Agricultural Marketing Service
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Defense Acquisition Regulations System
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Transportation Security Administration
Fish and Wildlife Service
National Park Service
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Foreign Assets Control Office
Internal Revenue Service
United States Mint
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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Agricultural Marketing Service, USDA.
Direct final rule.
The Agricultural Marketing Service (AMS) is amending the Cotton Board Rules and Regulations, decreasing the value assigned to imported cotton for the purposes of calculating supplemental assessments collected for use by the Cotton Research and Promotion Program. This amendment is required each year to ensure that assessments collected on imported cotton and the cotton content of imported products will be the same as those paid on domestically produced cotton. In addition, AMS is updating the Harmonized Tariff Schedule (HTS) statistical reporting numbers that were amended since the last assessment adjustment in 2020.
This direct rule is effective October 25, 2021, without further action or notice, unless significant adverse comment is received by September 27, 2021. If significant adverse comment is received, AMS will publish a timely withdrawal of the amendment in the
Written comments may be submitted to the addresses specified below. All comments will be made available to the public. Please do not include personally identifiable information (such as name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments may be posted on the internet and can be retrieved by most internet search engines. Comments may be submitted anonymously.
Comments, identified by AMS-CN-21-0057, may be submitted electronically through the
Shethir M. Riva, Director, Research and Promotion, Cotton and Tobacco Program, AMS, USDA, 100 Riverside Parkway, Suite 101, Fredericksburg, Virginia 22406, telephone (540) 361-2726, facsimile (540) 361-1199, or email at
Amendments to the Cotton Research and Promotion Act (7 U.S.C. 2101-2118) (Act) were enacted by Congress under Subtitle G of Title XIX of the Food, Agriculture, Conservation, and Trade Act of 1990 (Pub. L. 101-624, 104 Stat. 3909, November 28, 1990). These amendments contained two provisions that authorized changes in funding procedures for the Cotton Research and Promotion Program. These provisions provided for: (1) The assessment of imported cotton and cotton products; and (2) termination of refunds to cotton producers. (Prior to the 1990 amendments to the Act, producers could request assessment refunds.)
As amended, the Cotton Research and Promotion Order (7 CFR part 1205) (Order) was approved by producers and importers voting in a referendum held July 17-26, 1991, and the amended Order was published in the
This direct final rule amends the value assigned to imported cotton in the Cotton Board Rules and Regulations (7 CFR 1205.510(b)(2)) that is used to determine the Cotton Research and Promotion assessment on imported cotton and cotton products. The total value of assessment levied on cotton imports is the sum of two parts. The first part of the assessment is based on the weight of cotton imported—levied at a rate of $1 per bale of cotton, which is equivalent to 500 pounds, or $1 per 226.8 kilograms of cotton. The second part of the import assessment (referred to as the supplemental assessment) is based on the value of imported cotton lint or the cotton contained in imported cotton products—levied at a rate of five-tenths of one percent of the value of domestically produced cotton.
Section 1205.510(b)(2) of the Cotton Research and Promotion Rules and Regulations provides for assigning the calendar-year weighted-average price received by U.S. farmers for Upland cotton to represent the value of imported cotton. This is so that the assessment on domestically produced cotton and the assessment on imported cotton and the cotton content of imported products is the same. The source for the average price statistic is
The current value of imported cotton as published in 2020 in the
An example of the complete assessment formula and how the figures are obtained is as follows:
One bale is equal to 500 pounds.
One kilogram equals 2.2046 pounds.
One pound equals 0.453597 kilograms.
A 500-pound bale equals 226.8 kg. (500 × 0.453597).
$1 per bale assessment equals $0.002000 per pound or 0.2000 cents per pound (1/500) or $0.004409 per kg or 0.4409 cents per kg. (1/226.8).
The 2020 calendar-year weighted-average price received by producers for Upland cotton is $0.61 per pound or $1.345 per kg. (0.61 × 2.2046).
Five tenths of one percent of the average price equals $0.006727 per kg. (1.345 × 0.005).
The total assessment per kilogram of raw cotton is obtained by adding the $1 per bale equivalent assessment of $0.004409 per kg. and the supplemental assessment $0.006727 per kg., which equals $0.011136 per kg.
The current assessment on imported cotton is $0.011562 per kilogram of imported cotton. The revised assessment in this direct final rule is $0.011136, a decrease of $0.000426 per kilogram. This reflects the decrease in the average weighted price of Upland cotton received by U.S. farmers during the period January through December 2020.
The Import Assessment Table in section 1205.510(b)(3) of the Order indicates the total assessment rate ($ per kilogram) due for each Harmonized Tariff Schedule (HTS) number that is subject to assessment. This table must be revised each year to reflect changes in supplemental assessment rates and any changes to the HTS numbers. In this direct final rule, AMS is amending the Import Assessment Table.
AMS believes that these amendments are necessary to ensure that assessments collected on imported cotton and the cotton content of imported products are the same as those paid on domestically produced cotton. Accordingly, changes reflected in this rule should be adopted and implemented as soon as possible since it is required by regulation.
As described in this
Also, this direct-final rulemaking furthers objectives of Executive Order 13563, which requires that the regulatory process “promote predictability and reduce uncertainty” and “identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends.”
AMS has used the direct rule rulemaking process since 2013 and has not received any adverse comments; however, if AMS does receives significant adverse comments during the comment period, it will publish, in a timely manner, a document in the
This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs”' (February 2, 2017).
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 12 of the Act, any person subject to an order may file with the Secretary of Agriculture (Secretary) a petition stating that the order, any provision of the plan, or any obligation imposed in connection with the order is not in accordance with law and requesting a modification of the order or to be exempted therefrom. Such person is afforded the opportunity for a hearing on the petition. After the hearing, the Secretary would rule on the petition. The Act provides that the District Court of the United States in any district in which the person is an inhabitant, or has his principal place of business, has jurisdiction to review the Secretary's ruling, provided a complaint is filed within 20 days from the date of the entry of the Secretary's ruling.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has examined the economic impact of this rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such action so that small businesses will not be unduly or disproportionately burdened. The Small Business Administration defines, in 13 CFR 121.201, small agricultural producers as those having annual receipts of no more than $1,000,000 and small “Other Farm Product Raw Material Merchant Wholesalers” (cotton merchants/importers) as having no more than 100 employees. The Cotton Board estimates approximately 40,000 importers are subject to rules and regulations issued pursuant to the Cotton Research and Promotion Order. According to the United States Census Bureau's “2016 Survey of SUSB Annual Data Tables by Establishment Industry,” most importers are considered small entities as defined by the Small Business Administration (13 CFR 121.201). This rule would only affect importers of cotton and cotton-containing products and would decrease assessments paid by importers under the Cotton Research and Promotion Order. The current assessment on imported cotton is $0.011562 per kilogram of imported cotton. The amended assessment would be $0.011136, which was calculated based on the 12-month weighted
Under the Cotton Research and Promotion Program, assessments are used by the Cotton Board to finance research and promotion programs designed to increase consumer demand for Upland cotton in the United States and international markets. In 2020, producer assessments totaled $42.3 million and importer assessments totaled $36.1 million. According to the Cotton Board, should the volume of cotton products imported into the U.S. remain at the same level in 2021, one could expect a decrease of assessments by approximately $1,329,275.
Imported organic cotton and products may be exempt from assessment if eligible under section 1205.519 of the Order.
There are no Federal rules that duplicate, overlap, or conflict with this rule.
In compliance with Office of Management and Budget (OMB) regulations (5 CFR part 1320), which implement the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), information collection requirements contained in the regulation to be amended have been previously approved by OMB and were assigned control number 0581-0093, National Research, Promotion, and Consumer Information Programs. This rule does not result in a change to the information collection and recordkeeping requirements previously approved.
A 30-day comment period is provided to comment on changes to the Cotton Board Rules and Regulations provided herein. This period is deemed appropriate because an amendment is required to adjust assessments collected on imported cotton and the cotton content of imported products to be the same as those paid on domestically produced cotton.
Advertising, Agricultural research, Cotton, Marketing agreements, Reporting and recordkeeping requirements.
For reasons set forth in the preamble, AMS amends 7 CFR part 1205 as follows:
7 U.S.C. 2101-2118; 7 U.S.C. 7401.
(b) * * *
(2) The 12-month average of monthly weighted-average prices received by U.S. farmers will be calculated annually. Such weighted average will be used as the value of imported cotton for the purpose of levying the supplemental assessment on imported cotton and will be expressed in kilograms. The value of imported cotton for the purpose of levying this supplemental assessment is $1.1136 cents per kilogram.
(3) * * *
7 U.S.C. 2101-2118.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Airbus SAS Model A350-941 and -1041 airplanes. This AD was prompted by a report of in-production findings of missing or incorrect application of the lightning strike edge glow sealant protection at specific locations in the wing tanks. This AD requires an inspection for missing or incorrect application of the lightning strike edge glow sealant protection at certain locations in the wing tanks, and corrective action, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective September 30, 2021.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 30, 2021.
For EASA material incorporated by reference (IBR) in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
You may examine the AD docket on the internet at
Nick Wilson, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3230; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0220, dated October 13, 2020 (EASA AD 2020-0220) (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Airbus SAS Model A350-941 and -1041 airplanes.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
The FAA is issuing this AD to address missing or incorrectly applied sealant, which in combination with an undetected incorrect installation of an adjacent fastener and a lightning strike in the immediate area, could result in ignition of the fuel air mixture inside the affected fuel tanks and loss of the airplane. See the MCAI for additional background information.
The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. Air Line Pilots Association, International (ALPA) stated that it supports the NPRM.
The FAA reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
EASA AD 2020-0220 specifies procedures for an inspection for missing or incorrect application of the lightning strike edge glow sealant protection at certain locations in the wing tanks (discrepancies), and corrective action. Corrective actions include applying sealant in areas where sealant was found to be missing or incorrectly applied. 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
The FAA estimates that this AD affects 16 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:
According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. 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.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective September 30, 2021.
None.
This AD applies to Airbus SAS Model A350-941 and -1041 airplanes, certificated in any category, as identified in European Union Aviation Safety Agency (EASA) AD 2020-0220, dated October 13, 2020 (EASA AD 2020-0220).
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by in-production findings of missing or incorrect application of the lightning strike edge glow sealant protection at specific locations in the wing tanks. The FAA is issuing this AD to address missing or incorrectly applied sealant, which in combination with an undetected incorrect installation of an adjacent fastener and a lightning strike in the immediate area, could result in ignition of the fuel-air mixture inside the affected fuel tanks and loss 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, EASA AD 2020-0220.
(1) Where EASA AD 2020-0220 refers to its effective date, this AD requires using the effective date of this AD.
(2) The “Remarks” section of EASA AD 2020-0220 does not apply to this AD.
(3) Where paragraph (1) of EASA AD 2020-0220 gives a compliance time of “the next scheduled maintenance tank entry, or before exceeding 6 years since Airbus date of manufacture, whichever occurs first after the effective date of this AD,” for this AD, the compliance time is the later of the times specified in paragraphs (h)(3)(i) and (ii) of this AD.
(i) The next scheduled maintenance tank entry, or before exceeding 6 years since Airbus date of manufacture, whichever occurs first after the effective date of this AD.
(ii) Within 6 months after the effective date of this AD.
(4) Where paragraph (2) of EASA AD 2020-0220 refers to “discrepancies,” for this AD, discrepancies include missing or incorrectly applied sealant.
The following provisions also apply to this AD:
(1)
(2)
(3)
For more information about this AD, contact Nick Wilson, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3230; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2020-0220, dated October 13, 2020.
(ii) [Reserved]
(3) For EASA AD 2020-0220, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. This material may be found in the AD docket on the internet at
(5) You may view this material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is superseding Airworthiness Directive (AD) 2021-11-03, which applied to certain Airbus Helicopters Model EC 155B, EC155B1, SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters. AD 2021-11-03 required inspecting the main gearbox (MGB) fixed cowling front fitting (MGB front fitting), and depending on findings, corrective action. This AD retains the requirements of AD 2021-11-03, and includes service information that was omitted for Airbus Helicopter Model EC 155B and EC155B1 helicopters, as specified in a European Aviation Safety Agency (now European Union Aviation Safety Agency) (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD becomes effective September 10, 2021.
The Director of the Federal Register approved the incorporation by reference
The FAA must receive comments on this AD by October 12, 2021.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For EASA material 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
Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
The FAA issued AD 2021-11-03, Amendment 39-21565 (86 FR 30759, June 10, 2021) (AD 2021-11-03), for certain Airbus Helicopters Model EC 155B, EC155B1, SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters. AD 2021-11-03 required inspecting and if necessary, replacing the MGB front fitting. AD 2021-11-03 also required modifying the MGB front fitting. AD 2021-11-03 was prompted by EASA AD 2019-0008, dated January 22, 2019 (EASA AD 2019-0008), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for certain Airbus Helicopters (AH), formerly Eurocopter, Eurocopter France, Aerospatiale, Model EC 155 B, EC 155 B1, SA 365 N, SA 365 N1, AS 365 N2, and AS 365 N3 helicopters. EASA advises of reports of an in-flight loss of engine and MGB cowlings. Subsequent investigations revealed that the MGB cowling attachment fittings failed because of mounting stress in the MGB front fitting and air intake bulkhead. This condition, if not addressed, could result in damage to the helicopter, loss of helicopter control, and possible injury to persons on the ground.
Accordingly, EASA AD 2019-0008 requires inspecting the MGB front fittings and if there is a discrepancy, the EASA AD requires applicable corrective action(s) before next flight. EASA AD 2019-0008 also requires modification of the MGB fixed cowling attachments. Accomplishing the modification constitutes a terminating action for the required inspection.
Since AD 2021-11-03 was issued, the FAA discovered that paragraph “(h) Exceptions to EASA AD 2019-0008” of AD 2021-11-03, inadvertently omitted service information required for Airbus Helicopters Model EC 155B and EC155B1 helicopters. This AD corrects subparagraph (h)(8) to add Airbus Helicopters Alert Service Bulletin ASB No. 53A035, Revision 0, dated March 13, 2017, and ASB No. 53A035, Revision 1, dated December 20, 2018. This AD also updates the U.S. fleet size in the Costs of Compliance section.
These products have been approved by the aviation authority of another country, and are approved for operation in the United States. Pursuant to the bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the EASA AD referenced above. The FAA is issuing this AD after evaluating all the relevant information and determining the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This AD requires EASA AD 2019-0008, dated January 22, 2019, which the Director of the Federal Register approved for incorporation by reference as of July 15, 2021 (86 FR 30759, June 10, 2021). EASA AD 2019-0008 requires inspecting the MGB front fittings within 110 flight hours after April 14, 2017 (the effective date of EASA AD 2017-0055, dated March 31, 2017). If there is a discrepancy, the EASA AD requires applicable corrective action(s) before next flight. EASA AD 2019-0008 also requires modification of the MGB fixed cowling attachments within 660 flight hours or 23 months, whichever occurs first, after the effective date described in EASA AD 2019-0008. Accomplishing the modification constitutes a terminating action for the required inspection.
This AD also requires Airbus Helicopters Alert Service Bulletin ASB No. AS365-53.00.62 and ASB No. EC155-53A038, each Revision 0 and dated December 20, 2018 (ASB AS365-53.00.62 and ASB EC155-53A038). ASB AS365-53.00.62 applies to Model AS365-series helicopters. ASB EC155-53A038 applies to Model EC155-series helicopters. The Director of the Federal Register also approved this service information for incorporation by reference as of July 15, 2021 (86 FR 30759, June 10, 2021). This service information specifies replacing the front bracket, inspecting for stress of the MGB fixed cowlings on the radiator bulkhead, and installing an additional locking system.
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 AD requires accomplishing the actions specified in EASA AD 2019-0008 and the service information already described, except for any differences identified as exceptions in the regulatory text of this AD.
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
AD 2021-11-03 omitted service information required for compliance for certain Model EC 155B and EC155B1 helicopters. This AD corrects that error by including Airbus Helicopters Alert Service Bulletin ASB No. 53A035, Revision 0, dated March 13, 2017, and ASB No. 53A035, Revision 1, dated December 20, 2018 in the regulatory text. The public was previously provided opportunity for comment on the costs of the AD and required actions.
Accordingly, notice and opportunity for prior public comment are unnecessary pursuant to 5 U.S.C. 553(b)(3)(B). In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA is incorporating EASA AD 2019-0008 by reference in this FAA final rule. This AD, therefore, requires compliance with EASA AD 2019-0008 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2019-0008 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 not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2019-0008. Service information required by EASA AD 2019-0008 for compliance is available at
The FAA invites you to send any written relevant data, views, or arguments about this AD. 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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 53 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this AD.
Inspecting the MGB front fittings takes about 2 work-hours for an estimated cost of $170 per helicopter and $9,010 for the U.S. fleet. If required, replacing an MGB front fitting takes about 2 work-hours and parts cost about $590 for an estimated total cost of $760 per fitting. Other repairs will take up to 8 work-hours (excluding drying time) and parts will cost a minimal amount for an estimated cost of up to $680 per helicopter.
Modifying the MGB fixed cowling attachments takes about 5 work-hours and parts cost about $630 for an estimated cost of $1,055 per helicopter and $55,915 for the U.S. fleet.
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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of
For the reasons discussed above, I certify this regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective September 10, 2021.
This AD replaces AD 2021-11-03, Amendment 39-21565 (86 FR 30759, June 10, 2021) (AD 2021-11-03).
This AD applies to Airbus Helicopters Model EC 155B, EC155B1, SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters, certificated in any category, as identified in European Aviation Safety Agency (now European Union Aviation Safety Agency) (EASA) AD 2019-0008, dated January 22, 2019 (EASA AD 2019-0008).
Joint Aircraft System Component (JASC) Code: 7110, Engine Cowling System.
This AD was prompted by a report of an in-flight loss of main gearbox (MGB) and engine cowlings. The FAA is issuing this AD to address a failure of the MGB fixed cowling front fitting, and subsequent MGB cowling or engine cowling detachment, which could result in damage to the helicopter, loss of helicopter control, and possible injury to persons on the ground.
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, EASA AD 2019-0008.
(1) Where EASA AD 2019-0008 refers to April 14, 2017 (the effective date of EASA AD 2017-0055, dated March 31, 2017), this AD requires using the effective date of this AD.
(2) Where EASA AD 2019-0008 refers to its effective date, this AD requires using the effective date of this AD.
(3) Where EASA AD 2019-0008 refers to flight hours (FH), this AD requires using hours time-in-service.
(4) Where EASA AD 2019-0008 requires the modification within 660 flight hours or 23 months, whichever occurs first, this AD requires the modification within 660 hours time-in-service instead.
(5) Although the service information referenced in EASA AD 2019-0008 specifies to discard certain parts, this AD requires removing those parts from service instead.
(6) Where the service information referenced in EASA AD 2019-0008 specifies to use tooling, equivalent tooling may be used.
(7) The “Remarks” section of EASA AD 2019-0008 does not apply to this AD.
(8) Where paragraph (1) of EASA AD 2019-0008 states to, “inspect the MGB fixed cowling front fittings in accordance with the instructions of paragraph 1.E.2 of the applicable inspection ASB or in accordance with the instructions of the applicable modification ASB,” this AD requires:
(i) For Model SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters: determining if Airbus Helicopters Alert Service Bulletin No. 53.00.55, Revision 0, dated March 13, 2017, or Revision 1, dated December 20, 2018, has or has not been complied with and following the instructions, “For helicopters on which ALERT SERVICE BULLETIN No. 53.00.55 has not been complied with” or “For helicopters on which ALERT SERVICE BULLETIN No. 53.00.55 has been complied with,” as applicable, in paragraph 1.E.2, of Airbus Helicopters Alert Service Bulletin No. AS365-53.00.62 Revision 0, dated December 20, 2018 (ASB AS365-53.00.62).
(ii) For Model EC 155B and EC155B1 helicopters: determining if Airbus Helicopters Alert Service Bulletin No. 53A035, Revision 0, dated March 13, 2017, or Revision 1, dated December 20, 2018, has or has not been complied with and following the instructions, “For helicopters on which ALERT SERVICE BULLETIN No. 53A035 has not been complied with” or “For helicopters on which ALERT SERVICE BULLETIN No. 53A035 has been complied with,” as applicable, in paragraph 1.E.2, of Airbus Helicopters Alert Service Bulletin No. EC155-53A038, Revision 0, dated December 20, 2018 (ASB EC155-53A038).
(9) Where paragraph (2) of EASA AD 2019-0008 states to, “accomplish the applicable corrective action(s) in accordance with paragraph 1.E.2 of the applicable inspection ASB or in accordance with the instructions of the applicable modification ASB,” this AD requires accomplishing the applicable corrective actions by following ASB AS365-53.00.62 or ASB EC155-53A038, as applicable to your model helicopter.
(10) Where paragraph 3.B.2.e.3 of the applicable modification ASB referenced in EASA AD 2019-0008 refers to paragraph 3.B.e.3, this AD requires referring to paragraph 3.B.3 of ASB AS365-53.00.62 or ASB EC155-53A038, as applicable to your model helicopter.
Special flight permits, as described in 14 CFR 21.197 and 21.199, are not allowed.
(1) The Manager, International Validation 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 International Validation Branch, send it to the attention of the person identified in paragraph (k) of this AD. Information may be emailed to:
(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.
For more information about this AD, contact Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on July 15, 2021 (86 FR 30759, June 10, 2021).
(i) European Aviation Safety Agency (EASA) AD 2019-0008, dated January 22, 2019.
(ii) Airbus Helicopters Alert Service Bulletin ASB No. AS365-53.00.62, Revision 0, dated December 20, 2018.
(iii) Airbus Helicopters Alert Service Bulletin ASB No. EC155-53A038, Revision 0, dated December 20, 2018.
(3) For EASA AD 2019-0008, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999
(4) 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. This material may be found in the AD docket on the internet at
(5) You may view this material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (“Commission”) is making an amendment to the Commission's Freedom of Information Act (“FOIA”) regulations to remove a provision stating that records that the FOIA requires to be made available for public inspection in an electronic format will be available to persons who do not have access to the internet in the Commission's Public Reference Room. The Commission's FOIA regulations will continue to provide that persons who do not have access to the internet can obtain the documents required to be made available for public inspection by telephone or email request to the Office of FOIA Services.
Ray McInerney, FOIA/PA Officer, Office of FOIA Services, (202) 551-6249; Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-5041.
The Commission is adopting an amendment to its FOIA regulations at 17 CFR 200.80(a)(2)(ii).
The Freedom of Information Act requires each agency, in accordance with published rules, to make certain records available for public inspection in an electronic format.
