the creditor at the time of loan delivery indicated that the various loan terms met the product type, weighted-average coupon, weighted-average maturity, and other MBS pooling criteria, and MBS issuance disclosures to investors reflected this loan data. However, after delivery and MBS issuance, a quality control review determines that the loan violates the pooling criteria. The loan still meets eligibility requirements for Fannie Mae products and loan terms. Fannie Mae, however, requires the creditor to repurchase the loan due to the violation of MBS pooling requirements. Assume that the quality control review determination is accurate. Because the loan still meets Fannie Mae's eligibility requirements, it remains a qualified mortgage based on these facts and circumstances.