The Public Reference Room, which is housed within the Commission's Library, contains a computer terminal that members of the public may use to access records that the SEC is required to make publicly available under the FOIA. The Commission's visitor logs and information from the Commission Library staff indicate that no one has used the computer terminal in the Public Reference Room to access records that the FOIA requires to be made available for public inspection in an electronic format from 2018 through the date of this document.
The Commission finds, in accordance with the Administrative Procedure Act (“APA”), that these revisions relate solely to agency organization, procedures, or practice and do not constitute a substantive rule. Accordingly, the APA's provisions regarding notice of rulemaking, opportunity for public comment, and advance publication of the amendments are not applicable.
Additionally, the provisions of the Regulatory Flexibility Act, which apply only when notice and comment are required by the APA or other law, are not applicable. These amendments do not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995.
We are adopting an amendment to remove a provision that states that documents that the FOIA requires to be made available for public inspection in an electronic format will be available to persons who do not have access to the internet in the Commission's Public Reference Room. This amendment does not impose any substantive regulatory obligations on any person. We do not believe the amendment will have any substantial economic effect, including on efficiency, competition, or capital formation. All documents that the FOIA requires to be available will remain available to the public via the internet, mail, email, or telephone request. Members of the public who wish to make use of the Commission's Public Reference Room but who must now make use of one of the alternatives could potentially incur net costs if the alternatives are less accessible than using the computer available in the Public Reference Room. However, since the documents at issue are readily available through any computer connected to the internet and can also be obtained by mail and since no person has used the Commission's Public Reference Room for this purpose in at least two years, we believe any such incremental costs will be small and incurred infrequently. Because the amendment imposes no substantial new burdens on private parties, the Commission believes that the amendment will not have any impact on
The amendments contained herein have been made under the authority set forth in 5 U.S.C. 552 and 15 U.S.C. 78w(a).
Administrative practice and procedure, Freedom of information.
For the reasons stated in the preamble, the Commission amends title 17, chapter II of the Code of Federal Regulations as follows:
5 U.S.C. 552, as amended, 15 U.S.C. 77f(d), 77s, 77ggg(a), 77sss, 78m(F)(3), 78w, 80a-37, 80a-44(a), 80a-44(b), 80b-10(a), and 80b-11, unless otherwise noted.
Section 200.80 also issued under Public Law 114-185 sec. 3(a), 130 Stat. 538; 5 U.S.C. 552; 15 U.S.C. 77f(d), 77s, 77ggg(a), 78d-1, 78w(a), 80a-37(a), 80a-44(b), 80b-10(a), and 80b-11(a), unless otherwise noted.
(a) * * *
(2)(i) Records that the FOIA requires to be made available for public inspection in an electronic format (pursuant to 5 U.S.C. 552(a)(2)) are accessible through the Commission's website,
(ii) Persons who do not have access to the internet may obtain these records by contacting the Commission's Office of FOIA Services by telephone at 202-551-7900 or by email at
By the Commission.
Federal Energy Regulatory Commission.
Adopted revisions to information collection.
The Federal Energy Regulatory Commission adopts a proposal to collect additional data from certain market-based rate sellers with ultimate upstream affiliates that have been granted blanket authorization to acquire the securities of those sellers or those sellers' upstream affiliates. The adopted proposal involves certain revisions to the data dictionary and XML schema that accompany the relational database established in Order No. 860.
These revisions will become effective October 25, 2021.
Ryan Stertz (Technical Information), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First St. NE, Washington, DC 20426, (202) 502-6473,
Regine Baus (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First St. NE, Washington, DC 20426, (202) 502-8757,
1. On March 18, 2021, the Commission issued a notice requesting comments
2. On July 18, 2019, the Commission issued Order No. 860, which revised certain aspects of the substance and format of information Sellers submit to the Commission for market-based rate purposes. Among other things, the Commission adopted the approach to collect market-based rate information in a relational database.
3. In support, the Commission explained that the relational database construct provides for a more modern and flexible format for the reporting and retrieval of information. The
4. On March 18, 2021, the Commission denied a petition for declaratory order filed by NextEra Energy, Inc., American Electric Power Company, Inc., Evergy, Inc., Exelon Corporation, and Xcel Energy Services Inc. on behalf of Xcel Energy Inc. (Petitioners).
5. However, the Commission recognized in
6. In the March Notice, the Commission proposed to collect certain data in the relational database for purposes of generating accurate asset appendices when 10% or more of the securities of a Seller (or an upstream affiliate) have been acquired pursuant to a section 203(a)(2) blanket authorization. The Commission explained that this new data requirement would only be required for Sellers with upstream affiliates 10% or more of whose securities have been acquired pursuant to a section 203(a)(2) blanket authorization and concluded there would be no burden on other Sellers.
7. Specifically, the Commission proposed to update the MBR Data Dictionary and add three new data fields to the entities_to_entities table: (1) The section 203(a)(2) blanket authorization docket number; (2) the Utility_ID_Type_CD of the utility whose securities were acquired under the corresponding section 203(a)(2) blanket authorization docket number; and (3) and the Utility_ID of that utility. That is, the appropriate Sellers would be required to identify, using these new data fields, the upstream affiliate whose securities were acquired pursuant to the section 203(a)(2) blanket authorization as well as the docket number of the proceeding in which the Commission granted the section 203(a)(2) blanket authorization.
8. The Commission noted that these new data fields would be necessary to prevent the connection of unaffiliated entities when auto-generating asset appendices, consistent with its findings in
9. Comments were filed by the Transmission Access Policy Study Group (TAPS), the Global Legal Entity Identifier Foundation (GLEIF), XBRL US (XBRL), and Edison Electric Institute (EEI) and Electric Power Supply Association (EPSA), jointly.
10. TAPS, GLEIF, and XBRL each support the Commission's proposal to collect additional data from certain Sellers through the inclusion of the three proposed data fields in the relational database.
11. TAPS supports the revisions proposed in the March Notice and urges the Commission to adopt them.
12. GLEIF and XBRL support adding the proposed new data fields to the relational database and also support usage of the Legal Entity Identifier (LEI) in the Utility_ID_Type_CD attribute (proposed field 11 in the entities_to_entities table).
13. EEI and EPSA believe there is little to no value in reporting ultimate upstream affiliates that are institutional investors to the relational database and express concern that adopting the proposed changes will result in another delay in implementation. As a result, EEI and EPSA urge the Commission not to move forward with the proposed changes.
14. First, EEI and EPSA explain that use of the term “utility” in the proposed new data fields Utility_ID_Type_CD and Utility_ID to identify the entity whose securities were acquired by a Seller's ultimate upstream affiliate(s) pursuant to a section 203(a)(2) blanket authorization may confuse the industry because, in most cases, such an entity is not a public utility, as defined by the FPA, but is instead a public utility holding company.
15. Second, EEI and EPSA express concern about the workability of the Commission's proposal regarding the technical implementation and seek clarification on which attribute(s) will be used to generate a Seller's asset appendix.
16. Third, EEI and EPSA seek clarification on whether the data fields relationship_start_date and relationship_end_date now refer to the relationship between a Seller and the Reportable Entity or to the relationship between a Seller and the utility, in the event that both fields are populated. EEI and EPSA suggest that two additional fields be added so that the relational database captures the start and end date of both relationships, when applicable.
17. Finally, EEI and EPSA express concern that the Commission has not allowed adequate time for its proposed changes to be incorporated into software that Sellers may be relying on to create the XMLs for their database submissions, and request that any order in this docket include a step-by-step example to ensure that Sellers' software developers understand the correct approach to updating records.
18. We adopt the revisions to the MBR Data Dictionary, as proposed in the March Notice. In doing so, we provide additional clarification to address concerns raised by commenters. We note that all commenters agree that it is important to distinguish upstream affiliates that have control over Sellers, ultimate upstream affiliates that have received section 203(a)(2) blanket authorizations, and the upstream affiliates or Sellers whose securities were acquired pursuant to that blanket authorization. We find that the revisions, with the clarifications discussed below, strike the appropriate balance between ensuring the accuracy of auto-generated asset appendices and minimizing the burden on Sellers. Below, we respond to commenters' specific suggestions and concerns.
19. We decline to adopt the proposal that the Commission incorporate LEI more broadly by requiring the reporting of an entity's LEI broadly across the Commission's work. We appreciate XBRL's and GLEIF's emphasis on consistency and transparency throughout the Commission's information collection efforts. However, we find that such a proposal is beyond the scope of this proceeding, which more narrowly addresses the accurate identification and reporting of ultimate upstream affiliates in the relational database.
20. As to the argument that there is little to no value in reporting ultimate upstream affiliates where those entities have acquired the securities of the reporting Seller, or its upstream affiliate, pursuant to a section 203(a)(2) blanket authorization order, we note that the Commission has repeatedly emphasized the importance of both identifying and tracking these ultimate upstream affiliates in the relational database.
21. Furthermore, this order does not make any new determinations regarding affiliation; rather, it implements the technical components necessary to ensure the relational database functions as contemplated in
22. In addition, we decline to adopt a number of the suggestions proposed by EEI and EPSA, as well as their proposed edits to MBR Data Dictionary. EEI and EPSA argue that a single field, Asset_Appendix_Reportable_Entity, should link affiliated Sellers for purposes of generating the asset appendix to simplify submittals in the relational database. However, we find that EEI and EPSA misunderstand the purpose of the Reportable_Entity_ID field in this respect. The Reportable_Entity_ID field is intended for Sellers to report their ultimate upstream affiliates.
23. As to the use of the term “utility” in the data fields, we note that the Commission has defined “utility” to mean transmitting utilities, electric utility companies, or holding company systems containing such entities, as those terms have been used in section 203(a)(2) blanket authorization orders.
24. In addition, we appreciate EEI's and EPSA's concerns that the relational database is a complex system and that potential confusion may exist about how the adopted fields will be used when auto-generating asset appendices. Based on these concerns, we agree that certain clarifications to the MBR Data Dictionary will help to alleviate confusion regarding the relational database. Specifically, we have updated the descriptions of the Reportable_Entity_ID, Blanket_Auth_Docket_Number, Utility_ID_Type_CD, and Utility_ID fields to clarify how the system constructs relationships for the auto-generated asset appendices.
25. Finally, we also appreciate EEI's and EPSA's concerns that the software that Sellers rely on for their XML submissions will need to be updated to incorporate these revisions. For a step-by-step example of how to comply with these revisions, we direct Sellers to the MBR Quick Start Guide, which can be found on the Commission's website.
26. The information collection requirements contained in this order are subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995.
27. All burden estimates for the proposed information collection are discussed in this order. These provisions would affect the following information: FERC-919A, Refinements to Policies and Procedures for Market Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities (OMB Control No. 1902-0317).
28. Interested persons may obtain information on the reporting requirements by contacting Ellen Brown, Office of the Executive Director, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 (via email
29. Send written comments on FERC-919A to the Office of Management and Budget (OMB) through
30. These revisions affect Sellers that have ultimate upstream affiliates that own their voting securities pursuant to section 203(a)(2) blanket authorizations. Sellers continue to be required to report institutional investors who own 10% or more of their voting shares pursuant to section 203(a)(2) blanket authorizations as their reportable ultimate upstream affiliate in the relational database. However, these revisions also require these Sellers to identify their upstream affiliate(s) whose securities have been acquired, 10% or more, pursuant to a section 203(a)(2) blanket authorization. This requirement includes submitting,
31. There are approximately 2,647 Sellers that will submit information into the relational database. Six institutional investors currently have section 203(a)(2) blanket authorizations, which collectively own approximately 110 upstream affiliates that themselves own Sellers. In the March Notice, the Commission estimated an average of four Sellers affected for every upstream affiliate, equaling 440 total sellers. This order reaffirms the estimate of the number of Sellers impacted by the revisions herein.
32. The following table summarizes the average estimated annual burden and cost
33. 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 environment.
34. The Regulatory Flexibility Act of 1980 (RFA)
35. The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.
36. Of the 440 affected entities discussed above, we estimate that none of these will be small entities. Accordingly, we certify that this order will not have a significant economic impact on a substantial number of small entities.
37. In addition to publishing the full text of this document in the
38. 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.
39. User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
40. These revisions are effective October 25, 2021. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this order is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996.
By the Commission. Commissioner Chatterjee is not participating.
Commissioner Danly is dissenting with a separate statement attached.
1. I dissent from today's order adopting the proposal to collect additional information for the relational database.
2. Earlier this year, in a separate proceeding, Commissioner Chatterjee and I concurred in an order denying a petition for declaratory order filed by NextEra Energy, Inc. and a number of other utilities. In that order, the Commission seized upon the opportunity to reiterate public utilities' reporting obligations regarding the informational database.
3. As today's order recognizes, in
The Commission thus acknowledged that, in conditioning those blanket authorizations, institutional investors were prevented from exercising control over utilities by acquiring their securities.
4. That determination remains true. Under our current regime, there is little to no value in listing institutional investors as the ultimate upstream affiliate of market-based rate sellers in the relational database. The Commission grants blanket authorizations premised on the finding that the institutional investors can exercise no control over the utilities whose securities they have purchased and that the acquisition would not adversely affect competition.
5. Given those predicate determinations, I cannot understand why the Commission believes it important to include institutional investors in a database that is designed to enable the Commission to monitor the opportunity for market-based rate sellers to exercise market power. For the same reason, I do not understand why the Commission should require change in status filings to be made whenever an institutional investor's ownership of the seller's voting securities crosses the 10% threshold. To the extent that a particular institutional investor's ownership of voting securities ever becomes relevant to the Commission because it may have violated the conditions of its authorization, that information is easily ascertainable from the quarterly informational filings we require as a condition of granting the blanket authorizations.
6. There is a simple solution that would allow the Commission to eliminate the requirement to include institutional investors in the relational database and in change of status filings without waiving the applicability of section 35.36(a)(9)(i) of our regulations. Section 35.36(b) provides: “The provisions of this subpart apply to all Sellers authorized, or seeking authorization, to make sales for resale of electric energy, capacity or ancillary services at market-based rates
7. I appreciate that the Commission has acted to reduce the burden on sellers resulting from the requirement to include institutional investors in the relational database and in change-in-status filings. But a pointless regulatory burden is a pointless regulatory burden, no matter how small.
For these reasons, I respectfully dissent.
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing two security zones for certain waters of Rehoboth Beach to prevent waterside threats and incidents for persons under the protection of the United States Secret Service (USSS) in the vicinity of Rehoboth Beach, Delaware. These security zones will be enforced intermittently and only for the protection of persons protected by USSS when in the area and will restrict vessel traffic while the zone is being enforced. This rule prohibits vessels and people from entering the zones unless specifically exempt under the provisions of this rule or granted specific permission from the Captain of the Port (COTP) Delaware Bay or a designated representative. Any vessel requesting to transit the zones without pause or delay will typically be authorized to do so by on-scene enforcement vessels.
This rule is effective August 26, 2021.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rulemaking, call or email Petty Officer Edmund Ofalt, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division; telephone 215-271-4889, email
On occasion the USSS has requested heightened security measures for persons protected by the USSS in the vicinity of Rehoboth Beach, Delaware. In response, on June 3, 2021, the Coast guard published a notice of proposed rulemaking (NPRM) titled “Security Zones; Lewes and Rehoboth Canal and Atlantic Ocean, Rehoboth, DE” (86 FR 29727). There, we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to these visits by USSS protectees. During the comment period that ended July 19, 2021, we received no comments.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Under the Ports and Waterways Safety Act, the Coast Guard has authority to establish water or waterfront safety zones, or other measures, for limited, controlled, or conditional access and activity when necessary for the protection of any vessel, structure, waters, or shore area, 46 U.S.C. 70011(b)(3). This rule safeguards the lives of persons protected by the Secret Service, and of the general public, by enhancing the safety and security of navigable waters of the United States during USSS protectee presence in Rehoboth, Delaware. The Coast Guard will activate the security zone when requested by the USSS for the protection of persons the USSS protects under 18 U.S.C. 3056 or pursuant to Presidential memorandum. The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231), as delegated by Department of Homeland Security Delegation No.00170.1(II)(70), Revision No. 01.2, from the Secretary of DHS to the Commandant of the U.S. Coast Guard, and further redelegated by 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5 to the Captains of the Port. The Captain of the Port Delaware Bay (COTP) has determined that recurring presence of persons under the protection of the USSS, which started in January of 2021, presents a potential target for terrorist acts, sabotage, or other subversive acts, accidents, or other causes of a similar nature. This security zone is necessary to protect these persons, the public, and the surrounding waterways.
As noted above, we received no comments on our NPRM published June 3, 2021. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM, other than a correction of a minor grammatical error in paragraph (a).
This rule establishes two security zones for the protection of USSS protectees when present in the vicinity of Rehoboth Beach, Delaware. This rule is necessary to expedite the establishment and enforcement of these security zones when short notice is provided to the COTP for USSS protectees who may be present in the area.
Security Zone One is bounded on the north by a line drawn from 38°44.36′ North Latitude (N), 075°5.32′ West Longitude (W), thence easterly to 38°44.37′ N, 075°5.31′ W proceeding from shoreline to shoreline on the Lewes and Rehoboth Canal in a Southeasterly direction where it is bounded by a line drawn from 38°43.89′ N, 075°5.31′ W, thence easterly to 38°43.90′ N, 075°5.07′ W thence northerly across the entrance to the yacht basin to 38°43.93′ N, 075°5.09′ W.
Security Zone Two extends 500 yards seaward from the shoreline, into the Atlantic Ocean beginning at 38° 44.86′ N, 075° 4.83′ W, proceeding southerly along the shoreline to 38°43.97′ N, 075°4.70′ W.
These security zones may be activated individually or simultaneously with respect to the presence of USSS protectees. These zones will be enforced intermittently. Enforcement of these zones will be broadcast via Broadcast Notice to Mariners (BNM) and/or local Safety Marine Information Broadcast (SMIB) on VHF-FM marine channel 16, as well as actual notice via on-scene Coast Guard Personnel. The public can learn the status of the security zone via an information release for the public via website
No vessel or person is permitted to enter either security zone without first obtaining permission from the COTP or a designated representative. However, we anticipate that vessels requesting to transit these zones will typically be authorized to transit without pause or delay by on-scene enforcement vessels. When a vessel or person is permitted to enter the security zone after obtaining permission from the COTP or a designated representative, the vessel or person must proceed as directed by on-scene enforcement vessels. Any vessel or person permitted to transit the security zone will be required to continue through the zone without pause or delay as directed by on-scene enforcement vessels. No vessel or person will be permitted to stop or anchor in the security zone. At times, for limited duration, it is anticipated that vessels may be prohibited from entering the zone due to movement of persons protected by USSS. During those times, actual notice will be given to vessels in the area.
When these security zones are enforced, the COTP will issue a BNM and/or SMIB via VHF-FM channel 16.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. A combined regulatory analysis (RA) and Regulatory Flexibility Analysis follows.
This rule will establish the following two security zones: (1) A half-mile stretch of the Lewes and Rehoboth Canal; and (2) a one-mile section of Rehoboth Beach stretching 500 yards from the shoreline. The enforcement of these two security zones is expected to be intermittent. Vessels will normally be allowed to transit but not stop within the security zones. However, when persons protected by the USSS are moving in or out of the area, the Coast Guard may halt traffic in these two security zones. The Coast Guard expects such instances to happen relatively infrequently and for a short duration (1-3 hours).
The Coast Guard will station Coast Guard personnel at the borders of the security zones with the authority to enforce this security zone. In the few instances where USSS protectees are in transit, these Coast Guard personnel will ensure that no traffic transits through the security zones. Recreational boaters wishing to transit the area may inquire directly with the Coast Guard personnel posted at the boundaries of the security zones, rather than being required to contact the COTP.
Table 1 provides a summary of the rule's costs and qualitative benefits.
The Coast Guard does not collect data on the vessels and individuals using either the Lewes and Rehoboth Canal or the North Shores Section of Rehoboth Beach, the areas that would be impacted by this rule. To estimate the affected population, we used information directly observable from Google Maps, as well as the subject-matter expertise of Coast Guard personnel with knowledge of the area.
The two security zones—a half-mile section of the Lowes Rehoboth Canal and a one-mile section of Rehoboth Beach—are distinct. As such, we assess the affected populations for these two areas separately.
This regulation will impact any recreational boater wishing to transit the Lewes Rehoboth Canal. The Lewes Rehoboth Canal is about 10 miles long and connects the Broadkill River and the Delaware Bay to Rehoboth Bay. The security zone begins approximately two-thirds of the way through the canal (if starting from the Delaware Bay) and lasts for about a half mile. As such, recreational boaters wishing to transit the canal from the communities of Lewes, Dewey Beach, North Shores, Rehoboth Beach, and West Rehoboth may be impacted by this rule.
These communities are seasonal; their populations are much larger and more active in the summer than in the winter. Vessel traffic in the canal follows the same pattern. Coast Guard officers stationed in this region estimated the numbers of vessels transiting this zone per day by season. We present these estimates in table 2.
The vessel traffic in the canal is entirely recreational. There are no commercial vessels that transit the canal. Moreover, the canal is quite shallow. The Coast Guard's 27-foot vessels navigate the canal with difficulty because of the depth. Kayaks, canoes, and other manually powered watercraft are frequently used in the canal (not counted in the daily vessel traffic estimates).
In addition to the daily traffic of recreational boaters wishing to transit the security zone, there are a number of boat slips located either within the security zone or that require transiting the security zone to access. There are also houses that border sections of the canal wholly inside the security zone. We reviewed satellite images from Google Maps to identify the number of boat slips within the security zone or that require transiting the security zone to access. Based on these satellite images, we estimate that 17 private houses that lie entirely within the canal security zone contain either a boat slip or dock. The boat slips indicate that recreational vessel usage might be undertaken by the owners or occupiers of these properties. Because they lie fully inside the security zone, they will be impacted every time they take out their vessels.
Additionally, a small man-made canal branches off the main Lewes and Rehoboth Canal and leads into a small man-made lake. The southern edge of the safety zone continues just past the entrance to this second canal. Private houses and the North Shores Marina inhabit the land surrounding the second canal and its adjoining lake. Some of these houses contain docks or boat slips. Recreational vessel operations will require transiting through the security zone to reach either the boat slips at these private homes or the North Shores Marina. Use of this canal and lake is primarily local and by small recreational vessels, as this second canal may only be 3 feet deep in certain places. Using Google Maps, we count 14 boat slips or docks connected to private houses and 30 spaces for recreational vessels at the North Shores Marina.
This rule will also impact any recreational boaters that transit the area 1 mile by 500 yards offshore of the North Shores section of Rehoboth Beach. Because of its proximity to the shore, the Coast Guard does not estimate any recreational boaters or commercial vessels routinely operate in this section of the ocean. Vessels operating this close to shore could face additional hazards due to the surf and other marine currents and would avoid this area.
As above, we assess the costs of the two security zones separately.
In table 2, we present the Coast Guard's estimate of the average vessel traffic. Under normal course of operations, the Coast Guard anticipates that recreational boaters transiting the canal would have a brief conversation with the Coast Guard official stationed at the entrance to the security zone. Recreational boaters would then proceed through the security zone (without stopping or loitering) and exit the security zone. We anticipate that this conversation would last between 15 and 30 seconds per recreational boater. Because we do not know how many recreational boaters are on the average boat and because of how small the amount of time per recreational boaters is likely to be, we do not estimate the total costs of these conversations.
Additionally, above we discussed that there are a number of houses and a marina that are contained within the security zone or would require transiting the security zone in order to access. Recreational vessel operators who reside or are visiting a location inside the security zone should be able to relay this information to the Coast Guard personnel stationed at the entrance of the security zone. When recreational boaters provide this additional information, it may increase the duration of the conversation. However, there are only 17 houses with private docks or boat slips contained within the security zone. It is likely, therefore, that the Coast Guard personnel stationed at either end of the security zone would become aware of these vessels and their owners and operators. As a result, conversations may become more brief over time.
In order to access the private docks and boat slips of the 14 houses and the North Shores Marina, recreational vessel operators will need to transit through a small portion of the security zone. The Coast Guard will interpret the vessels seeking to access this second canal as innocent passage. As a result, the Coast Guard personnel do not intend to converse with recreational boaters intending to access the second canal unless they notice suspicious activity. Instead, Coast Guard personnel will report vessels transiting the second canal to the USSS representatives. Because Coast Guard personnel will not converse with the recreational vessel operators transiting this region, we estimate that there would be no costs on boaters who only pass through the lower stretch of the canal security zone in order to access the North Shores Marina or the private houses on the canal or lake.
The costs discussed above cover the normal operations when access to the canal is still permitted. However, when certain individuals protected by the USSS are transiting the area, the Coast Guard may shut down access to the canal. Such closures could last from 1 to 3 hours, or longer. If the security zone is closed to all traffic, recreational boaters will not be able to transit the length of the canal. Recreational boaters wishing to transit through the security zone will be unable to do so.
If this closure happens suddenly, recreational boaters could be stranded on either side of the canal. The distance through the canal is about 10 miles, but to avoid the canal by taking a more circuitous route around Rehoboth Beach would add 25 miles to the journey. Additionally, a significant portion of this distance requires operating in the Atlantic Ocean. The Atlantic Ocean is considerably rougher than the intracoastal waterways. As a result, many of the recreational watercraft unable to transit the security zone may be unable to take an alternate route, either because they may not have a vessel suitable to a coastwise route or may not have the time to add an additional 25 miles on to the journey.
Because we do not know the frequency or duration of full closures of the security zone, we are unable to quantitatively assess the costs to either temporarily stranded vessel operators or to vessel operators wishing to transit the closed waterway.
We do not estimate that any vessels routinely operate in this section of Rehoboth Beach, as discussed in the Affected Population section above. Additionally, were recreational vessel operators to transit this security zone, it is far easier to exit or avoid the security zone than in the canal. Recreational boaters merely will need to be greater than 500 yards from shore. As a result, we do not estimate any costs incurred by the second security zone.
Upon request by the USSS for the Coast Guard to implement security measures in certain sections of the Lewes and Rehoboth Canal and certain sections offshore from Rehoboth Beach,
Both security zones aid the USSS in controlling the area and preventing actors wishing to cause harm to the functioning of the U.S. Government by attacking persons protected by the USSS. Were such an attack to be attempted or to occur, the societal impacts could be sizable and potentially severe to the Nation's Government. Additionally, the local impacts would be substantial as well. The area could be closed for a significant period as any necessary investigations occur. This regulatory action will greatly decrease the likelihood of these potential impacts. The Coast Guard has no way to quantify the frequency of malfeasant actors or the extent to which this rule will diminish the frequency of their attempted or successful actions. However, we believe that the value of these benefits justify the costs of the regulation.
We considered alternatives to the regulatory action to determine if an alternative could accomplish the stated objectives of applicable statutes and could minimize any economic impact on small entities. In developing this rule, the Coast Guard considered the following alternatives:
Without this rule, malfeasant actors could have unfettered access to locations near persons protected by USSS. We believe that this unfettered access presents an unacceptable security risk to the United States. As such, we rejected this alternative.
The Coast Guard considered closing the security zone to traffic entirely, which would have had the added cost of making it impossible to fully transit the canal. We rejected this alternative because there are potentially over 200 recreational boaters a day transiting the security zones in the summer. These boaters would lose their ability to have recreational access of the waterway and any enjoyment that provides them. Additionally, 31 homes with boat slips and a marina with 30 spots are inaccessible without transiting the security zones. These homes, despite existing on the canal with a dock, would be unable to use the waterway. Consequently, we rejected this alternative because the costs would be too high.
This is our preferred alternative and discussed throughout the regulatory analysis. We believe it balances the costs to public in the form of quick conversations with transiting recreational vessels and the occasional inconvenience of a temporary canal closure due to USSS protectees moving around the area with the benefits of ensuring the security of these protected persons.
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this rule would have a significant economic effect on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000 people.
As discussed above, the affected population is entirely recreational. As a result, the individuals directly regulated by this rule are not small entities as defined by the Regulatory Flexibility Act. Based on this analysis, we found this rulemaking will not affect a substantial number of small entities.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under Section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is amending 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2.
(a)
(1)
(2)
(b)
(c)
(2) Entry into or remaining in a security zone described in paragraph (a) of this section is prohibited unless authorized by the COTP or designated representative when the security zones are being enforced. At the start of each enforcement, all persons and vessels within the security zone must depart the zones immediately or obtain authorization from the COTP or designated representative to remain within either zone. All vessels authorized to remain in the zone(s) must proceed as directed by the COTP or designated representative.
(3) A person or vessel operator who intends to enter or transit the security zones while the zones are being enforced must obtain authorization from the COTP or designated representative. While the zones are being enforced the COTP or designated representative will determine access to the zones on a case-by-case basis. A person or vessel operator requesting permission to enter or transit the security zone may contact the COTP or designated representative at 215-271-4807 or on marine band radio VHF-FM channel 16 (156.8 MHz), or by visually or verbally hailing the on-scene law enforcement vessel enforcing the zone. On-scene Coast Guard personnel enforcing this section can be contacted on marine band radio, VHF-FM channel 16 (156.8 MHz). The operator of a vessel must proceed as directed upon being hailed by a U.S. Coast Guard vessel, or other Federal, State, or local law enforcement agency vessel, by siren, radio, flashing light, or other means. When authorized by the COTP or designated representative to enter the security zone all persons and vessels must comply with the instructions of the COTP or designated representative and proceed at the minimum speed necessary to maintain a safe course while within the security zone.
(4) Upon being hailed by a U.S. Coast Guard vessel, or other Federal, State, or local law enforcement agency vessel, by siren, radio, flashing light or other means, a person or operator of a vessel must proceed as directed. Failure to comply with lawful direction may result in expulsion from the regulated area, citation for failure to comply, or both.
(5) Unless specifically authorized by on-scene enforcement vessels, no vessel or person will be permitted to stop or anchor in the security zone. A vessel granted permission to enter or transit within the security zone(s) must do so without delay or pause for the entirety of its time within the boundaries of the security zone(s). At times, for limited duration, it is anticipated that vessels may be prohibited from entering the zone due to movement of persons protected by USSS. During those times, the Coast Guard will provide actual notice to vessels in the area.
(6) The U.S. Coast Guard may secure the entirety of either or both security zones if deemed necessary to address security threats or concerns.
(7) The U.S. Coast Guard may be assisted by Federal, State, and local law enforcement agencies in the patrol and enforcement of the security zone described in paragraph (a) of this section.
(d)
(2) These security zones may be enforced individually or simultaneously.
Environmental Protection Agency (EPA).
Final rule.
Under the Clean Air Act, the Environmental Protection Agency (EPA) is establishing a schedule for the the California Air Resources Board (CARB) to submit revisions to the state implementation plan (SIP) addressing “Severe” area requirements for the 2008 8-hour ozone national ambient air quality standards (NAAQS) for the Eastern Kern nonattainment area (“Eastern Kern”). CARB will be required to submit SIP revisions addressing Severe area requirements for Eastern Kern, including revisions to new source review (NSR) rules, no later than January 7, 2023. Submittal of any necessary revisions to the title V rules that apply in Eastern Kern are due no later than January 7, 2022. Lastly, the EPA is establishing a deadline for implementation of new reasonably available control technology (RACT) rules as expeditiously as practicable but no later than July 7, 2024.
This rule is effective September 27, 2021.
The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2021-0341. All documents in the docket are listed on the
Ben Leers, Air Planning Office (AIR-2), EPA Region IX, (415) 947-4279,
Throughout this document, “we,” “us,” and “our” refer to the EPA.
On June 7, 2021, the EPA issued a final rulemaking granting a request by CARB to reclassify Eastern Kern from “Serious” to Severe for the 2008 ozone NAAQS under section 181(b)(3) of the Clean Air Act (CAA).
Our June 7, 2021 proposed rule includes background information concerning the EPA's promulgation of the 2008 ozone NAAQS and history of the designation and classification of Eastern Kern for the 2008 ozone NAAQS. Our proposed rule also describes the Severe area SIP requirements that apply to Eastern Kern as a result of the reclassification and proposes a schedule for CARB to submit Severe area SIP requirements and title V rule revisions.
More specifically, in our proposed rule, we proposed to establish a deadline for CARB to submit SIP revisions addressing Severe area requirements for Eastern Kern, including revisions to NSR rules, no later than 18 months from the effective date of the EPA's final rule reclassifying Eastern Kern to Severe for the 2008 ozone NAAQS. We also proposed to establish a deadline of no later than six months from the effective date of the reclassification for CARB to submit any corresponding revisions to title V rules for Eastern Kern. Lastly, we proposed to establish a deadline for implementation of new RACT rules in Eastern Kern as expeditiously as practicable but no later than 18 months from the date when the Severe area RACT SIP is due. The effective date of the EPA's final rule reclassifying Eastern Kern to Severe for the 2008 ozone NAAQS is July 7, 2021. In this final rule, we are taking final action to establish the various deadlines based on the July 7, 2021 effective date for reclassification.
The public comment period on the proposed rule opened on June 7, 2021, the date of its publication in the
For the reasons described in our June 7, 2021 proposed rule, the EPA is invoking its CAA section 301(a) authority to establish a deadline of no later than January 7, 2023 (
Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by classification, the timing of the submittal of the Severe area requirements does not impose a materially adverse impact under
In addition, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Executive Order 13175 (65 FR 67249, November 9, 2000) requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations 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.” There are no Indian reservation lands or other areas where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction within the Eastern Kern ozone nonattainment area, and thus, this action 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.
This action also does not have federalism implications because 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action does not alter the relationship, or the distribution of power and responsibilities established in the Clean Air Act.
This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997). The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action does not concern an environmental health risk or safety risk.
As this action establishes a deadline for the submittal of CAA required plans and information, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. This action addresses the timing for the submittal of Severe area ozone planning requirements, and we find that it does not have disproportionately high and adverse human health or environmental health effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898.
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 October 25, 2021. 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, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
Federal Acquisition Security Council.
Final rule.
As authorized by the Federal Acquisition Supply Chain Security Act of 2018 (FASCSA), the Federal Acquisition Security Council (FASC) is issuing this final rule to implement the requirements of the laws that govern the operation of the FASC, the sharing of supply chain risk information, and the exercise of the FASC's authorities to recommend issuance of removal and exclusion orders to address supply chain security risks. This rule finalizes the interim final rule and corrects the codification structure of the interim final rule.
Effective September 27, 2021.
Kosta I. Kalpos, 202-881-9601,
Information and communications technology and services (ICTS) are essential to the proper functioning of U.S. Government information systems. The U.S. Government's efforts to evaluate threats to and vulnerabilities in ICTS supply chains have historically been ad hoc, undertaken by individual or small groups of agencies to address specific supply chain security risks. Because of the scale of supply chain risks faced by Government agencies, and the need for Government-wide coordination, Congress adopted new legislation in 2018 to improve executive branch coordination, supply chain information sharing, and actions to address supply chain risks.
The Federal Acquisition Supply Chain Security Act of 2018 (FASCSA or Act) (Title II of Pub. L. 115-390), signed into law on December 21, 2018, established the Federal Acquisition Security Council (FASC). The FASC is an executive branch interagency council chaired by a senior-level official from the Office of Management and Budget. It includes representatives from the General Services Administration; Department of Homeland Security (DHS); Office of the Director of National Intelligence (ODNI); Department of Justice; Department of Defense (DOD); and Department of Commerce. The FASC is authorized to perform a variety of functions, including making recommendations for orders that would require the removal of covered articles from executive agency information systems or the exclusion of sources or covered articles from executive agency procurement actions.
Pursuant to subsection 202(d) of the FASCSA, the FASC is required to prescribe first an interim final rule and then a final rule to implement subchapter III of chapter 13 of title 41, U.S. Code. The FASC published the interim final rule (interim rule) at 85 FR 54263 on September 1, 2020. The interim rule invited interested persons to submit comments on or before November 2, 2020. Six entities submitted comments. The final rule reflects changes made based upon some of those comments, as well as feedback received from internal Federal stakeholders. The final rule also corrects certain structural issues introduced by the interim rule, as explained in more detail in section III. This final rule retains the organization and much of the content of the interim rule. It contains three subparts. Subpart A explains the scope of the rule, provides definitions for relevant terms, and establishes the membership of the FASC. Subpart B establishes the role of the FASC's information sharing agency (ISA). DHS, acting primarily through the Cybersecurity and Infrastructure Security Agency, will serve as the ISA. The ISA standardizes processes and procedures for submission and dissemination of supply chain information and facilitates the operations of a Supply Chain Risk Management (SCRM) Task Force under the FASC. This FASC Task Force consists of of designated technical experts who assist the FASC in implementing its information sharing, risk analysis, and risk assessment functions. Subpart B also prescribes mandatory and voluntary information sharing criteria and associated information protection requirements.
Subpart C provides the procedures by which the FASC will evaluate supply chain risk from sources and covered articles and recommend issuance of orders requiring removal of covered articles from executive agency information systems (removal orders) and orders excluding sources or covered articles from future procurements (exclusion orders). Subpart C also provides the process for issuance of removal orders and exclusion orders and agency requests for waivers from such orders.
Headings and section numbers for the final rule have been adjusted to match the distinctive structure of CFR title 41. The standard structure of 41 CFR, unlike other titles, is:
The interim rule however, did not align with that structure. It did not add a chapter to title 41 CFR, and its numbering scheme for part and section numbers did not match that of title 41. Because of these structural issues, the interim rule added part 201 to subtitle E (where the amendments could not be codified) instead of adding chapter 201 to subtitle D. The final rule fixes those structural issues, changing interim part 201 to part 201-1, adjusting the section numbering according, and eliminating the improperly codified interim part 201. Internal cross-references within the rule have been updated accordingly.
In general, numerous minor changes were made to the interim rule's text to clarify or simplify it. Although the substance of the final rule largely matches that of the interim rule, several changes have been made in response to public comments and input from Federal stakeholders. Those changes, as well as numerous more minor, technical changes, are summarized below for each section of the final rule that has been modified from the interim rule.
The final rule incorporates minor technical, clarifying, or simplifying changes to the definitions of “exclusion order,” “national security system,” and “removal order,” and “supply chain risk information.”
Minor changes were made to paragraph (c) of this section to track the underlying statutory language more closely.
Paragraph (a) was modified to clarify that information should be submitted to the FASC by sending it to the ISA.
Paragraph (b) was modified to provide that the ISA, the FASC Task Force, and support personnel will carry out information receipt and dissemination functions on behalf of the FASC.
Paragraph (c) was modified to remove the obligation for the ISA to provide a physical facility to host the FASC Task Force.
Paragraph (d) was modified to clarify the nature of the processes and procedures to be adopted by the FASC.
Paragraph (e) of this section of the interim rule has been deleted from the final rule. That paragraph, which provided for the ISA to identify “resource gaps” to the FASC, was determined to be unnecessary.
Minor technical corrections and clarifying changes were made to paragraphs (a) and (b).
Paragraph (d) was modified to make minor technical and clarifying changes and to make clear that its provisions apply only to submissions by Federal agencies.
The section corresponding to this one in the interim rule erroneously included two provisions labeled as paragraph (d). The second provision labeled paragraph (d) has been labeled paragraph (f) in the final rule. Paragraph (f)(3) of the final rule has been modified from its analogue in the interim rule to clarify that the FASC will not release a recommendation to a non-Federal entity unless an exclusion or removal order has been issued based on that recommendation, and the affected source has been notified.
The provision that appeared in paragraph (e) of this section of the interim rule has been removed from the final rule because it was superfluous and could have been interpreted to imply incorrectly that the FASC must explicitly authorize agencies to rely upon information disseminated to them by the FASC.
Paragraph (e) of this section of the final rule has been added to describe the protection that will be afforded to voluntary submissions by non-Federal entities.
1. § 201-1.300—Evaluation of Sources and Covered Articles
Paragraph (a) was edited for clarity and brevity.
The heading of paragraph (b) was changed to “Relevant factors” from “Criteria.” The list appearing in that paragraph has been modified to clarify or adjust the description of some factors and to include as a factor the user environment in which a covered article is used or installed.
The language in paragraph (c) of the interim rule was shifted to paragraph (d) and replaced with a statement providing that nothing in this section shall be construed to authorize the issuance of a removal order based solely on the fact of the foreign ownership of a potential procurement source that is otherwise qualified to enter into procurement contracts with the Federal Government.
Paragraph (d)(3) (interim rule paragraph (c)(3)) was removed as duplicative of paragraph (d)(1).
Paragraph (e) of the interim rule was broken into two separate paragraphs and moved into § 201-1.301 to simplify the structure of the final rule.
Paragraph (e) of interim rule § 201.301 has been moved to this section as paragraphs (a) and (b). Minor clarifying changes were made to the language of those paragraphs.
The language included in paragraphs (c) and (d) of interim rule § 201.302 was relocated to paragraphs (d) and (e) in this section of the final rule. A new provision was added as paragraph (c) to clarify how the FASC may rescind a recommendation upon consideration of a source's response in opposition to a notice of recommendation. Paragraph (d) of the interim rule, now located in paragraph (e) of the final rule, was modified so that the protections afforded under that provision are the same as those afforded with respect to information submitted voluntarily by non-Federal entities.
Various simplifying or clarifying edits were made to the provisions of interim rule § 201.303, and the content of that interim rule section was also reorganized into a more logical paragraph structure for the final rule. The interim rule's description of the authority of the Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence was modified to mirror the underlying statutory language more closely and make clear that the authority to issue exclusion and removal orders is discretionary.
The final rule includes minor technical corrections and clarifications that were made to the provisions of this section of the interim rule. Paragraph (a)(2) no longer requires agencies to obtain FASC approval before publicly releasing an exclusion or removal order. Instead, the final rule requires that agencies comply with any dissemination or other controls placed upon an exclusion or removal order by the issuing official.
Paragraph (b) of the final rule includes new language specifying certain requirements to be met by agencies requesting to be excepted from the provisions of an exclusion or removal order. Those agencies must submit their request in writing to the official who issued the order and provide specified information, including a compelling justification for the waiver and a description of any forms of risk mitigation to be undertaken if the waiver is granted.
The FASC received six sets of comments from the public in response to the publication of the interim rule. Relevant comments from those submissions are addressed below in connection with the rule subpart to which they relate or, if they do not relate to a particular subpart, under the heading “General Comments.” Because no comments related particularly to subpart A of the interim rule, no heading is provided for that subpart in this section for Comments and Responses.
Subpart B establishes the role of the FASC's information sharing agency (ISA), provides for an interagency Task Force to support the FASC, prescribes mandatory information-sharing criteria for Federal agencies, and outlines requirements for marking, handling, and disseminating protected supply chain risk information. Multiple commenters asked for further clarification of the protections that would be afforded to non-Federal entities who voluntarily share information with the FASC. In response to these comments, § 201-1.201(e) was added to the final rule to describe the protection that will be afforded to information that is submitted to the FASC by such non-Federal entities (NFEs) and that is not otherwise publicly or commercially available. If such information is marked by the submitting NFE with the legend, “Confidential and Not to Be Publicly Disclosed,” the FASC will not release the marked material to the public, except to the extent required by law. Regardless of any protection offered by that general rule, § 201-1.201(e)(2) makes clear that the FASC retains broad discretion to disclose information submitted by NFEs to appropriate recipients in a range of circumstances.
The FASC recognizes that its retention of such broad discretion may dissuade some NFEs from submitting sensitive information. At this time, however, the FASC has chosen to prioritize greater sharing of information in appropriate circumstances over the possibility of receiving more supply chain risk information from NFEs. If the FASC determines over time that the Federal Government's interests would be better served by a different weighing of priorities, the FASC may revise the rule accordingly.
One commenter asked whether NFEs who shared information with the FASC would receive protection under the Cybersecurity Information Sharing Act of 2015 (CISA 2015), Public Law 114-113, div. N. The final rule does not address that issue. The FASC is continuing to coordinate with FASC member agencies to consider any intersections between CISA 2015 and the FASC's authorities and may, as appropriate, provide further guidance to stakeholders at a future date.
Several commenters also suggested that the FASC should afford protections to NFEs whose information might be used to support the issuance of an exclusion or removal order. The final rule provides for no such protections. The FASC lacks authority to obviate, restrict, or otherwise alter the potential legal liability of one private party to another. And other, more indirect forms of protection—such as an automatic guarantee of confidentiality or protection from public disclosure of the identity of providers of information—could decrease the quality of information received from NFEs by removing disincentives that would otherwise deter the submission of inaccurate or misleading information. Shielding the identity of NFEs who
Another commenter requested more information about the FASC's “influence” on “priorities and taskings” within the intelligence community. No changes to the rule have been made in response to that request. Executive agencies, including those encompassing components of the intelligence community, will continue to follow their relevant authorities with regard to their own priorities and taskings.
Several comments concerned the possible release of information to the public by the FASC. Some commenters requested more information about the circumstances in which the FASC will share supply chain risk information with the private sector; others suggested that the FASC should maintain a public list of sources and covered articles that have been the subject of exclusion or removal orders. The final rule does not specify circumstances in which the FASC must share information with the public, or require maintenance of a public list of sources and covered articles that have been the subject of exclusion or removal orders. The FASC anticipates that determining whether to release supply chain risk information—including the names of sources and covered articles addressed by exclusion or removal orders—will be a highly fact-specific inquiry. Other applicable law and binding government-wide policies may also limit the information that the FASC may publicly disclose. For instance, national security considerations may require that, in some scenarios, the nature of certain covered articles or sources or the rationale for some FASC recommendations not be made public. Accordingly, the final rule simply states that the FASC will comply with applicable legal requirements in light of the particular circumstances to decide the extent to which supply chain risk information can be released to non-government entities.
Subpart C addresses evaluation of sources and covered articles by the FASC. It enumerates the processes by which the FASC may issue a recommendation, obtain a response to a recommendation from named sources, and, when appropriate, rescind a recommendation. Commenters raised several topics in connection with this subpart.
One commenter asked whether protections would be offered for “companies that have been identified to the FASC as a potential risk” but are not the subject of a recommendation or a removal/exclusion order. The commenter speculated that contracting offices in the Federal Government could create an “informal blacklist” that would prevent companies that had been identified as security risks from contracting with the Federal Government. The FASC has seen no evidence that its activities will result in a blacklist. As a result, the final rule does not include any changes in response to this public comment.
Some commenters suggested that because NFEs may submit information voluntarily to the FASC, the FASC may receive inaccurate or false information from companies attempting to sabotage competitors. Commenters suggested various means to address this contemplated problem: Requiring NFEs submitting information to execute a certification of some kind attesting to their good faith; providing affected sources with remedies against NFEs who submit false information; enlisting private-sector entities to “vet” supply chain risk information; or limiting the extent to which information may be requested by the FASC or submitted by NFEs. The FASC does not believe that the rule should include any of these measures at this time. The final rule retains in § 201-1.300(d) the requirement that the FASC perform “appropriate due diligence” in evaluating supply chain risk. The FASC may request and obtain information from a wide range of sources within the Federal Government, including investigative and intelligence-gathering agencies; it has ample means to assess the reliability of information received from the private sector or elsewhere. As a result, the FASC concludes that there is little basis to believe that the submission of inaccurate information by NFEs will subvert the outcome of the FASC's deliberations.
Commenters also expressed concern that, under § 201-1.300(b), a source's ties to foreign countries are expressly identified as one factor among many to be considered as part of a supply chain risk analysis. These commenters pointed out that many companies have connections to other nations, and asserted that companies fear that their association with a certain country or countries will automatically place them under suspicion within the FASC. In response to these comments, the interim rule was modified to include § 201-1.300(c), which echoes 41 U.S.C. 1323(f)(2)'s text to emphasize that nothing in the rule may be construed to authorize the issuance of an exclusion or removal order based solely on the foreign ownership of an otherwise qualified source. Additionally, the final rule, like the interim rule, lists a source's foreign ties merely as one factor among a non-exclusive list of factors to be considered in the FASC's evaluation; nothing in either rule requires that factor to be given determinative weight.
For that reason, the FASC disagrees with a commenter who suggested that such a factor was inconsistent with treaties intended to encourage international trade. Such treaties form part of the backdrop against which the FASC will make its decisions. Given the international ties of many companies and the extensive participation of the United States in the global economy, the FASC will not be inclined to recommend exclusion of a company simply because it is active in more than one country.
One commenter suggested that the FASC consider foreign ties in its analysis only if those ties concern a country other than an ally of the United States. Another requested that the rule be amended to specify the component of the Federal Government with authority to designate a country as “a country of special concern or a foreign adversary” pursuant to § 201-1.300(b). Neither recommendation has been implemented in the final rule because the FASC is already able to account for the considerations suggested by the commenters. In evaluating the risk posed by a covered article or a source, the FASC may consider not just whether a source has connections to a foreign country, but also the nature of that country's relationship with the United States; it may consider not just whether a Federal agency has designated a country as an adversary, but also which agency or official made that designation and why.
Several comments concerned the process by which exclusion or removal orders may be issued. One, for example, recommended that any source being evaluated by the FASC should be notified “at the outset” of that review and allowed to comment “as early as possible.” The final rule does not implement that recommendation. Depending on the circumstances of a particular case, national security considerations may weigh against informing a source that it has drawn the attention of the FASC at a time when no recommendation has been issued. As a result, the final rule does not mandate either early or ongoing communication with a source prior to the issuance of a recommendation.
Other comments raised the concern that sources named in a recommendation would not receive enough information from the FASC to mount an adequate response. The final rule, like the interim rule, provides that the source named in a recommendation must be notified of the criteria relied upon by the FASC in developing that recommendation. § 201-1.302(b)(2). The source must also be advised of the information upon which the FASC based its recommendation, so long as disclosure of that information is consistent with national security and law enforcement interests. This body of information will allow the source to understand the FASC's reasoning and so to prepare a response. Contrary to one commenter's suggestion, the “criteria” to be disclosed to the source are not equivalent to a simple list of the generically described factors identified in § 201-1.300(b) of the final rule. To make that fact clear, the label for that list of factors in the final rule has been changed from “Criteria” to “Relevant Factors.”
The interim final rule provided that the administrative record on judicial review of an exclusion or removal order would include, among other things, “any information or materials directly relied upon by the” official who issued the order. One commenter objected that the use of the word “directly” indicated that the administrative record supporting exclusion or removal orders would not conform to the requirements of the FASCSA. To prevent any such misinterpretation and mirror the language of the FASCSA more closely, the word “directly” has been removed from paragraphs (b)(4) and (c) of § 201-1.303.
Some commenters made broader or more general suggestions regarding FASC processes. One recommended that the FASC should require what it called “standard due process trappings,” including “hearings, discovery, right to counsel, [and] the ability to appeal [to the] [F]ederal court system.” No change to the interim rule has been made in response to this comment. The final rule, like the interim rule and the FASCSA statutory scheme, provides for due process by ensuring that affected sources will be notified of possible adverse action and given an opportunity to address the Federal Government's basis for such an action. The rule and the statutory scheme also provide for review by a Federal court of appeals of any exclusion or removal order resulting from a FASC recommendation. Discovery is not contemplated by the FASCSA and is not a “standard due process” element in judicial review based upon an administrative record. There is no due process right to counsel in civil matters. Mandating additional procedures such as a discovery process would make the FASC's proceedings considerably slower and more expensive, thereby impeding the Federal Government's ability to protect against serious cyber threats to its systems—a result that is contrary to the purposes of the FASCSA and would significantly undermine important Federal Government interests.
Another commenter requested that the FASC afford the public the opportunity for comment before enacting new rules, and that an opportunity for appeal be given for “measures targeting specific companies.” The FASC has concluded that any applicable requirements of the Administrative Procedure Act are fully sufficient to address the public interests implicated by new rules. In addition, the FASCSA provides sources named in exclusion or removal orders the opportunity to appeal an order to a Federal court of appeals. 41 U.S.C. 1327(b). Because these requests are addressed by statute, the FASC has not modified the interim rule to address them.
One commenter objected to the statement in the preamble to the interim rule that “the FASC does not intend to publicly disclose communications with the source(s) except to the extent required by law,” suggesting that it conflicted with provisions of the interim rule concerning the treatment of confidential information submitted by a source in response to a notice of a FASC recommendation. For the final rule, the relevant provision of the interim rule has been modified to clarify that confidential information submitted by a source is subject to the same degree of protection provided pursuant to new § 201-1.201(d) for confidential information submitted voluntarily by NFEs.
One commenter inquired about the timing of the FASC recommendation process, suggesting that the rule prescribe “a reasonable timeline regarding when” an exclusion or removal order is issued and “when it will go into effect.” The same commenter asserted that a source named in an exclusion or removal order should be afforded at least 60 days from the effective date of an order “to respond to the FASC.” This comment reflects a misunderstanding of the FASC process. The FASC does not issue exclusion or removal orders, and so a source has no reason to “respond to the FASC” once such an order is issued. The FASC makes recommendations for the issuance of orders. Any sources named in a FASC recommendation will have the opportunity to respond to the FASC before an order may be issued. The FASC may alter or withdraw its recommendation based on a source's response. If the FASC chooses not to do so, then an appropriate official from DHS, DOD, or ODNI may issue an order based on the recommendation.
Pursuant to 41 U.S.C. 1327, a source may request judicial review of an order within 60 days after being notified of its issuance. The ordering official, not the FASC, is responsible both for deciding the effective date of the order and for providing notification of the order to the source. 41 U.S.C. 1323(c)(5), (6). As a result, the FASC does not in the interim or the final rule attempt to constrain the ordering official's discretion as to the manner in which the effective date of an order is determined or in which notification of an order is issued to the source.
The same commenter opined that the FASC should prescribe in the final rule “a reasonable timeline” for when a covered procurement action may be announced and when it may go into effect. Fact-specific considerations, such as the imminence of the risk posed by a source and the characteristics of the procurement at issue, will heavily influence the timeline for a covered procurement action. The final rule therefore allows authorized officials to determine an appropriate timeline on a case-by-case basis, rather than prescribing a single approach.
The same commenter also suggested that the FASC should issue a preliminary recommendation, allow submission of a response by the affected source(s), and then issue a final recommendation. The final rule provides for such a process, although it does not label recommendations as “preliminary” or “final.” Instead, the
One commenter asked that the FASC clarify whether the FASC may release its recommendation even if no related exclusion or removal order is issued. The final rule addresses that issue in paragraph (f)(3) of § 201-1.201, providing that if a recommendation is rescinded, or the relevant officials determine that no exclusion or removal order will be issued based upon it, the recommendation will be kept confidential and will not be released to entities, other than the source, outside of the Federal Government.
Two commenters suggested that exclusion or removal orders should be narrowly tailored, or should incorporate a finding that the action ordered represents the least intrusive measure reasonably available to address a given supply chain risk. No change to the rule was made in response to these comments. As the interim rule did, the final rule requires the FASC to include in a recommendation for an exclusion or removal order “a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk.” § 201-1.301(a)(4). That requirement ensures that the FASC will consider the disruption that may result from a contemplated action, weigh it against the threat to be addressed, and issue a recommendation of appropriate scope.
Several comments requested rule provisions establishing the nature and extent of contractors' and subcontractors' obligations under exclusion or removal orders. The FASC anticipates that such obligations will vary widely depending on the nature of the circumstances addressed by an exclusion or removal order. As a result, it is not feasible to attempt to prescribe those obligations categorically through this rulemaking. Instead, those obligations must be ascertained based upon the content of the order in question and any guidance issued by the ordering agency or the agencies implementing that order, as well as any applicable contract terms or procurement regulations.
One commenter recommended that the FASC adopt a rule requiring the notification of prime contractors whenever a subcontractor is the subject of a recommendation. The FASC declines to follow that suggestion. If a FASC recommendation is not implemented through the issuance of one or more exclusion or removal orders, then there may never be a need for prime contractors to react to that recommendation. Furthermore, alerting primes to the issuance of a recommendation that may never yield an order may conflict with national security interests and/or the named source's interest in confidentiality.
One commenter requested further detail on the manner in which an agency can obtain a waiver relieving it of obligations under an exclusion or removal order. The final rule includes a new paragraph in § 201-1.304 that clarifies the waiver process. An agency seeking an exception to some or all of the requirements of an order must submit a request for that exception to the ordering official. The request must identify the relevant order and the covered article or source affected, describe precisely the exception sought, and provide a compelling justification for the grant of an exception as well as an account of any alternative risk reduction techniques the agency will employ in lieu of complying with the order. The official who issued the order has the authority to decide whether an exception will be granted.
Some commenters urged the FASC to adopt rule provisions creating a permanent or standardized relationship between the FASC and the private sector. Although the FASC recognizes that the private sector has a great deal of knowledge about and experience with supply chain risk analysis and mitigation, the final rule does not provide for a particular type of formal relationship or engagement with industry. The FASC is still in the early stages of its operations and requires further information—gained from experience—to determine the most effective ways to interact with the private sector. It is premature to prescribe regulations dictating the nature of that engagement at this time.
Some comments suggested that the FASC rely upon an already existing task force housed within the Department of Homeland Security. Although the FASC certainly intends to draw upon the knowledge and experience of that task force to the extent feasible, the final rule does not mandate a role for it. The task force managed by the Department of Homeland Security is not a permanent entity. It would therefore be impractical to mandate a role for that task force in FASC operations.
Other comments emphasized the numerous supply chain risk initiatives within the Federal Government and requested that the FASC make efforts to bring coherence to the standards and activities stemming from those various initiatives. The FASC recognizes that the Federal Government's supply chain risk management activities may benefit from greater consistency and coordination and intends to work toward those goals.
Similarly, one comment urged the FASC to operate through an “inter-agency process” that accounts for “other supply chain-related laws, regulations, and risk mitigation measures.” The FASC emphasizes that it is itself an interagency body drawing upon the efforts and resources of its constituent members. The final rule, like the interim rule, provides that the FASC will be supported by a FASC Task Force composed of SCRM experts drawn from across the Federal Government. Because the FASC's activities necessarily constitute an “inter-agency process,” no changes have been made to the interim rule in response to this comment.
One commenter protested that exclusion or removal orders could have “disparate impacts” on small businesses. But that commenter did not suggest any specific change that might address that putative problem while ensuring the FASC retained its ability to address supply chain risks. Both the interim and the final rule require the FASC to consider the intrusiveness of its recommendations; the effect of a recommended order on contractors, including small business, may be considered as appropriate as part of that analysis. As a result, no change to the rule has been made based on this comment.
No change to the rule has been made in response to a comment asserting that complying with exclusion and removal orders is likely to be “incredibly expensive” to American companies. The FASC expects to weigh the burden likely to result from a recommended order against the anticipated benefit and would not lightly recommend an order that would be “incredibly expensive” either to the Federal Government or to the private sector. The final rule requires the FASC to include in a recommendation for an exclusion or removal order “a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk.” That requirement will help to ensure that the costs of exclusion and
Finally, one commenter asserted that commercial products and commercial-off-the-shelf (COTS) items should be excluded from the reach of the FASC because addressing them through exclusion or removal orders would “deprive government of significant innovation and the latest technologies.” The FASC strongly disagrees with that recommendation. The ubiquity of commercial products and COTS items, not only within the Federal Government, but within the private sector as well, means that they are a frequent target of malicious actors seeking to find and capitalize upon technological vulnerabilities. Excluding those items from oversight by the FASC would undermine the Council's ability to reduce the Federal Government's exposure to supply chain risk. No changes have been made in response to this comment.
Computer technology, Cybersecurity, Government procurement, Government technology, Information technology, National security, Security measures, Science and technology, Supply chain, Supply chain risk management.
For the reasons set out in the preamble, the FASC amends 41 CFR subtitles D and E as follows:
41 U.S.C. 1321-1328, 4713.
(a)
(1) The membership and operations of the FASC, including all Federal Government and contractor personnel supporting the FASC's operations;
(2) Submission and dissemination of supply chain risk information; and
(3) Recommendations for, issuance of, and associated procedures related to removal orders and exclusion orders.
(b)
(1) Mandatory submission of supply chain risk information by non-Federal entities; or
(2) The removal or exclusion of any covered article by non-Federal entities, except to the extent that an exclusion or removal order issued pursuant to subpart C of this part applies to prime contractors and subcontractors to Federal agencies.
For the purposes of this part:
(1) The Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Armed Services, the Committee on Commerce, Science, and Transportation, the Select Committee on Intelligence, and the majority and minority leader of the Senate; and
(2) The Committee on Oversight and Government Reform, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Homeland Security, the Committee on Armed Services, the Committee on Energy and Commerce, the Permanent Select Committee on Intelligence, and the Speaker and minority leader of the House of Representatives.
(1) Information technology, as defined in 40 U.S.C. 11101, including cloud computing services of all types;
(2) Telecommunications equipment or telecommunications service, as those terms are defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
(3) The processing of information on a Federal or non-Federal information system, subject to the requirements of the Controlled Unclassified Information program or subsequent U.S. Government program for controlling sensitive unclassified information; or
(4) Hardware, systems, devices, software, or services that include embedded or incidental information technology.
(1) A source selection for a covered article involving either a performance specification, as provided in subsection (a)(3)(B) of 41 U.S.C. 3306, or an evaluation factor, as provided in subsection (b)(1)(A) of 41 U.S.C. 3306,
(2) The consideration of proposals for and issuance of a task or delivery order for a covered article, as provided in 41 U.S.C. 4106(d)(3), where the task or delivery order contract includes a contract clause establishing a requirement relating to a supply chain risk;
(3) Any contract action involving a contract for a covered article where the contract includes a clause establishing requirements relating to a supply chain risk; or
(4) Any other procurement in a category of procurements determined appropriate by the Federal Acquisition Regulatory Council, with the advice of the FASC.
(1) The exclusion of a source that fails to meet qualification requirements established under 41 U.S.C. 3311, for the purpose of reducing supply chain risk in the acquisition or use of covered articles;
(2) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order;
(3) The determination that a source is not a responsible source, based on considerations of supply chain risk; or
(4) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor to exclude a particular source from consideration for a subcontract under the contract.
(1) An executive department specified in 5 U.S.C. 101;
(2) A military department specified in 5 U.S.C. 102;
(3) An independent establishment as defined in 5 U.S.C. 104(1); and
(4) A wholly owned Government corporation fully subject to chapter 91 of title 31, United States Code.
(1) Information technology as defined in 40 U.S.C. 11101;
(2) Information systems, as defined in 44 U.S.C. 3502; and
(3) Telecommunications equipment and telecommunications services, as those terms are defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153).
(1) The Office of the Director of National Intelligence;
(2) The Central Intelligence Agency;
(3) The National Security Agency;
(4) The Defense Intelligence Agency;
(5) The National Geospatial-Intelligence Agency;
(6) The National Reconnaissance Office;
(7) Other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs;
(8) The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Coast Guard, the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Department of Energy;
(9) The Bureau of Intelligence and Research of the Department of State;
(10) The Office of Intelligence and Analysis of the Department of the Treasury;
(11) The Office of Intelligence and Analysis of the Department of Homeland Security;
(12) Such other elements of any department or agency as may be designated by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency concerned, as an element of the Intelligence Community.
(1) Functionality and features of covered articles, including access to data and information system privileges;
(2) The user environment where a covered article is used or installed;
(3) The ability of a source to produce and deliver covered articles as expected;
(4) Foreign control of, or influence over, a source or covered article (
(5) Implications to government mission(s) or assets, national security, homeland security, or critical functions associated with use of a source or covered article;
(6) Vulnerability of Federal systems, programs, or facilities;
(7) Market alternatives to the covered source;
(8) Potential impact or harm caused by the possible loss, damage, or compromise of a product, material, or service to an organization's operations or mission;
(9) Likelihood of a potential impact or harm, or the exploitability of a system;
(10) Security, authenticity, and integrity of covered articles and their supply and compilation chain;
(11) Capacity to mitigate risks identified;
(12) Factors that may reflect upon the reliability of other supply chain risk information; and
(13) Any other considerations that would factor into an analysis of the security, integrity, resilience, quality, trustworthiness, or authenticity of covered articles or sources.
(a)
(1) Office of Management and Budget;
(2) General Services Administration;
(3) Department of Homeland Security;
(4) Cybersecurity and Infrastructure Security Agency;
(5) Office of the Director of National Intelligence;
(6) National Counterintelligence and Security Center;
(7) Department of Justice;
(8) Federal Bureau of Investigation;
(9) Department of Defense;
(10) National Security Agency;
(11) Department of Commerce;
(12) National Institute of Standards and Technology; and
(13) Any other executive agency, or agency component, as determined by the Chairperson of the FASC.
(b)
(c)
(d)
The Act requires the FASC to identify an appropriate executive agency—the FASC's information sharing agency (ISA)—to perform administrative information sharing functions on behalf of the FASC, as provided at 41 U.S.C. 1323(a)(3). The ISA facilitates and provides administrative support to a FASC supply chain and risk management Task Force, and serves as the liaison to the FASC on behalf of the Task Force, as the Task Force develops the processes under which the functions described in 41 U.S.C. 1323(a)(3) are implemented on behalf of the FASC. The Department of Homeland Security (DHS), acting primarily through the Cybersecurity and Infrastructure Security Agency, is named the appropriate executive agency to serve as the FASC's ISA. The ISA's administrative functions shall not be construed to limit or impair the authority or responsibilities of any other Federal agency with respect to information sharing.
(a)
(b)
(c)
(d)
(1) Processes and procedures describing how the ISA operates and supports FASC recommendations issued pursuant to 41 U.S.C. 1323(c);
(2) Processes and procedures describing how Federal and non-Federal entities must submit supply chain risk information (both mandatory and voluntary submissions of information) to the FASC, including any necessary requirements for information handling, protection, and classification;
(3) Processes and procedures describing the requirements for the dissemination of classified, controlled unclassified, or otherwise protected information submitted to the FASC by executive agencies;
(4) Processes and procedures describing how the ISA facilitates the sharing of information to support supply chain risk analyses under 41 U.S.C. 1326, recommendations issued by the FASC, and covered procurement actions under 41 U.S.C. 4713;
(5) Processes and procedures describing how the ISA will provide to the FASC and to executive agencies on behalf of the FASC information regarding covered procurement actions and any issued removal or exclusion orders; and
(6) Any other processes and procedures determined by the FASC Chairperson.
(a)
(b)
(1) The FASC requests information relating to a particular source, covered article, or covered procurement; or
(2) An executive agency has determined there is a reasonable basis to conclude that a substantial supply chain risk exists in connection with a source or covered article. In such instances, the executive agency shall provide the FASC with relevant information concerning the source or covered article, including:
(i) Supply chain risk information identified in the course of the agency's activities in furtherance of identifying, mitigating, or managing its supply chain risk;
(ii) Supply chain risk information regarding any covered procurement actions by the agency under 41 U.S.C. 4713; and
(iii) Supply chain risk information regarding any orders issued by the agency under 41 U.S.C. 1323.
(c)
(d)
(1) For classified information, the transmitting agency shall ensure that information is provided to designated ISA personnel who have an appropriate security clearance and a need to know the information. The ISA, Task Force, and the FASC will handle such information consistent with the applicable restrictions and the relevant processes and procedures adopted pursuant to § 201-1.200.
(2) With respect to controlled unclassified or otherwise protected unclassified information, the transmitting agency, the FASC, the ISA, and the Task Force will handle the information in a manner consistent with the markings applied to the information and the relevant processes and procedures adopted pursuant to § 201-1.200.
(e)
(1) Supply chain risk information not otherwise publicly or commercially available that is voluntarily submitted to the FASC by non-Federal entities and marked “Confidential and Not to Be Publicly Disclosed” will not be released to the public, including pursuant to a request under 5 U.S.C. 552, except to the extent required by law.
(2) Notwithstanding paragraph (e)(1) of this section, the FASC may, to the extent permitted by law, and subject to appropriate handling and confidentiality requirements as determined by the FASC, disclose the supply chain risk information referenced in paragraph (e)(1) in the following circumstances:
(i) Pursuant to any administrative or judicial proceeding;
(ii) Pursuant to a request from any duly authorized committee or subcommittee of Congress;
(iii) Pursuant to a request from any domestic governmental entity or any foreign governmental entity of a United States ally or partner, but only to the extent necessary for national security purposes;
(iv) Where the non-Federal entity that submitted the information has consented to disclosure; or
(v) For any other purpose authorized by law.
(3) This paragraph (e) shall continue to apply to supply chain risk information referenced in paragraph (e)(1) even after the FASC issues a recommendation for exclusion or removal pursuant to 41 U.S.C. 1323.
(f)
(1) The FASC may maintain its recommendations and any supply chain risk information as nonpublic, to the extent permitted by law, or release such information to impacted entities and appropriate stakeholders. The FASC shall have discretion to determine the circumstances under which information will be released, as well as the timing of any such release, the scope of the information to be released, and the recipients to whom information will be released.
(2) Any release by the FASC of recommendations or supply chain risk information will be in accordance title 41 U.S.C. 1323 and the provisions of this subpart.
(3) The FASC will not release a recommendation to a non-Federal entity, other than a source named in the recommendation, unless an exclusion or removal order has been issued based on that recommendation, and the named source has been notified.
(4) The FASC (including the ISA, Task Force, and any other FASC constituent bodies) shall comply with applicable limitations on dissemination of supply chain risk information submitted pursuant to this subpart, including but not limited to the following restrictions:
(i) Controlled Unclassified Information, such as Law Enforcement Sensitive, Proprietary, Privileged, or Personally Identifiable Information, may only be disseminated in compliance with the restrictions applicable to the information and in accordance with the FASC's processes and procedures for disseminating controlled unclassified information as required by this part.
(ii) Classified Information may only be disseminated consistent with the restrictions applicable to the information and in accordance with the FASC's processes and procedures for disseminating classified information as required by this part.
(a)
(1) Upon the referral of the FASC or any member of the FASC;
(2) Upon the request, in writing, of the head of an executive agency or a designee, accompanied by a submission of relevant information; or
(3) Based on information submitted to the FASC by any Federal or non-Federal entity that the FASC deems, in its discretion, to be credible.
(b)
(1) Functionality and features of the covered article, including the covered article's or source's access to data and information system privileges;
(2) The user environment in which the covered article is used or installed;
(3) Security, authenticity, and integrity of covered articles and associated supply and compilation chains, including for embedded, integrated, and bundled software;
(4) The ability of the source to produce and deliver covered articles as expected;
(5) Ownership of, control of, or influence over the source or covered article(s) by a foreign government or parties owned or controlled by a foreign government, or other ties between the source and a foreign government, which may include the following considerations:
(i) Whether a Federal agency has identified the country as a foreign adversary or country of special concern;
(ii) Whether the source or its component suppliers have headquarters, research, development, manufacturing, testing, packaging, distribution, or service facilities or other operations in a foreign country, including a country of special concern or a foreign adversary;
(iii) Personal and professional ties between the source—including its officers, directors or similar officials, employees, consultants, or contractors—and any foreign government; and
(iv) Laws and regulations of any foreign country in which the source has headquarters, research development, manufacturing, testing, packaging, distribution, or service facilities or other operations.
(6) Implications for government missions or assets, national security, homeland security, or critical functions associated with use of the source or covered article;
(7) Potential or existing threats to or vulnerabilities of Federal systems, programs or facilities, including the potential for exploitability;
(8) Capacity of the source or the U.S. Government to mitigate risks;
(9) Credibility of and confidence in available information used for assessment of risk associated with proceeding, with using alternatives, and/or with enacting mitigation efforts;
(10) Any transmission of information or data by a covered article to a country outside of the United States; and
(11) Any other information that would factor into an assessment of supply chain risk, including any impact to agency functions, and other information as the FASC deems appropriate.
(c)
(d)
(1) Reviewing any information the FASC considers appropriate; and
(2) Assessing the reliability of the information considered.
(e)
(a)
(1) Information necessary to positively identify any source or covered article recommended for exclusion or removal;
(2) Information regarding the scope and applicability of the recommended exclusion or removal order, including whether the order should apply to all executive agencies or a subset of executive agencies;
(3) A summary of the supply chain risk assessment reviewed or conducted in support of the recommended exclusion or removal order, including significant conflicting or contrary information, if any;
(4) A summary of the basis for the recommendation, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk;
(5) A description of the actions necessary to implement the recommended exclusion or removal order; and,
(6) Where practicable, in the FASC's sole and unreviewable discretion, a description of the mitigation steps that could be taken by the source that may result in the FASC's rescission of the recommendation.
(b)
(a)
(b)
(1) That a recommendation has been made;
(2) Of the criteria the FASC relied upon and, to the extent consistent with national security and law enforcement interests, the information that forms the basis for the recommendation;
(3) That, within 30 days after receipt of the notice, the source may submit information and argument in opposition to the recommendation;
(4) Of the procedures governing the review and possible issuance of an exclusion or removal order; and
(5) Where practicable, in the FASC's sole and unreviewable discretion, a description of the mitigation steps that could be taken by the source that may result in the FASC rescinding the recommendation.
(c)
(1) The ISA will convey the source's submission to the FASC and any appropriate constituent bodies and to the Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence.
(2) Upon receipt of such information or argument in opposition, the FASC may rescind the recommendation if the FASC, consistent with the sole and unreviewable discretion provided in paragraph (b)(5) of this section:
(i) Determines that the source has undertaken sufficient mitigation to reduce supply chain risk to an acceptable level; or
(ii) Decides that other grounds justify rescission.
(3) In the event that the FASC rescinds its recommendation, the ISA will communicate that decision to the source. The ISA will notify Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence of the rescission, and provide those officials with a summary of the FASC's reasoning.
(d)
(1) Keep confidential and not make available outside of the executive branch, except to the extent required by law, any notice issued to a source under paragraph (a) of this section until an exclusion order or removal order is issued and the source has been notified; and
(2) Keep confidential and not make available outside of the executive branch, except to the extent required by law, any notice issued to a source under paragraph (a) of this section if the FASC rescinds the associated recommendation or the Secretary of Homeland Security, Secretary of Defense, and Director of National Intelligence, as applicable, decide not to issue the recommended order.
(e)
(a)
(b)
(1) The recommendation issued pursuant to 41 U.S.C. 1323(c)(2);
(2) The notice of recommendation issued pursuant to 41 U.S.C. 1323(c)(3);
(3) Any information and argument in opposition to the recommendation submitted by the source pursuant to 41 U.S.C. 1323(c)(3)(C);
(4) The exclusion or removal order issued pursuant to 41 U.S.C. 1323(c)(5), and any information or materials relied upon by the deciding official in issuing the order; and
(5) The notification to the source issued pursuant to 41 U.S.C. 1323(c)(6)(A).
(6)
(d)
(1) The Secretary of Homeland Security may issue removal or exclusion orders applicable to civilian agencies, to the extent not covered by paragraph (d)(2) or (3) of this section.
(2) The Secretary of Defense may issue removal or exclusion orders applicable to the Department of Defense and national security systems other than sensitive compartmented information systems.
(3) The Director of National Intelligence may issue removal or exclusion orders applicable to the Intelligence Community and sensitive compartmented information systems, to the extent not covered by paragraph (d)(2) of this section.
(4) The officials identified in paragraphs (d)(1) through (3) of this section may not delegate the authority to issue exclusion and removal orders to an official below the level one level below the Deputy Secretary or Principal Deputy Director level, except that the Secretary of Defense may delegate authority for removal orders to the Commander of U.S. Cyber Command, who may not re-delegate such authority to an official below the level of the Deputy Commander.
(e)
(1) An exclusion order may require the exclusion of sources or covered articles from any executive agency procurement action, including but not limited to source selection and consent for a contractor to subcontract. To the extent required by the exclusion order, agencies shall exclude the source or covered articles, as applicable, from being supplied by any prime contractor and subcontractor at any tier.
(2) A removal order may require removal of a covered article from an executive agency information system owned and operated by an agency; from an information system operated by a contractor on behalf of an agency; and from other contractor information systems to the extent that the removal order applies to contractor equipment or systems within the scope of “information technology,” as defined in § 201-1.101.
(f)
(1) Shall, upon issuance of an exclusion or removal order pursuant to paragraph (a) of this section:
(i) Notify any source named in the order of the order's issuance, and to the extent consistent with national security and law enforcement interests, of the information that forms the basis for the order;
(ii) Provide classified or unclassified notice of the order to the appropriate congressional committees and leadership;
(iii) Provide the order to the ISA; and
(iv) Notify the Interagency Suspension and Debarment Committee of the order.
(2) May provide a copy of the order to other persons, including through public disclosure, as the official deems appropriate and to the extent consistent with national security and law enforcement interests.
(g)
(h)
(i)
(a)
(1) Comply with exclusion and removal orders issued pursuant to § 201-1.303 and applicable to their agency, as required by 41 U.S.C. 1323(c)(7) and 44 U.S.C. 3554(a)(1)(B); and
(2) Comply with handling and/or dissemination restrictions placed upon the order or its contents by the issuing official.
(b)
(1) May ask to be excepted from some or all of the order's requirements. The agency may ask, for example, that the order not apply to the agency, to specific actions of the agency, or to actions of the agency for a period of time before compliance with the order is practicable.
(2) Shall submit the request in writing and include in it all necessary information for the issuing official to review and evaluate it, including—
(i) Identification of the applicable exclusion order or removal order;
(ii) A description of the exception sought, including, if limited to only a portion of the order, a description of the order provisions from which an exception is sought;
(iii) The name or a description sufficient to identify the covered article or the product or service provided by a source that is subject to the order from which an exception is sought;
(iv) Compelling justification for why an exception should be granted, such as the impact of the order on the agency's ability to fulfill its mission- critical functions, or considerations related to the national interest, including national security reviews, national security investigations, or national security agreements;
(v) Any alternative mitigations to be undertaken to reduce the risks addressed by the exclusion or removal order; and
(vi) Any other information requested by the issuing official.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), are revising the regulations governing the annual Federal Migratory Bird Hunting and Conservation Stamp Contest (also known as the Federal Duck Stamp Contest (Contest)). We are removing the previously specified permanent theme and the mandatory inclusion of an appropriate hunting element within all Contest entries and revising the qualifications of the judging panel to reflect this change beginning with the 2022 Contest.
This rule is effective September 27, 2021.
You can view the 2022 Contest Artist Brochure after October 1, 2021, by one of the following methods:
• Accessing the Duck Stamp Contest & Event Information page at:
• Requesting a copy by contacting the person listed under
Jerome Ford, U.S. Fish and Wildlife Service, Department of the Interior, (202) 208-1050.
On March 16, 1934, Congress passed and President Franklin D. Roosevelt signed the Migratory Bird Hunting Stamp Act, which was later amended to become the Migratory Bird Hunting and Conservation Stamp Act (16 U.S.C. 718-718j, 48 Stat. 452). Popularly known as the Duck Stamp Act, the law requires all waterfowl hunters who have attained the age of 16 to buy an annual stamp. Funds generated from Duck Stamp sales are used to protect waterfowl and wetland habitat that is incorporated into the National Wildlife Refuge System from willing sellers and those interested in obtaining conservation easements.
Over 1.5 million stamps are sold each year, and, as of 2021, Federal Duck Stamps have generated more than $1.1 billion for the conservation of more than 6 million acres of waterfowl habitat in the United States. In addition to waterfowl, numerous other birds, mammals, fish, reptiles, and amphibians benefit from habitat protected by the Duck Stamp revenues, including an estimated one-third of the nation's endangered and threatened species. The healthy wetlands protected by Duck Stamp funding sequester carbon and contribute to addressing the impacts of climate change, including absorbing flood waters and storm surge. These wetlands purify water supplies and provide economic support to local communities as they attract outdoor recreationists from many different backgrounds.
The first Federal Duck Stamp was designed at President Roosevelt's request by Jay N. “Ding” Darling, a nationally known political cartoonist for the
Waterfowl hunters have been the greatest contributors to the program, as they are required to purchase Duck Stamps in order to hunt waterfowl. Many individuals not engaged in hunting also purchase Duck Stamps to contribute to conservation or for the stamp's artistic value.
On May 8, 2020, the Service published a final rule (85 FR 27313) revising the regulations in title 50 of the Code of Federal Regulations (CFR) at part 91 (50 CFR part 91) governing the annual Federal Duck Stamp Contest. The Contest regulations made permanent the theme “celebrating our waterfowl hunting heritage” for all future Contests. The regulations required the inclusion of a waterfowl hunting-related scene or accessory in every entry but did not specify what accessories to include. Requirements for the judging panel specified that all judges would have one or more prerequisite qualifications, which could include the ability to recognize waterfowl hunting accessories. An image of a drake lesser scaup with a lanyard and duck calls was chosen as the winner of the 2020 Contest, and this image appears on the 2021-2022 Federal Duck Stamp.
The 2021 Contest species and regulations, with the permanent theme and mandatory inclusion of waterfowl hunting-related accessories or scenes in all entries, were widely publicized and in effect for the 2021 Contest. The entry period for artwork closed on August 15, 2021. The Service reminded artists that their entries for the 2021 Contest must adhere to the theme, entry qualifications, and judging requirements published in the regulations. Regardless of the effective date of this rule (see
On June 23, 2021, we published a proposed rule (86 FR 32878) to remove the permanent “celebrating our waterfowl hunting heritage” theme, which required the mandatory inclusion of an appropriate hunting-related element in all Contest entries, and accordingly to revise the qualifications for selection as a judge and the scoring criteria for the Contest, beginning with the 2022 Contest. The Service proposed the changes to the regulations to allow artists more freedom of expression when designing their Contest entries.
We accepted public comments on our June 23, 2021, proposed rule for 30 days, ending July 23, 2021, and we invited comments on the proposed changes from artists, stamp collectors,
Overall, more than 80 percent of respondents were in favor of the proposed rule. All organizations expressed their support of removing the mandatory inclusion of hunting accessories. The majority of comments in favor of removing the theme expressed their opinion that a broader appeal for the stamp will allow for marketing to all audiences interested in conserving habitat. A focus on the common desire for habitat conservation, without alienating and dividing different user groups was recommended as the best way to increase sales and program support.
All of the self-identified Duck Stamp artists indicated they were in favor of removing the permanent theme and mandatory inclusion of a waterfowl hunting accessory or theme. Artists reported that the permanent theme stifled their creativity, that the mandatory inclusion of a hunting accessory was difficult from a design and composition perspective, that the requirement limited the choice of eligible subjects to hunted waterfowl species, that the mandatory accessory inclusion detracts from the natural beauty of the waterfowl species itself, and that the requirement put new, young, and nonhunting artists at a severe disadvantage for successfully competing in the Contest. Artists and others commenting on the artwork itself pointed to the decrease in number of entries and a decrease in quality of the 2018 and 2020 entries, as indicators that artists were not happy with the mandatory inclusion.
Twenty-seven percent of those wishing to see the permanent theme removed pointed out that traditionally, the Duck Stamp Contest has not had a mandate for the inclusion of a mandatory hunting theme or accessory. It was also pointed out that only three entries prior to 2018 successfully included a hunting accessory due to the artist's choice.
Of the respondents against the removal of the theme, many seemed to misunderstand the intent of the rule change or how it related to previous Contest regulations. Two-thirds of those wanting the theme to remain expressed the mistaken impression that the theme and a hunting accessory were traditional elements in the Contest regulations. The permanent theme and the mandatory hunting accessory inclusion were only instituted in the 2020 Contest after a temporary inclusion in the 2018 Contest. The majority of comments that expressed disapproval in removing the mandatory hunting element expressed that the Service was trying to change the tradition of the artwork or rewrite 88 years of history and support for the Duck Stamp program by the waterfowl hunting community. The Service does not intend to change the formal name of the Duck Stamp or otherwise diminish the contributions to conservation by the waterfowl hunting community. Instead, we prefer to find other ways to celebrate our waterfowl hunting community.
Thirty-six percent of self-identified waterfowl hunters were also in favor of removing the permanent theme. Only one person who indicated they were in favor of keeping the permanent theme self-identified as a nonhunter.
Several commenters simply expressed disapproval or support for the proposed revised Contest rules. However, the majority had specific comments, which are presented below under headings that identify similar subjects. Several commentators offered suggestions that were outside the scope of this rule; these are not addressed at this time but may be further investigated.
(1)
Those who responded in favor of removing the permanent theme stated that they purchased stamps and included self-identified hunters, nonhunters, bird watchers, users of and volunteers at National Wildlife Refuges, general conservationists or naturalists, land managers, photographers, and stamp and art collectors. Nonconsumptive users expressed the desire to also feel recognized and appreciated for their conservation contributions as they were voluntary contributors and were not legally bound to purchase a Duck Stamp for hunting. Many commented that they were aware and thankful for the contributions to conservation that hunters have made but felt that the permanent theme was not necessary because the hunting community was acknowledged in other ways. Recognizing the decrease in the number of waterfowl hunters and the increase in the number of nonconsumptive users who benefit from habitat conservation led to several comments stating the nonhunting community had the responsibility to take on a larger financial contribution to the conservation of wildlife habitat within the National Wildlife Refuge System. Comments from several respondents recognized that habitat conservation provides many benefits of which hunting is just one and that it was the responsibility of all to support conservation. Several comments asked hunters to recognize the advocacy of all who worked to conserve habitat. Several commented that the permanent theme reinforced the idea that the Duck Stamp's only purpose was as a hunting stamp, rather than a widely available mechanism to raise funds for habitat conservation within the National Wildlife Refuge System.
(2)
Of the commenters opposed to removing the mandatory inclusion of a hunting element in the design of the stamp, one stated the need for a clear and unambiguous illustrative connection between hunters and wildlife resource conservation. Another stated that the art must show a tie to hunting or it becomes just another wildlife art contest. Several commenters felt that removal of the mandatory hunting element would go against the traditional artwork of the Duck Stamp or would lead to the same stale images.
Several commenters felt the mandatory inclusion greatly limited artistic creativity. Artists are already limited to producing a design that has a live portrayal of an eligible species as the dominant and central focus of their entry. The entry size requirements and the subsequent reduction of the chosen entry to the size of a stamp is seen as a limit to the choice of an appropriate element that could be incorporated. Several commenters wanted a better description of what was acceptable as a “hunting element” and thought past entries in the 2018 and 2020 Contests incorporated inappropriate elements, which created a bad image of hunters instead of celebrating their conservation ethic.
Several commenters felt that the overall design should promote wildlife and were afraid that mandatory inclusions made viewers lose sight of the beauty of the depicted species itself. One respondent commented that the inclusion of hunting elements limits the eligible species list to those only with open seasons and favored the most popularly harvested species.
Because not all artists who enter the Contest are hunters, many felt they were at an unfair disadvantage in composing their entry and gathering reference materials. One commenter also noted that any hunting element or scene would need to be appropriate for the depicted season and plumage of waterfowl so that no implicit game violations would be illustrated. The mandatory inclusion of a hunting element was seen to discourage young and new artists interested in entering the Contest but who are already overwhelmed by the restrictive rules and competition.
The Service believes the annual Contest functions to promote wildlife artists, inform different audiences about the many contributions to conservation, diversify our audience and stakeholders in habitat conservation, and promote the tradition and heritage of the Duck Stamp. The Service feels the Contest should be as inclusive as possible to achieve these goals.
(3)
Those in favor of the removing the permanent hunting theme and the mandatory hunting element overwhelmingly stated that this was a precursor to increasing sales and expanding support for the Duck Stamp as a conservation tool. They expressed the opinion that mandatory inclusion of hunting elements in the artwork was a divisive and alienating barrier which perpetuated the perception of exclusivity of Duck Stamp purchasers. Several individual comments indicated that stamps that are artistically pleasing and concentrate on the wildlife species itself are the ones most sought after and are what attracts new audiences to the Duck Stamp.
Several respondents offered other specific changes to the Duck Stamp that they felt would make them more accepted among different audiences. Several specific marketing tactics were also suggested.
While the Service appreciates the comments on specific marketing tactics for the Duck Stamp, they are beyond the scope of this rule and are not addressed here.
(4)
(5)
The Service made no changes to the final rule in response to the comments we received on the proposed rule. As we proposed on June 23, 2021, at 86 FR 32878, this rule removes the permanent theme of “celebrating our waterfowl hunting heritage” and the mandatory inclusion of a waterfowl hunting-related scene or accessory in Contest entries and accordingly revises the qualifications for selection as a judge and the scoring criteria for the Contest, beginning with the 2022 Contest.
Accordingly, this rule sets forth amended regulations for:
• The Contest restrictions on subject matter for entries at 50 CFR 91.14.
• Judge qualifications at 50 CFR 91.21(b).
• Scoring criteria at 50 CFR 91.23.
These regulatory amendments allow artists more freedom of expression when designing their Contest entries and better engage the nonhunting audience in understanding that Duck Stamps are a vital tool available for all to contribute to habitat conservation. The Service acknowledges that waterfowl hunters remain the primary customers of Duck Stamps, as these hunters must carry an annual signed stamp as part of their licensing requirements, and rather than mandating a permanent theme for the Contest and the inclusion of a hunting-related accessory in Contest entries, we will develop other methods to promote the wildlife and habitat conservation contributions by waterfowl hunters.
For this final rule, we affirm the following required determinations provided in our June 23, 2021, proposed rule (86 FR 32878):
• National Environmental Policy Act (42 U.S.C. 4321
• Endangered Species Act (16 U.S.C. 1531
• Regulatory Flexibility Act (5 U.S.C. 601
• Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2));
• Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• Unfunded Mandates Reform Act (2 U.S.C. 1531
• Executive Orders 12630, 12866, 12988, 13132, 13175, 13211, and 13563.
Hunting, Wildlife.
Accordingly, we amend part 91, subchapter G of chapter I, title 50 of the Code of Federal Regulations, as follows:
5 U.S.C. 301; 16 U.S.C. 718j; 31 U.S.C. 9701.
A live portrayal of any bird(s) of the five or fewer identified eligible waterfowl species must be the dominant feature of the design. The design may depict more than one of the eligible species. The judges' overall mandate is to select the best design that will make an interesting, useful, and attractive duck stamp that will be accepted and prized by hunters, stamp collectors, conservationists, and others. The design must be the contestant's original hand-drawn creation. The entry design may not be copied or duplicated from previously published art, including photographs, or from images in any format published on the internet. Photographs, computer-generated art, or art produced from a computer printer or other computer/mechanical output device (airbrush method excepted) are not eligible to be entered into the contest and will be disqualified. An entry submitted in a prior contest that was not selected for a Federal or State stamp design may be submitted in the current contest if the entry meets the criteria set forth in this section.
(b)
Entries will be judged on the basis of anatomical accuracy, artistic composition, and suitability for reduction in the production of a stamp.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Announcement of a valid specified fishing agreement.
NMFS announces a valid specified fishing agreement that allocates up to 1,500 metric tons (t) of the 2021 bigeye tuna limit for the Commonwealth of the Northern Mariana Islands (CNMI) to U.S. longline fishing vessels. The agreement supports the long-term sustainability of fishery resources of the U.S. Pacific Islands, and fisheries development in the CNMI.
The specified fishing agreement was valid as of July 15, 2021. The start
The Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP) describes specified fishing agreements and is available from the Western Pacific Fishery Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel. 808-522-8220, fax 808-522-8226, or
NMFS prepared environmental analyses that describe the potential impacts on the human environment that would result from the action. The analyses, identified by NOAA-NMFS-2020-0010, are available from
Lynn Rassel, NMFS PIRO Sustainable Fisheries, 808-725-5184.
In a final rule published on January 12, 2021, NMFS specified a 2021 limit of 2,000 t of longline-caught bigeye tuna for each of the U.S. Pacific Island territories of American Samoa, Guam, and the CNMI (86 FR 2297). NMFS allows each territory to allocate up to 1,500 t of the 2,000 t limit to U.S. longline fishing vessels identified in a valid specified fishing agreement, but the total allocation among all territories may not exceed 3,000 t.
On June 25, 2021, NMFS received from the Council a specified fishing agreement between the CNMI and the Hawaii Longline Association. The Council's Executive Director advised that the agreement is consistent with the FEP and its implementing regulations. On July 15, 2021, NMFS reviewed the agreement and determined that it is consistent with the FEP, implementing regulations, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable laws.
In accordance with 50 CFR 300.224(d) and 50 CFR 665.819(c)(9), vessels in the agreement may retain and land bigeye tuna in the western and central Pacific Ocean under the CNMI attribution specified in the fishing agreement. On August 30, 2021, NMFS began attributing bigeye tuna caught by vessels in the agreement to the CNMI. If NMFS determines that the fishery will reach the 1,500 t allocation specified in the CNMI agreement, we will restrict the retention of bigeye tuna caught by vessels in the agreement, unless the vessels are included in a subsequent specified fishing agreement with another U.S. territory.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of closure.
NMFS is opening directed fishing for groundfish, other than pollock, by non-Rockfish Program catcher vessels using trawl gear in the Western and Central Regulatory Areas of the Gulf of Alaska (GOA). This action is necessary to fully use the 2021 groundfish total allowable catch available for non-Rockfish Program catcher vessels directed fishing for groundfish, other than pollock, using trawl gear in the Western and Central Regulatory Areas of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), August 24, 2021, through 2400 hours, A.l.t., December 31, 2021. Comments must be received at the following address no later than 4:30 p.m., A.l.t., September 7, 2021.
You may submit comments on this document, identified by NOAA-NMFS-2020-0140, by any of the following methods:
•
•
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
NMFS prohibited directed fishing for groundfish, other than pollock, by non-Rockfish Program catcher vessels using trawl gear in the Western and Central Regulatory Areas of the GOA, effective 1200 hours, A.l.t., March 26, 2021 (86 FR 16677, March 31, 2021) under § 679.21(i)(8)(ii).
On August 20, 2021, NMFS published an inseason adjustment (86 FR 46792, August 20, 2021) that reapportioned 1,350 Chinook salmon prohibited species catch limit to the non-Rockfish Program catcher vessel sector participating in the directed fishery for groundfish, other than pollock, in the Western and Central Regulatory Areas of the GOA that is available from August 18, 2021 until December 31, 2021 (§ 679.21(h)(5)(iii)). Therefore, in accordance with § 679.25(a)(1)(i)), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2021 groundfish total allowable catch available for non-Rockfish Program catcher vessels directed fishing for groundfish, other than pollock, using trawl gear in the Western and Central Regulatory Areas of the GOA, NMFS is terminating the previous closure and is opening directed fishing for non-Rockfish Program catcher vessels directed fishing for groundfish, other than pollock, using
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay opening directed fishing for groundfish, other than pollock, by non-Rockfish Program catcher vessels using trawl gear in the Western and Central Regulatory Areas of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 20, 2021.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the California Date Administrative Committee to increase the assessment rate for the 2020-21 and subsequent crop years. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by September 10, 2021.
Interested persons are invited to submit comments concerning this proposed rule. Comments must be submitted via the internet at:
Barry Broadbent, Senior Marketing Specialist, Northwest Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724, or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, or Email:
This action, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 987, as amended (7 CFR part 987), regulating the handling of domestic dates produced or packed in Riverside County, California. Part 987, (referred to as the “Order”), is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The California Date Administrative Committee (Committee) locally administers the Order and is comprised of producers and producer-handlers operating within the area of production.
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866 and 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
This proposed rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. AMS has determined that this proposed rule is unlikely to have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, California date handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate would be applicable to all assessable dates for the 2020-21 crop year, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act (7 U.S.C. 608(15)(A)), any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
The Order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. Members are familiar with the Committee's needs and costs of goods and services in their local area, and they can formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
This proposed rule would increase the assessment rate from $0.15 per hundredweight, the rate that was established for the 2018-19 and subsequent crop years, to $0.20 per hundredweight of dates handled for the 2020-21 and subsequent crop years. The Committee met on June 25, 2020, and unanimously recommended increasing the assessment rate to fund necessary administrative expenses and maintain a sufficient operating reserve. The rate increase should provide sufficient funds to cover most of the Committee's 2020-21 crop year budgeted expenses, with the balance coming from other revenue sources and reserve funds.
The Committee estimates the 2020-21 domestic date crop to be 32,000,000 pounds (320,000 hundredweight), which would generate $64,000 in assessment income at the recommended $0.20 per hundredweight assessment rate. The Committee expects other income of approximately $5,000. Total income of $69,000, combined with $6,250 from the financial reserve, should provide enough funds to cover 2020-21 crop year budgeted expenditures. Reserve funds remaining at the end of the 2020-21 crop year are expected to be $28,750.
The Committee's budget for the 2020-21 crop year is estimated to be $75,250. Committee's expenses include $47,000 for management, $19,250 for office administration, and $9,000 for the financial audit. In comparison, the previous crop year's total budget was $74,200, and the administrative expenses were $43,000, $21,200, and $10,000, respectively.
The assessment rate recommended by the Committee was derived by considering anticipated expenses, the expected volume of dates handled, and the amount of funds available in the operating reserve. Income derived from handler assessments of $64,000 (320,000 hundredweight assessed at the proposed rate of $0.20) should be adequate to cover most budgeted expenses of $75,250, with the balance covered from $5,000 in other income and $6,250 from reserve funds. After expending $6,250, the ending 2020-21 crop year balance in the financial reserve is expected to be $28,750, which would be less than the average of the annual expenses of the preceding five years, as mandated by § 987.72(d).
The assessment rate proposed in this rule would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. Dates and times of Committee meetings are available from the Committee or USDA. Meetings are public and held virtually or in a hybrid style with participants having a choice whether to attend in person or virtually. All interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's budget for subsequent crop years would be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 70 date producers in the production area and 11 date handlers subject to regulation under the Order. The Small Business Administration defines small agricultural producers as those having annual receipts of less than $1,000,000, and small agricultural service firms as those whose annual receipts are less than $30,000,000. (13 CFR 121.201)
According to the National Agricultural Statistics Service (NASS), data for the most-recently completed crop year (2019) shows that producer price for fresh market California dates was $4,130 per ton. With the estimated 16,000-ton crop, the total farm gate value for California date producers was approximately $66,080,000 (16,000 times $4,130). Therefore, the average fresh market date revenue for the 70 producers within the production area would be about $944,000 ($66,080,000 divided by 70). Thus, assuming a normal bell-curve distribution of receipts among producers, AMS estimates the majority of producers would qualify as small businesses under the SBA definition.
Furthermore, USDA Market News reported an average terminal market price of $50.88 per 11-pound carton for the 2019-20 crop year. With approximately 32,000,000 pounds handled, the industry would have shipped an estimated 2,909,091 11-pound cartons (32,000,000 divided by 11) of packaged dates for a total value of $148,014,550 (2,909,091 times $50.88). With 11 date handlers within the production area, the average revenue per handler is estimated to be $13,455,868 for the 2019-20 crop year ($148,014,550 divided by 11). Thus, most California date handlers would be considered small businesses under the SBA definition.
This proposed rule would increase the assessment rate collected from handlers for the 2020-21 and subsequent crop years from $0.15 to $0.20 per hundredweight of dates handled. The Committee unanimously recommended 2020-21 crop year expenditures of $75,250 and an assessment rate of $0.20 per hundredweight of dates, which is $0.05 higher than the rate currently in effect. The quantity of assessable dates for the 2020-21 crop year is estimated to be 32,000,000 pounds (320,000 hundredweight). The proposed $0.20 rate should provide $64,000 in assessment income. Income derived from handlers' assessments, plus $5,000 of other income and $6,250 from the Committee's authorized reserve, should be adequate to cover the Committee's budgeted expenses for the 2020-21 crop year.
The total budget recommended by the Committee for the 2020-21 crop year is $75,250, compared to $74,200 for the 2019-20 crop year. The Committee recommended the higher assessment rate to fully fund ongoing program expenses without depleting its operating reserve.
The income generated from the proposed higher assessment rate, combined with other income and a small amount from the financial reserve, should be sufficient to cover anticipated 2020-21 expenses and to maintain a financial reserve within the limit specified by the Order.
Section 987.72(d) states that the Committee may maintain an operating monetary reserve not to exceed the average of one year's expenses incurred during the most recent five preceding crop years, except that an established reserve need not be reduced to conform to any recomputed average. The Committee estimated that funds in its reserve would be approximately $35,000 at the beginning of the 2020-21 crop year. It expects to utilize $6,250 of the reserve during the year, leaving a reserve of approximately $28,750 to start the 2021-22 crop year, which would be within the limit specified in the Order.
The Committee reviewed and unanimously recommended 2020-21 crop year expenditures of $75,250. The Committee considered several factors before making its recommendation, including the size of the anticipated 2020-21 crop, the Committee's estimated 2020-21 reserve carry-in,
A review of historical and preliminary information pertaining to the upcoming crop year indicates that the producer price for the 2020-21 crop year is estimated to be $201.50 per hundredweight of dates. Utilizing that price, the estimated crop size, and the proposed assessment rate of $0.20 per hundredweight, the estimated assessment revenue for the 2020-21 crop year as a percentage of total producer revenue will be approximately 0.1 percent ($0.20 per hundredweight divided by $201.50 per hundredweight).
This proposed action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the operation of the Order. In addition, the Committee's and the Subcommittee's meetings were widely publicized throughout the California date industry. All interested persons were invited to attend the meetings and encouraged to participate in Committee deliberations on all issues. The June 25, 2020 Committee meeting was a virtually held public meeting and all entities, both large and small, were able to express views on this issue. Interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this action on small businesses.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178 Vegetable and Specialty Crops. No changes in these requirements would be necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large California date handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
Dates, Marketing agreements, Reporting and recordkeeping requirements.
For reasons set forth in the preamble, 7 CFR part 987 is proposed to be amended as follows:
7 U.S.C. 601-674.
On and after October 1, 2020, an assessment rate of $0.20 per hundredweight is established for dates produced or packed in Riverside County, California.
Farm Credit Administration.
Proposed rule.
The Farm Credit Administration (FCA, we, or our) is seeking comments on this proposed rule that would revise our regulatory capital requirements for Farm Credit System (FCS or System) institutions to define and establish risk-weightings for High Volatility Commercial Real Estate (HVCRE) exposures.
Please send us your comments on or before November 24, 2021.
For accuracy and efficiency reasons, please submit comments by email or through FCA's website. We do not accept comments submitted by facsimiles (fax), as faxes are difficult for us to process and achieve compliance with section 508 of the Rehabilitation Act of 1973. Please do not submit your comment multiple times via different methods. You may submit comments by any of the following methods:
•
•
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You may review copies of comments we receive on our website at
We will show your comments as submitted, including any supporting data provided, but for technical reasons we may omit items such as logos and special characters. Identifying information that you provide, such as phone numbers and addresses, will be publicly available. However, we will attempt to remove email addresses to help reduce internet spam. You may also review comments at our office in McLean, Virginia. Please call us at (703) 883-4056 or email us at
The FCA's objectives in proposing this rule are to:
• Update capital requirements to reflect the increased risks that exposures to certain acquisition, development or construction loans pose to System institutions; and
• Ensure that the System's capital requirements are comparable to the Basel III framework and the standardized approach the Federal banking regulatory agencies have adopted, with deviations as appropriate to accommodate the different operational and credit considerations of the System.
In October 2013 and April 2014, the Federal banking regulatory agencies (FBRAs)
On September 4, 2014, FCA published in the
Included in the provisions we proposed to adopt was a 150 percent risk-weight for HVCRE exposures. Our proposed definition of HVCRE was very similar to the definition the FBRAs had adopted at the time. System commenters expressed concern about parts of the proposed HVCRE definition and asked us not to adopt the definition. We did not adopt the HVCRE provisions when we adopted our final capital rules because we wanted to further consider and analyze HVCRE.
Beginning in 2017, the FBRAs issued several proposed rules on HVCRE exposures, in an effort to address concerns with the original definition.
Many of the provisions in the FBRAs' final rule address the concerns commenters raised in response to the FCA's 2014 proposed rule. Accordingly, to ensure that System institutions continue to hold enough regulatory capital to fulfill their mission as a Government-sponsored enterprise, we propose provisions that are, in general, similar to the FBRA provisions. However, we propose differences in two general areas. First, in their rule the FBRAs clarified the interpretation of certain terms generally to be consistent with their usage in other FBRA regulations or Call Report instructions; while we do not propose different interpretations of these terms, we do not propose to refer to these FBRA references, as we do not believe that is appropriate in our rules. Second, we propose some differences where appropriate to accommodate the different operational and credit considerations of the System, while continuing to maintain appropriate safety and soundness.
Because of the increased risk in exposures that fall within the definition of HVCRE exposures, we propose, consistent with the FBRAs, to assign a 150 percent risk-weight to those exposures, rather than the 100 percent risk-weight generally assigned to commercial real estate and other corporate exposures under FCA regulation § 628.32(f)(1). As discussed below, our proposed rule is similar to the FBRAs' rule in most respects. In general, the same loan to the same borrower—whether it is made by a commercial bank or a System institution—carries the same risk and should be assigned the same risk-weight. The proposed definition of HVCRE exposure is intended to capture only those exposures that have increased risk characteristics in the acquisition, development, or construction of real property.
As with the risk-weighting provisions of our capital rules generally, language in the proposed definition of HVCRE exposure that refers to the financing of certain types of property or projects does not itself provide authority for an institution to engage in that financing,
As the FBRAs did, we propose to define an HVCRE exposure as “a credit facility secured by land or improved real property” that meets three criteria (and that does not meet any of the definition's exclusions, which are discussed below).
We propose to adopt the same meaning of “a credit facility secured by land or improved real property” as the FBRAs have adopted. Therefore, for example, if an institution makes a loan to construct and equip a building, and the loan is secured by both the real estate and the equipment, the institution must estimate the value of the building, upon completion, and of the equipment. If the value of the building is greater than 50 percent of the principal amount of the loan at origination, the loan would be a “loan secured by real estate,” and it would therefore be a “credit facility secured by land or improved real property.”
Under our proposal, a “credit facility secured by land or improved real property” would not be classified as an HVCRE exposure unless it met the following three criteria. If such a credit facility did not meet all three criteria, it would not be an HVCRE exposure. First, the credit facility must primarily finance or refinance the acquisition, development, or construction of real property. Second, the purpose of the credit facility must be to provide financing to acquire, develop, or improve such real property into income-producing property. Finally, the repayment of the credit facility must depend upon the future income or sales proceeds from, or refinancing of, such real property.
The first criterion is that the credit facility must primarily finance or refinance the acquisition, development, or construction of real property. This criterion is satisfied if more than 50 percent of the proposed use of the loan funds is for the acquisition, development, or construction of real property. The criterion is not satisfied if 50 percent or less of the proposed use of the loan funds is for the acquisition, development, or construction of real property.
The second criterion is that the credit facility has the purpose of providing financing to acquire, develop, or improve the real property into income-producing property.
The third criterion is that the credit facility is dependent for repayment upon future income or sales proceeds from, or refinancing of, the real property. This criterion narrows the scope of the definition of HVCRE exposure from the definition we proposed in 2014. The definition we proposed in 2014 would have included within the scope of HVCRE exposures credit facilities for which repayment would be from the ongoing business of the borrower, as well as credit facilities that were dependent for repayment upon future income or sales proceeds.
The Farm Credit Council and several System banks and association commenters expressed concern with the breadth of this definition from the 2014 proposal.
Under this proposal, the exposures described in the following paragraphs would be excluded from the definition of HVCRE exposure:
Under this proposal, as in the FBRA rule, an HVCRE exposure would not include a credit facility financing the acquisition, development, or construction of properties that are one- to four-family residential properties, provided that the dwelling (including attached components such as garages, porches, and decks) represents at least 50 percent of the total appraised value of the collateral secured by the first or subsequent lien.
Manufactured homes permanently affixed to the underlying property, when deemed to be real property under state law, would qualify for this exclusion, as would construction loans secured by single family dwelling units, duplex units, and townhouses. Condominium and cooperative construction loans would qualify for this exclusion, even if the loan is financing the construction of a building with five or more dwelling units, as long as the repayment of the loan comes from the sale of individual condominium dwelling units or individual cooperative housing units. This exclusion would apply to all credit facilities that fall within its scope, whether rural home financing under § 613.3030 or one- to four-family residential property financing under § 613.3000(b). Similar to the reduced risk-weight assigned to residential mortgage exposures under § 628.32(g)(1), a credit facility would qualify for this exclusion only if the property securing the credit facility exhibits characteristics of residential property rather than agricultural property including, but not limited to, the requirement that the dwelling (including attached components such as garages, porches, and decks) represents at least 50 percent of the total appraised value of the collateral secured by the first or subsequent lien. If examiners determined that the property was not residential in nature, the credit facility would not qualify for this exclusion.
Loans for multifamily residential property construction (such as apartment buildings where loan repayment is dependent upon
Loans used solely to acquire undeveloped land would not qualify for this exclusion; the credit facility would also have to include financing for the construction of one- to four-family residential structures. Moreover, credit facilities that do not finance the construction of one- to four-family residential structures (as defined above), but instead solely finance improvements such as the laying of sewers, water pipes, and similar improvements to land, would not qualify for this exclusion. A credit facility that combines the financing of land development and the construction of one- to four-family structures would qualify for this exclusion.
We propose to exclude from the HVCRE definition credit facilities financing “agricultural land,” as defined in FCA regulation § 619.9025, or real estate used as an integral part of an aquatic operation. Section 619.9025 defines “agricultural land” as “land improved or unimproved which is devoted to or available for the production of crops and other products such as but not limited to fruits and timber or for the raising of livestock.”
This exclusion would apply only to financing for the agricultural and aquatic needs of bona fide farmers, ranchers, and producers and harvesters of aquatic products under § 613.3000 of FCA regulations. It would not apply to loans for farm property construction and land development purposes.
With one exception, we intend our proposed agricultural land exclusion to have the same scope as the agricultural land exclusion of the FBRAs. The FBRAs' definition of agricultural land has the same meaning as “farmland” in their Call Report forms and instructions.
As the FBRAs did in their final rule, loans for land development purposes and farm property construction would not be eligible in this proposed rule for the agricultural land exclusion from the HVCRE exposure definition. Loans made for land development purposes would include loans made to finance property improvements, such as laying sewers or water pipes preparatory to erecting new structures. Loans made for farm property construction would include loans made to finance the on-site construction of industrial, commercial, residential, or farm buildings. For the purposes of this exclusion, “construction” includes not only construction of new structures, but also additions or alterations to existing structures and the demolition of existing structures to make way for new structures.
As in the FBRA rule, we propose to exclude from the definition of HVCRE exposure credit facilities that finance the acquisition or refinance of existing income-producing real property secured by a mortgage on such property, so long as the cash flow generated by the real property covers the debt service and expenses of the property in accordance with the System institution's underwriting criteria for permanent loans. We also propose to exclude credit facilities financing improvements to existing income-producing real property secured by a mortgage on such property. Examiners may review the reasonableness of a System institution's underwriting criteria for permanent loans through the regular examination process to ensure the real estate lending policies are consistent with safe and sound banking practices.
We believe this income-producing property exclusion would address certain concerns expressed in comment letters from FCA's 2014 proposed HVCRE definition regarding agribusiness and rural utility loans. System institutions commented they did not believe the definition of HVCRE was intended to include agribusiness or rural project financing transactions to build processing and marketing facilities or rural infrastructure. Under this proposal, these types of loans could qualify for the income-producing property exclusion if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property in accordance with the System institution's underwriting criteria for permanent loans.
Agribusiness and rural project loans that are not secured by existing income-producing real property would not fall under this exclusion. Such loans often pose a greater credit risk than permanent loans. We believe it is appropriate to classify these loans as HVCRE exposures and impose a 150 percent risk-weight given their increased risk compared to other commercial real estate exposures (unless the loan satisfies one of the other exclusions). However, as discussed in section 5—Reclassification as a Non-HVCRE Exposure section below, a System institution would be allowed to reclassify these HVCRE exposures as a non-HVCRE exposure if two conditions are met:
• Substantial completion of the development or construction on the real property has occurred; and
• the cash flow generated by the property covers the debt service and expenses on the property in accordance with the System institution's loan underwriting standards for permanent financings.
As in the FBRA rule, we propose to exclude from the definition of HVCRE exposure credit facilities for certain commercial real property projects that are underwritten in a safe and sound manner in accordance with proposed loan-to-value (LTV) limits and where the borrower has contributed a specified amount of capital to the project. A commercial real property project loan generally is used to acquire, develop, construct, improve, or refinance real property, and the primary source of repayment is dependent on the sale of the real property or the revenues from third-party rent or lease payments. Commercial real property project loans do not include ordinary business loans and lines of credit in which real property is taken as collateral. As it relates to the System, we believe this exclusion is most relevant to agribusiness (processing and marketing entities and farm-related businesses) and rural project loans.
In order to qualify for this exclusion, a credit facility that finances a commercial real property project would be required to meet four distinct criteria. First, the LTV ratio would have to be less than or equal to the applicable maximum set forth in proposed Appendix A. Second, the borrower
To qualify for this exclusion from the HVCRE exposure definition, the FBRAs' rule requires that a credit facility be underwritten in a safe and sound manner in accordance with the Supervisory Loan-to-Value Limits contained in the Interagency Guidelines for Real Estate Lending Policies.
The FCA has not adopted these supervisory LTV limits.
Under the proposal, cash, unencumbered readily marketable assets, paid development expenses out-of-pocket, and contributed real property or improvements would count as forms of capital for purposes of the 15 percent capital contribution criterion. A System institution could consider costs incurred by the project and paid by the borrower prior to the advance of funds by the System institution as out-of-pocket development expenses paid by the borrower.
The FBRAs' version of the rule provides that the value of contributed real property means the appraised value of real property contributed by the borrower as determined under the standards prescribed by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (12 U.S.C. 3339) (FIRREA). Because FCA is not named in FIRREA as one of the Federal financial regulatory agencies covered by its real estate appraisal provisions, our proposal does not expressly require that the value must be determined under the FIRREA standards; rather, we propose to require that the value must be determined in accordance with FCA regulations at Subpart F of 12 CFR part 614. FCA's collateral evaluation rules are generally similar, although not identical, to the FIRREA standards, however, and therefore there should be few substantive differences in the approach to valuation.
FCA has long recognized that Congress, through the enactment of FIRREA, expressed a strong belief that all financial transactions involving real property collateral should be supported by adequate and accurate collateral evaluations. Congress also expressed the belief that such collateral evaluations should be based on standards and guidelines that are consistently applied by the financial and appraisal industries. We believe that following the collateral evaluation requirements of FIRREA and the overarching beliefs of Congress is an essential element of the safe and sound lending activities covered by the System. FCA's collateral evaluation regulations, at 12 CFR part 614, subpart F, are generally similar, although not identical, to the FIRREA appraisal requirements.
The value of the real property that could count toward the 15 percent contributed capital requirement would be reduced by the aggregate amount of any liens on the real property securing the HVCRE exposure.
To ensure that tangible equity is invested in the project, funds borrowed from a third party (such as another lender, an owner or parent organization, or a related party) could count toward the capital contribution as long as the borrowed funds are not derived from, related to, or encumber any collateral that has been contributed to the project. Additionally, the recognition of any contribution of funds to a project would have to be in conformance with safe and sound lending practices and in accordance with the System institution's underwriting criteria and internal policies.
In addition, contributed property or improvements would have to be directly related to the project to be eligible to count towards the capital contribution. Real estate not developed as part of the project would not be counted toward the capital contribution.
We would interpret the term “unencumbered readily marketable assets” to mean insured deposits, financial instruments, and bullion in which the System institution has a perfected interest. For collateral to be considered “readily marketable” by a System institution, the institution's expectation would be that the financial instrument and bullion would be salable under ordinary circumstances with reasonable promptness at a fair market value determined by quotations based on actual transactions, an auction or similarly available daily bid and ask price market.
Under the proposal, the 15 percent capital contribution would be required to be calculated using the real property's value. An appraised “as completed” value is preferred; however, an “as completed” value appraisal may not always be available, such as in the case of purchasing raw land without plans for development in the near term, which would typically have an “as is” value appraisal. Therefore, we propose to permit the use of an “as is” appraisal, if an “as completed” appraisal is not available, for purposes of the 15 percent capital contribution.
In addition, we would allow the use of a collateral evaluation of the real property instead of an appraisal to determine the value, for purposes of the HVCRE exposure definition, where our appraisal regulations
The FBRAs' regulatory exclusion for Certain Commercial Real Property Projects specifies that an “as completed” value appraisal must be used. This is consistent with the EGRRCPA's statutory definition for the Certain Commercial Real Property Projects exclusion, which included only appraised “as completed” values. As explained by the FBRAs, the EGRRCPA required this appraised “as completed” value for their regulations. In the preamble of their final rule, the FBRAs clarified their definition allows “as is” appraisals for raw land loans and collateral evaluations for loans in amounts under certain specified thresholds in their appraisal regulations.
In this proposal, the 15 percent capital contribution and the appraisal or collateral evaluation would be measured in relation to a “project.” Some credit facilities for the acquisition, development, or construction of real property may have multiple phases as part of a larger construction or development project. In the case of a project with multiple phases, in order for a loan financing a phase to be eligible for the contributed capital exclusion, the phase must have its own appraised value or an appropriate evaluation in order for it to be deemed a separate “project” for the purpose of the 15 percent capital contribution calculation. We expect that each project phase being financed by a credit facility have a proper appraisal or evaluation with an associated “as completed” or “as is” value. Where appropriate and in accordance with the System institution's applicable underwriting standards, a System institution may look at a multiphase project as a complete project rather than as individual phases.
Under the proposal, a System institution would be allowed to reclassify an HVCRE exposure as a non-HVCRE exposure when the substantial completion of the development or construction on the real property has occurred and the cash flow generated by the property covered the debt service and expenses on the property in accordance with the institution's loan underwriting standards for permanent financings. We expect each System institution to have prudent, clear, and measurable underwriting standards, which we may review through the examination process.
In consideration of the changes this rule would require, we propose that only loans made after the effective date of this rule would be subject to the HVCRE risk-weighting requirements. Loans made prior to the rule's effective date could continue to be risk-weighted as if the rule had not been adopted.
After the effective date, when a System institution modifies a loan or if a project is altered in a manner that materially changes the underwriting of the credit facility (such as increases to the loan amount, changes to the size and scope of the project, or removing all or part of the 15 percent minimum capital contribution in a project), the institution must treat the loan as a new exposure and reevaluate the exposure to determine whether or not it is an HVCRE exposure.
FCA Bookletter BL-070 authorizes System institutions to assign a reduced risk-weight (lower than the 100 percent risk-weight generally assigned to commercial real estate exposures under FCA regulation § 628.32(f)(1)) for rural water and wastewater (RWW) facilities that satisfy criteria.
FCA Bookletter BL-053 authorizes System institutions to assign a reduced risk-weight to certain electric cooperative exposures, including for some power plants that are in the construction phase.
Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
Accounting, Agriculture, Banks, Banking, Capital, Government securities, Investments, Rural areas.
For the reasons stated in the preamble, part 628 of chapter VI, title 12 of the Code of Federal Regulations is proposed to be amended as follows:
Secs. 1.5, 1.7, 1.10, 1.11, 1.12, 2.2, 2.3, 2.4, 2.5, 2.12, 3.1, 3.7, 3.11, 3.25, 4.3, 4.3A, 4.9, 4.14B, 4.25, 5.9, 5.17, 8.0, 8.3, 8.4, 8.6, 8.8, 8.10, 8.12 of the Farm Credit Act (12 U.S.C. 2013, 2015, 2018, 2019, 2020, 2073, 2074, 2075, 2076, 2093, 2122, 2128, 2132, 2146, 2154, 2154a, 2160, 2202b, 2211, 2243, 2252, 2279aa, 2279aa-3, 2279aa-4, 2279aa-6, 2279aa-8, 2279aa-10, 2279aa-12); sec. 301(a), Pub. L. 100-233, 101 Stat. 1568, 1608 ((12 U.S.C. 2154 note); sec. 939A, Pub. L. 111-203, 124 Stat. 1326, 1887 (15 U.S.C. 78o-7 note).
(6) A high volatility commercial real estate (HVCRE) exposure;
(1) A credit facility secured by land or improved real property that, prior to being reclassified by the System institution as a non-HVCRE exposure pursuant to paragraph (6) of this definition:
(i) Primarily finances, has financed, or refinances the acquisition, development, or construction of real property;
(ii) Has the purpose of providing financing to acquire, develop, or improve such real property into income producing real property; and
(iii) Is dependent upon future income or sales proceeds from, or refinancing of, such real property for the repayment of such credit facility.
(2) An HVCRE exposure does not include a credit facility financing:
(i) The acquisition, development, or construction of properties that are:
(A) One- to four-family residential properties, provided that the dwelling (including attached components such as garages, porches, and decks) represents at least 50 percent of the total appraised value of the collateral secured by the first or subsequent lien. Credit facilities that do not finance the construction of one- to four-family residential structures, but instead solely finance improvements such as the laying of sewers, water pipes, and similar improvements to land, do not qualify for the one- to four-family residential properties exclusion;
(B) [Reserved]
(C) Agricultural land, as defined in § 619.9025 of this chapter, or real estate used as an integral part of an aquatic operation. This provision applies only to financing for the agricultural and aquatic needs of bona fide farmers, ranchers, and producers and harvesters of aquatic products under § 613.3000 of this chapter. This provision does not apply to loans for farm property construction and land development purposes;
(ii) The acquisition or refinance of existing income-producing real property secured by a mortgage on such property, if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property, in accordance with the System institution's applicable loan underwriting criteria for permanent financings;
(iii) Improvements to existing income producing improved real property secured by a mortgage on such property, if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property, in accordance with the System institution's applicable loan underwriting criteria for permanent financings; or
(iv) Commercial real property projects in which:
(A) The loan-to-value ratio is less than or equal to the applicable loan-to-value limit set forth in Appendix A to this part;
(B) The borrower has contributed capital of at least 15 percent of the real property's appraised, “as completed” value to the project. The use of an “as is” appraisal is allowed in instances where an “as completed” value appraisal is not available. The use of an evaluation of the real property instead of an appraisal to determine the “as completed” appraised value is allowed if § 614.4260(c) of this chapter permits evaluations to be used in lieu of appraisals. The contribution may be in the form of:
(
(
(
(
(C) The borrower contributed the amount of capital required by paragraph (2)(iv)(B) of this definition before the System institution advances funds (other than the advance of a nominal sum made in order to secure the System institution's lien against the real property) under the credit facility, and such minimum amount of capital contributed by the borrower is contractually required to remain in the project until the HVCRE exposure has been reclassified by the System institution as a non-HVCRE exposure under paragraph (6) of this definition.
(3) An HVCRE exposure does not include any loan made prior to the effective date of this rule.
(4) An HVCRE exposure does not include a credit facility reclassified as a non-HVCRE exposure under paragraph (6) of this definition.
(5) Value of contributed real property: For the purposes of this HVCRE exposure definition, the value of any real property contributed by a borrower as a capital contribution is the appraised value of the property as determined under standards prescribed in accordance with FCA regulations at subpart F of part 614 of this chapter, in connection with the extension of the credit facility or loan to such borrower.
(6) Reclassification as a non-HVCRE exposure: For purposes of this HVCRE exposure definition and with respect to a credit facility and a System institution, a System institution may reclassify an HVCRE exposure as a non-HVCRE exposure upon:
(i) The substantial completion of the development or construction of the real property being financed by the credit facility; and
(ii) Cash flow being generated by the real property being sufficient to support the debt service and expenses of the real property, in accordance with the System institution's applicable loan underwriting criteria for permanent financings.
(7) [Reserved].
(j)
(b) * * *
(4) * * *
Table A sets forth the loan-to-value limits specified in paragraph (2)(iv)(A) of the definition of high volatility commercial real estate exposure in § 628.2.
The loan-to-value limits should be applied to the underlying property that collateralizes the loan. For loans that fund multiple phases of the same real estate project (
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Leonardo S.p.a. Model A109E helicopters. This proposed AD was prompted by reports of cracking in the center fuselage frame assembly in the intersection of the lateral pylon and floor spar at station (STA) 1815 on the left- and right-hand sides. This proposed AD would require repetitive inspections of the intersection of the lateral pylon and floor spar at STA 1815 for cracking and, depending on the findings, repair, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference (IBR). The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by October 12, 2021.
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 EASA material that is proposed for IBR in this AD, contact EASA,
You may examine the AD docket at
Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; 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
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 Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0256, dated November 17, 2020 (EASA AD 2020-0256), to correct an unsafe condition for Leonardo S.p.A., formerly Finmeccanica S.p.A., AgustaWestland S.p.A., and Agusta S.p.A., Model A109E helicopters, serial numbers 11001 through 11674 inclusive.
This proposed AD was prompted by reports of cracking in the center fuselage frame assembly in the intersection of the lateral pylon and floor spar at STA 1815 on the left- and right-hand sides. The FAA is proposing this AD to address cracking in the center fuselage frame assembly in the intersection of the lateral pylon and floor spar at STA 1815 on the left- and right-hand sides, which, if not addressed, could affect the structural integrity of the helicopter. See EASA AD 2020-0256 for additional background information.
EASA AD 2020-0256 requires repetitive inspections of STA 1815 for cracking, fluorescent liquid penetrant inspections of any cracking to determine the extent of the cracking, and repair if necessary. For both the left- and right-hand side repair, the actions include removing equipment and furnishings to gain access to the work area; testing the flight control system for correct travel of the flight controls; performing an operational test of the cockpit and passenger doors caution system; installing a new forward cap; installing a new angle, butt strap, and web; installing new cotter pins; and re-installing the removed equipment and furnishings when the repair is complete.
For the left-hand side repair, the actions also include replacing the nut plates with new nut plates, and an operational test of the collective control system and tail rotor control system. For the right-hand side repair, the actions include an operational test of the cyclic control system.
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
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 the unsafe condition described previously is likely to exist or develop on other helicopters of the same type design.
This proposed AD would require accomplishing the actions specified in EASA AD 2020-0256, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD and the MCAI.”
EASA AD 2020-0256 specifies to accomplish corrective actions if “any crack is detected in an affected area” during a required inspection. Figure 1 of the service information referenced in EASA AD 2020-0256 depicts the affected area, but the FWD bulkhead is mislabeled as AFT. This proposed AD includes an exception to clarify the correct location of the FWD bulkhead depicted in Figure 1.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2020-0256 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2020-0256 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 EASA AD 2020-0256 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 not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2020-0256. Service information referenced in EASA AD 2020-0256 for compliance will be available at
The FAA estimates that this AD, if adopted as proposed, would affect 70 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 repairs that would be required based on the results of the proposed inspection. The agency has no way of determining the number of helicopters that might need these repairs:
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.
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) Would not affect intrastate aviation in Alaska, and
(3) Would 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 on this airworthiness directive (AD) by October 12, 2021.
None.
This AD applies to Leonardo S.p.a. Model A109E helicopters, certificated in any
Joint Aircraft Service Component (JASC) Code: 5300, Fuselage Structure.
This AD was prompted by reports of cracking in the center fuselage frame assembly in the intersection of the lateral pylon and floor spar at station (STA) 1815 on the left- and right-hand sides. The FAA is issuing this AD to address cracking in the intersection of the lateral pylon and floor spar at STA 1815 on the left- and right-hand sides, which, if not addressed, could affect the structural integrity of the helicopter.
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, EASA AD 2020-0256.
(1) Where EASA AD 2020-0256 requires compliance in terms of flight hours, this AD requires using hours time-in-service.
(2) Where EASA AD 2020-0256 AD refers to its effective date, this AD requires using the effective date of this AD.
(3) Where Figure 1 of the service information referenced in EASA AD 2020-0256 depicts the AFT bulkhead twice, for clarification, the FWD bulkhead is mislabeled as AFT and depicted on the left side of Figure 1, below 109-0320-96 POST ASSY (REF) and above FWD CAP.
(4) Where the service information referenced in EASA AD 2020-0256 specifies discarding parts, this AD requires removing those parts from service.
(5) Where paragraph (2) of EASA AD 2020-0256 or the service information referenced in EASA AD 2020-0256 specifies to contact the manufacturer for repair information, for this AD: Before further flight, do the repair using a method approved by the Manager, International Validation Branch, FAA; or EASA; or Leonardo S.p.a.'s EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.
(6) This AD does not require the “Remarks” section of EASA AD 2020-0256.
Although the service information referenced in EASA AD 2020-0256 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(1) The Manager, International Validation 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 International Validation Branch, send it to the attention of the person identified in paragraph (k)(2) of this AD. Information may be emailed to:
(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 EASA AD 2020-0256, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(2) For more information about this AD, contact Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary safety zone for certain navigable waters of the Columbia River. This action is necessary to provide for the safety of life on these navigable waters near Knapp, WA, at Columbia River Mile 95.8 from October 1, 2021, through March 15, 2022. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Sector Columbia River or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before September 10, 2021.
You may submit comments identified by docket number USCG-2021-0201 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LCDR Dixon Whitley, Waterways Management Division, Marine Safety Unit Portland, U.S. Coast Guard; telephone 503-240-9319, email
On November 18, 2020, the Discovery Clean Water Alliance notified the Coast Guard that it would begin construction for their Phase 5A Project: Columbia River Outfall and Effluent Pipeline from 12:01 a.m. on October 1, 2021, through 11:59 p.m. on March 15, 2022, to remove and replace existing pipeline. The construction project includes the removal and replacement of an existing navigation marker (3-pile dolphin), installation of a 48″ pipeline in the riverbed outside the navigation channel, and removal of an existing 30″ pipeline from the riverbed. The scope of work may include the need to construct temporary pile-supported work platforms, or dredge, to access shallow water areas. Lighted barges will be used in deeper water. The Captain of the Port Sector Columbia River (COTP) has determined that potential hazards associated with the construction project would be a safety concern for anyone within the designated area of the Columbia River Outfall and Effluent Pipeline construction project.
The purpose of this rulemaking is to ensure the safety of vessels and the
The COTP is proposing to establish a safety zone from October 1, 2021, through March 15, 2022. The safety zone would cover all navigable waters of the Columbia River, surface to bottom, encompassed by a line connecting the following points beginning at the shoreline at 45°43′57.0″ N/122°45′21.0″ W, west to 45°43′58.0″ N/122°45′33.0″ W, south to 45°43′39.0″ N/122°45′35.0″ W, thence east to 45°43′39.0″ N/122°45′21″ W, and along the shoreline back to the beginning point. The duration of the zone is intended to ensure the safety of vessels and these navigable waters while the pipeline construction is underway. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative means any Coast Guard commissioned, warrant, or petty officer who has been authorized by the COTP to act on his behalf, or a Federal, State, and local officer designated by or assisting the Captain of the Port Sector Columbia River in the enforcement of the safety zone. Vessel operators desiring to enter or operate with the safety zone would contact the COTP's on-scene designated representative by calling (503) 209-2468 or the Sector Columbia River Command Center on Channel 16 VHF-FM. Those in the safety zone would comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of the Columbia River during the construction project. Moreover, the Coast Guard would issue a Notice to Mariners about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting 166 days that would prohibit vessel traffic to
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. Comments we post to
Documents mentioned in this NPRM as being available in the docket, and public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1, Revision No. 01.2.
(a)
(b)
(c)
(2) Vessel operators desiring to enter or operate with the safety zone may contact the COTP's on-scene designated representative by calling (503) 209-2468 or the Sector Columbia River Command Center on Channel 16 VHF-FM. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
Agricultural Marketing Service, USDA.
Notice of final action.
This action is being taken under the authority of the Agricultural Marketing Act of 1946, as amended, (AMA). The United States Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) is adding the new criterion, Cotyledon Damage, in the Bean Inspection Handbook pertaining to the class chickpea/garbanzo beans in the U.S. Standards for Beans. Stakeholders in the dry bean processing/handling industry requested AMS to revise the Bean Inspection Handbook to include the criterion for the new damage factor, Cotyledon Damage, in chickpeas/garbanzo beans.
Loren Almond, USDA AMS; Telephone: (816) 702-3925; email:
Under the authority of the AMA (7 U.S.C. 1621-1627), as amended, AMS establishes and maintains a variety of quality and grade standards for agricultural commodities that serve as a fundamental starting point to define commodity quality in the domestic and global marketplace.
Standards developed under the AMA include those for rice, whole dry peas, split peas, feed peas, lentils, and beans. United States standards for whole dry peas, split peas, feed peas, lentils and beans no longer appear in the Code of Federal Regulations but are now maintained by USDA-AMS-Federal Grain Inspection Service (AMS-FGIS). The U.S. Standards for beans are voluntary and widely used in private contracts, government procurement, marketing communication, and for some commodities, consumer information.
Bean standards facilitate bean marketing and define U.S. bean quality in the domestic and global marketplace. These standards define commonly used industry terms; contain basic principles governing the application of standards, such as the type of sample used for a particular quality analysis; provide the basis of determination; and specify grades and grade requirements. Official procedures for determining grading factors are provided in the Bean Inspection Handbook. Together, grading standards and testing procedures allow buyers and sellers to communicate quality requirements, compare bean quality using equivalent forms of measurement, and assist in price discovery.
AMS engages in outreach with stakeholders to ensure commodity standards maintain relevance to the modern market. Bean industry stakeholders include the USA Dry Pea and Lentil Council (USADPLC).
The United States Standards for Beans and official inspection procedures for beans in the Bean Inspection Handbook are available on the AMS public website. The United States Standards for Beans were last revised in 2017. Currently, under bean inspection criteria, white chalky or wafer-like spots are not considered damage in chickpea/garbanzo beans and there is not a definition or factor for Cotyledon Damage in Chickpea/Garbanzo Beans. Stakeholders stated that such spots in chickpea/garbanzo beans negatively affect bean flavor and specifically asked AMS to revise bean damage factors to include the addition of a new criterion, Cotyledon Damage, in the class Chickpea/Garbanzo Beans.
Stakeholders recommended that AMS revise the Bean Inspection Handbook criteria to include the new damage factor, Cotyledon Damage, in the class Chickpea/Garbanzo Beans. AMS and stakeholders worked collaboratively to define and state the criteria for Cotyledon Damage in Chickpea/Garbanzo Beans. Additionally, these changes were recommended to AMS by stakeholders to facilitate current marketing practices.
AMS published a Notice in the
AMS is revising the Chickpea/Garbanzo bean inspection criteria by amending the Bean Inspection Handbook to include the definition and criteria requirements for Cotyledon Damage in Chickpea/Garbanzo Beans. The new damage factor will be defined as, “Chickpea/Garbanzo beans or pieces of Chickpea/Garbanzo beans with a white chalky or wafer-like spot that penetrates the cotyledon (singularly or in combination) that meets or exceeds the minimum coverage shown on VRI-Bean-5.1 Cotyledon Damage (Chickpea/Garbanzo).” The criteria also specify that damage portion size requirements for chickpea/garbanzo beans are approximately 250 grams for small-seeded beans and 500 grams for large-seeded beans. Further, suspect beans must be scraped to confirm the spot penetrates into the cotyledon and is of a size to constitute damage, per the definition.
U.S. Commission on Civil Rights.
Notice 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 New York Advisory Committee (Committee) will hold meetings via WebEx on Friday, September 3, 2021; from 1:00-2:15 p.m. ET, and Friday, September 17, 2021; from 1:00-2:15 p.m. ET, for the purpose of debriefing testimony heard related to the Committee's project on potential racial discrimination in eviction policies and enforcement in New York.
The meetings will be held on Friday, September 3, 2021; from 1:00 p.m.-2:15 p.m. ET and Friday, September 17, 2021; from 1:00 p.m.-2:15 p.m. ET Access details for both meetings:
• To join by web conference please click the link below; password is USCCR:
• To join by phone only, dial: 1-800-360-9505; Access Code: 199 963 9326#.
Mallory Trachtenberg, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference operator will ask callers to identify themselves, the organizations they are affiliated with (if any), and an email address prior to placing callers into the conference call. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number. To request additional accommodations, please email
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 emailed to Mallory Trachtenberg at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that Nippon Steel Corporation (NSC) and Tokyo Steel Manufacturing Co., Ltd. (Tokyo Steel), producers and exporters of hot-rolled steel flat products (hot-rolled steel) from Japan, sold subject merchandise in the United States at prices below normal value during the period of review (POR) October 1, 2018, through September 30, 2019. In addition, Commerce determines that Honda Trading Canada, Inc. (Honda), Panasonic Corporation (Panasonic), and Mitsui & CO., Ltd. (Mitsui) had no shipments during the POR.
Applicable August 26, 2021.
Jun Jack Zhao or Myrna Lobo, 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) 482-1396 or (202) 482-2371, respectively.
On February 23, 2021, Commerce published the
On April 14, 2021, we extended the deadline for the final results.
These final results cover 26 producers and exporters of subject merchandise.
The merchandise covered by the
In the
We addressed all issues raised in the case and rebuttal briefs in the Issues and Decision Memorandum, which is hereby adopted with this notice. The issues are identified in Appendix I to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on our review and analysis of the comments received from parties, we did not make changes to the margin calculations. For a discussion of these changes,
The statute and Commerce's regulations do not address the establishment of a rate to be applied to companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation, for guidance when calculating the rate for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
For these final results, we calculated weighted-average dumping margins that are not zero,
We are assigning the following weighted-average dumping margins to the firms listed below for the period October 1, 2018, through September 30, 2019:
Consistent with its recent notice,
Where the respondent reported reliable entered values, we calculated importer—(or customer-) specific
For the companies which were not selected for individual review, we will assign an assessment rate based on the methodology described in the “Rates for Non-Examined Companies” section, above.
Consistent with Commerce's assessment practice, for entries of subject merchandise during the POR produced by NSC, Tokyo Steel, or the non-examined companies for which the producer did not know that its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
The following cash deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for the companies listed in these final results will be equal to the weighted-average dumping margins established in the final results of this review; (2) for merchandise exported by producers or exporters not covered in this review but covered in a prior segment of this proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment in which the company was reviewed; (3) if the exporter is not a firm covered in this review or the original less-than-fair-value (LTFV) investigation, but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the subject merchandise; and (4) the cash deposit rate for all other producers or exporters will continue to be 5.58 percent,
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
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(h) and 351.221(b)(5) of Commerce's regulations.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On July 8, 2021, the Department of Commerce (Commerce) published the initiation and preliminary results of a changed circumstances review (CCR) of the antidumping duty (AD) order on certain frozen warmwater shrimp (shrimp) from the Socialist Republic of Vietnam (Vietnam). For these final results, Commerce continues to find that Camimex Group Joint Stock Company is the successor-in-interest (SII) to Camau Frozen Seafood Processing Import Export Corporation, in the context of the AD order on shrimp from Vietnam.
Applicable August 26, 2021.
Irene Gorelik or Samuel Glickstein, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6905 or (202) 482-5307, respectively.
On June 2, 2021, Camimex Group Joint Stock Company requested that, pursuant to section 751(b) of the Tariff Act of 1930, as amended (the Act), 19 CFR 351.216, and 19 CFR 351.221(c)(3), Commerce conduct a CCR of the
On July 8, 2021, Commerce initiated a CCR and preliminarily determined that Camimex Group Joint Stock Company is the SII to Camau Frozen Seafood Processing Import Export Corporation.
The merchandise subject to the
For the reasons stated in the
We are issuing this determination and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Act, and 19 CFR 351.216(e), 351.221(b), and 351.221(c)(3).
The scope of the order includes certain frozen warmwater shrimp and prawns, whether wildcaught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of the order, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTS”), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of the order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of the order. Excluded from the scope are: (1) Breaded shrimp and prawns (HTS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the
The products covered by this order are currently classified under the following HTS subheadings: 0306.17.0004, 0306.17.0005, 0306.17.0007, 0306.17.0008, 0306.17.0010, 0306.17.0011, 0306.17.0013, 0306.17.0014, 0306.17.0016, 0306.17.0017, 0306.17.0019, 0306.17.0020, 0306.17.0022, 0306.17.0023, 0306.17.0025, 0306.17.0026, 0306.17.0028, 0306.17.0029, 0306.17.0041, 0306.17.0042, 1605.21.10.30, and 1605.29.10.10. These HTS subheadings are provided for convenience
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that exporters/producers of stainless steel flanges from India made sales at prices below normal value during the period of review (POR) March 28, 2018, through September 30, 2019.
Applicable August 26, 2021.
Benito Ballesteros, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-7425.
On February 24, 2021, Commerce published the
The merchandise covered by the order is stainless steel flanges from India. For a complete description of the scope of this order,
We addressed all issues raised in the case and rebuttal briefs in the Issues and Decision Memorandum. Attached to this notice, in Appendix I, is a list of the issues which parties raised. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on a review of the record and comments received from interested parties, and for the reasons explained in the Issues and Decision Memorandum, we made no changes to the
In accordance with the U.S. Court of Appeals for the Federal Circuit's decision in
We are assigning the following dumping margin to the firms listed below for the POR, March 28, 2018, through September 30, 2019:
Normally, Commerce discloses the calculations performed in its analysis to parties in a review within five days of the date of publication of the notice of final results, in accordance with 19 CFR 351.224(b). However, because Commerce applied a rate based on total AFA to the mandatory respondent in this review, in accordance with section 776 of the Act, there are no calculations to disclose.
Pursuant to section 751(a)(2)(C) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.212(b), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review. We intend to issue appropriate assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
For the final results, we will instruct CBP to apply an
The following cash deposit requirements will be effective upon publication of the notice of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2) of the Act: (1) The cash deposit rate for Chandan and the companies not individually examined will be equal to the rates established in the final results of this administrative review; (2) for merchandise exported by producers or exporters not covered by this review but covered by a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered by this review or the original less-than-fair-value (LTFV) investigation, but the producer is, then the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the merchandise; (4) the cash deposit rate for all other producers or exporters will continue to be 14.29 percent,
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On July 12, 2021, the Department of Commerce (Commerce) published the initiation and preliminary results of a changed circumstances review (CCR) of the antidumping duty (AD) order on certain softwood lumber products from Canada. For these final results, Commerce continues to find that CHAP Alliance, Inc. (CHAP) is the successor-in-interest to L'Atelier de Réadaptation au Travail de Beauce Inc. (L'Atelier) in the context of the AD order on certain softwood lumber products from Canada.
Applicable August 26, 2021.
Maisha Cryor, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5831.
On May 5, 2021, CHAP requested
On July 6, 2021, Commerce initiated a CCR and preliminarily determined that CHAP is the successor-in-interest to L'Atelier.
The merchandise covered by the
For the reasons stated in the
We are issuing this determination and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Act, and 19 CFR 351.216(e), 351.221(b), and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to Hyundai Steel Co., Ltd. (Hyundai Steel), a producer and exporter of certain hot-rolled steel flat products (hot-rolled steel) from the Republic of Korea (Korea). The period of review (POR) is January 1, 2018, through December 31, 2018.
Applicable August 26, 2021.
Nathan James, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5305.
Commerce published the
The product covered by this order is hot-rolled steel. For a complete description of the scope of this order,
We addressed all issues raised in interested parties' case briefs in the Issues and Decision Memorandum accompanying this notice. A list of the issues raised by parties, to which Commerce responded in the Issues and Decision Memorandum, is provided as an appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
After evaluating the comments received from interested parties and record information, we have made no changes to the net subsidy rate calculated for Hyundai Steel. For a discussion of these comments,
Commerce conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we find that there is a subsidy,
We determine that, for the period January 1, 2018, through December 31, 2018, the following net countervailable subsidy rate exists:
No changes were made to the calculations since the
Pursuant to section 751(a)(1) of the Act and 19 CFR 351.212(b)(2), Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries of subject merchandise in accordance with the final results of this review, for Hyundai Steel at the applicable
In accordance with section 751(a)(2)(C) of the Act, Commerce intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts shown for the company listed above. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposits, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
These final results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to producers and exporters of stainless steel flanges (steel flanges) from India during the period of review, January 23, 2018, through December 31, 2018.
Applicable August 26, 2021.
Eliza Siordia, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3878.
Commerce published the
The products covered by this order are stainless steel flanges from India. For a complete description of the scope of the order,
All issues raised in interested parties' briefs are addressed in the Issues and Decision Memorandum. A list of the issues raised by interested parties and to which we responded in the Issues and Decision Memorandum is provided in Appendix I to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
After evaluating the comments received from interested parties and record information, we have made no changes to the net subsidy rate calculated for Chandan Steel Limited (Chandan) or Kisaan Die Tech Pvt Ltd. (Kisaan). For a discussion of these comments,
Commerce is conducting this review in accordance with section 751(a)(l)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we find that there is a subsidy,
For the companies not selected for individual review, because the rates calculated for Chandan and Kisaan are above
In accordance with section 751(a)(1)(A) of the Act and 19 CFR 351.221(b)(5), we determine the total estimated net countervailable subsidy rates for the period January 23, 2018, through December 31, 2018 to be as follows:
Normally, Commerce discloses to interested parties the calculations performed in connection with a final results within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of final determination in the
Consistent with section 751(a)(2)(C) of the Act, upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. Commerce intends to issue appropriate assessment instructions to CBP no earlier than 35 days after publication of these final results. If a timely summons is filed at the U.S. Court of International Trade, the assessment instructions will direct CBP not to liquidate relevant entries until the time for parties to file a request for a statutory injunction has expired (
Pursuant to section 751(a)(1) of the Act, Commerce intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts indicated above with regard to shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit instructions, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the
These final results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable August 26, 2021.
Thomas Martin at (202) 482-3936 or Eva Kim at (202) 482-8283 (Argentina); Justin Neuman at (202) 482-0486 (Brazil); Brittany Bauer at (202) 482-3860 (India); Jasun Moy at (202) 482-8194 (Ukraine); and Jonathan Hill at (202) 482-3518 (the Socialist Republic of Vietnam (Vietnam)); AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On May 11, 2021, the Department of Commerce (Commerce) initiated the less-than-fair-value (LTFV) investigations of raw honey from Argentina, Brazil, India, Ukraine, and Vietnam.
Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in an LTFV investigation within 140 days after the date on which Commerce initiated the investigation. However, section 733(c)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 190 days after the date on which Commerce initiated the investigation if: (A) The petitioner makes a timely request for a postponement; or (B) Commerce concludes that the parties concerned are cooperating, that the investigation is extraordinarily complicated, and that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Commerce will grant the request unless it finds compelling reasons to deny the request.
On August 17, 2021, the American Honey Producers Association and the Sioux Honey Association (collectively, the petitioners) submitted a timely request that Commerce postpone the preliminary determinations in the LTFV investigations for Argentina, Brazil, India, Ukraine, and Vietnam.
For the reasons stated above, and because there are no compelling reasons to deny the request, Commerce, in accordance with section 733(c)(1)(A) of the Act and 19 CFR 351.205(e), is postponing the deadline for the
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) granted an eight-day extension of the deadline to submit comments on Russia's status as a market economy (ME) country. Accordingly, the deadline to submit such comments, for all interested parties, is now no later than the close of business (
Applicable August 26, 2021.
Leah Wils-Owens, Office of Policy, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4203.
On July 30, 2021, Commerce published
In response to the request for additional time to comment, we have extended the due date for the submission of comments.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of web conference.
The North Pacific Fishery Management Council (Council) Crab Plan Team will meet September 13, 2021, through September 17, 2021 and on September 24, 2021.
The meeting will be held on Monday, September 13, 2021 through Friday, September 17, 2021, and Friday, September 24, 2021, from 8 a.m. to 4 p.m. Alaska Time.
The meeting will be a web conference. Join online through the link at
Diana Stram, Council staff; phone: (907) 271-2809; email:
The agenda will include: (a) Final 2021 stock assessments for Eastern Bering Sea snow crab, Bristol Bay red king crab, and Eastern Bering Sea Tanner crab; (b) stock assessment modeling scenarios for Norton Sound red king crab; (c) other discussions including St. Matthew blue king crab specifications, updates on the NMFS trawl survey and fishery catches and bycatch, discussions about ecosystem and socioeconomic profiles, an ABSC questionnaire, GMACS, Climate Science Regional Action Plan, and (d) planning for future meetings.
The Crab Plan Team will convene on this day to review supplemental information for the final 2021 stock assessment for Bristol Bay red king crab, if necessary. The agenda is subject to change, and the latest version will be posted at
You can attend the meeting online using a computer, tablet, or smart phone, or by phone only. Connection information will be posted online at:
Public comment letters will be accepted and should be submitted electronically to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Western Pacific Fishery Management Council (Council) will hold its 141st Scientific and Statistical Committee (SSC), Fishery Data Collection and Research Committee (FDCRC), Executive and Budget Standing Committee, and 187th Council meetings to take actions on fishery management issues in the Western Pacific Region.
The meetings will be held between September 14 and September 23, 2021. For specific times and agendas, see
The meetings will be held by web conference via WebEx. Instructions for connecting to the web conference and providing oral public comments will be posted on the Council website at
The Council has arranged host sites only for the 187th Council meeting at the following venues: Cliff Pointe, 304 W. O'Brien Drive, Hagatna, Guam; BRI Building Suite 205, Kopa Di Oru St., Garapan, Saipan, CNMI; and, Tedi of Samoa Building Suite 208B, Fagatogo Village, American Samoa.
Contact Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council; phone: (808) 522-8220.
All times shown are in Hawaii Standard Time. The 141st SSC meeting will be held between 11 a.m. and 5 p.m. on September 14-16, 2021. The Fishery Data Collection and Research Committee will be held between 12:30 p.m. and 2:30 p.m. on September 20, 2021. The Executive and Budget Standing Committee meeting will be held between 3:30 p.m. and 5:30 p.m. on September 20, 2021. The 187th Council meeting will be held between 11 a.m. and 5 p.m. on September 21-23, 2021.
Please note that the evolving public health situation regarding COVID-19 may affect the conduct of the September Council and its associated meetings. At the time this notice was submitted for publication, the Council anticipated convening the meeting by web conference with host site locations in Guam, CNMI and American Samoa only for the 187th Council meeting. Council staff will monitor COVID-19 developments and will determine the extent to which in-person public participation at host sites will be allowable consistent with applicable local and federal safety and health guidelines. If public participation will be limited to web conference only or on a first-come-first-serve basis consistent with applicable guidelines, the Council will post notice on its website at
Agenda items noted as “Final Action” refer to actions that may result in Council transmittal of a proposed fishery management plan, proposed plan amendment, or proposed regulations to the U.S. Secretary of Commerce, under Sections 304 or 305 of the MSA. In addition to the agenda items listed here, the Council and its advisory bodies will hear recommendations from Council advisors. An opportunity to submit public comment will be provided throughout the agendas. The order in which agenda items are addressed may change and will be announced in advance at the Council meeting. The meetings will run as late as necessary to complete scheduled business.
Background documents for the 187th Council meeting will be available at
Non-emergency issues not contained in this agenda may come before the Council for discussion and formal Council action during its 187th meeting. However, Council action on regulatory issues will be restricted to those issues specifically listed in this document and any regulatory issue arising after publication of this document that requires emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take action to address the emergency.
These meetings are accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Herring Advisory Panel 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 webinar will be held on Monday, September 13, 2021, at 1 p.m. Webinar registration URL information:
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Herring Advisory Panel will review and select final preferred alternatives for Framework 9, an action considering a rebuilding plan and potential adjustments to herring accountability measures. They will discuss initial work priorities for 2022 specific to the Herring Fishery Management Plan. The Council will consider these recommendations at the September Council meeting. Other business may be discussed, as necessary.
Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council 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. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its
This webinar will be held on Wednesday, September 15, 2021, at 9 a.m. Webinar registration URL information:
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Herring Committee will review and select final preferred alternatives for Framework 9, an action considering a rebuilding plan and potential adjustments to herring accountability measures. They will discuss initial work priorities for 2022 specific to the Herring Fishery Management Plan. The Council will consider these recommendations at the September Council meeting. Other business may be discussed, as necessary.
Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council 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. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
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.
Notice of availability of Record of Decision.
On July 27, 2021, the Department of the Air Force (DAF) signed a Record of Decision (ROD) based on the Air National Guard Final Environmental Impact Statement.
Mr. Will Strickland, NGB/A4AM, 3501 Fetchett Ave., Joint Base Andrews, Maryland 20762, (240) 612-7042;
The DAF will beddown 18 F-35A Primary Aircraft Authorized (PAA) and 2 Back-up Inventory (BAI) with associated construction activities as identified under the NGB for Ops 9 at the 125 FW, Jacksonville IAP, Florida. The DAF decision documented in the ROD was based on matters discussed in the Final Environmental Impact Statement, inputs from the public and regulatory agencies, and other relevant factors. The Final EIS was made available to the public on February 5, 2021 through a Notice of Availability in the
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposed revision and extension of a collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by September 27, 2021.
a. DFARS 245.302 concerns contracts with foreign governments or international organizations. Paragraph (1)(i) requires contractors to request and obtain contracting officer approval before using Government property on work for foreign governments and international organizations.
b. DFARS 245.604-3 concerns the sale of surplus Government property. Under paragraph (b), a contractor may be directed by the plant clearance officer to issue informal invitations for bids.
c. The clause at DFARS 252.245-7003, Contractor Property Management System Administration, prescribed at 245.107(5), and DFARS 245.105, Contractor's Property Management System Compliance, address the requirement for contractors to respond in writing to initial and final determinations from the administrative contracting officer that identifies deficiencies in the contractor's property management system. Estimated hours, number of respondents, and number of responses were increased slightly to accommodate a public comment.
d. DD Form 1348-1A, DoD Single Line Item Release/Receipt Document, is prescribed at DFARS 245.7001-3. The form is used when authorized by the plant clearance officer.
e. DD Form 1639, Scrap Warranty, is prescribed in the clause at DFARS 252.245-7004, Reporting, Reutilization, and Disposal. When scrap is sold by the contractor, after Government approval, the purchaser of the scrap material(s) may be required to certify, by signature on the DD Form 1639, that (i) the purchased material will be used only as scrap and (ii), if sold by the purchaser, the purchaser will obtain an identical warranty from the individual buying the scrap from the initial purchaser. The warranty contained in the DD Form 1639 expires by its terms five years from the date of the sale.
Comments and recommendations on the proposed information collection should be sent to Ms. Susan Minson, DoD Desk Officer, at
You may also submit comments, identified by docket number and title, by the following method:
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change of a currently approved collection.
Interested persons are invited to submit comments on or before September 27, 2021.
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 Britt Jung, 202-453-6046.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notification of petition for waiver and grant of an interim waiver; request for comments.
This document announces receipt of and publishes a petition for waiver and interim waiver from LRC Coil Company (“LRC Coil”), which seeks a waiver for specified walk-in unit cooler basic models from the U.S. Department of Energy (“DOE”) test procedure used to determine the efficiency and energy consumption of walk-in coolers and walk-in freezers. DOE also gives notice of an Interim Waiver Order that requires LRC Coil to test and rate the specified walk-in unit cooler basic models in accordance with the alternate test procedure set forth in the Interim Waiver Order. DOE solicits comments, data, and information concerning LRC Coil's petition and the alternate test procedure specified in the Interim Waiver Order so as to inform DOE's final decision on LRC Coil's waiver request.
The Interim Waiver Order is effective on August 26, 2021. Written comments and information are requested and will be accepted on or before September 27, 2021.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
1.
2.
No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see the
Although DOE has routinely accepted public comment submissions through a variety of mechanisms, including postal mail and hand delivery/courier, the Department has found it necessary to make temporary modifications to the comment submission process in light of the ongoing Covid-19 pandemic. DOE is currently suspending receipt of public comments via postal mail and hand delivery/courier. If a commenter finds that this change poses an undue hardship, please contact Appliance Standards Program staff at (202) 586-1445 to discuss the need for alternative arrangements. Once the Covid-19 pandemic health emergency is resolved, DOE anticipates resuming all of its regular options for public comment submission, including postal mail and hand delivery/courier.
The docket web page can be found at
Ms. Lucy deButts, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Email:
Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-33, Forrestal Building, 1000 Independence Avenue SW, Washington, DC 20585-0103. Telephone: (202) 586-8145. Email:
DOE is publishing LRC Coil's petition for waiver in its entirety,
However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. If this instruction is followed, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. Faxes will not be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
The Energy Policy and Conservation Act, as amended (“EPCA”),
The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C. 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316(a); 42 U.S.C. 6299).
The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: (1) Certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(a); 42 U.S.C. 6295(s)), and (2) making representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE must use these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. (42 U.S.C. 6316(a); 42 U.S.C. 6295(s)).
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered equipment. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect the energy efficiency, energy use or estimated annual operating cost of covered products and equipment during a representative average use cycle and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C.6314(a)(2)) The test procedure used to determine the net capacity and annual walk-in energy factor (“AWEF”) of walk-in cooler and walk-in freezer refrigeration systems is contained in the Code of Federal Regulations (“CFR”) at 10 CFR part 431, subpart R, appendix C,
Under 10 CFR 431.401,
As soon as practicable after the granting of any waiver, DOE will publish in the
The waiver process also provides that DOE may grant an interim waiver if it appears likely that the underlying petition for waiver will be granted and/or if DOE determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the underlying petition for waiver. 10 CFR 431.401(e)(2) (10 CFR parts 200 to 499 edition revised as of January 1, 2021). Within one year of issuance of an interim waiver, DOE will either: (i) Publish in the
If DOE ultimately denies the petition for waiver, or if the alternate test procedure specified in the interim waiver differs from the alternate test procedure specified by DOE in a subsequent decision and order, DOE will provide a period of 180 days before the manufacturer is required to use the DOE test procedure or the alternate test procedure specified in the decision and order to make representations of energy efficiency. 10 CFR 431.401(i).
In a letter docketed on December 1, 2020, LRC Coil filed a petition for waiver and interim waiver from the test procedure for walk-in cooler and walk-in freezer refrigeration systems set forth at Appendix C. (LRC Coil, No. 1 at pp. 1-4
The primary assertion in the petition is that absent an interim waiver the prescribed test procedure would evaluate the specified basic models in a manner so unrepresentative of their true energy consumption as to provide materially inaccurate comparative data. As presented in LRC Coil's petition, the specified basic models of walk-in unit coolers operate at a temperature range of 45 °F to 65 °F; higher than that of a typical walk-in cooler refrigeration system. Thus, the 35 °F temperature specified in the DOE test procedure for medium-temperature walk-in refrigeration systems would result in the prescribed test procedures evaluating the specified basic models in a manner so unrepresentative of their true energy consumption characteristics as to provide materially inaccurate comparative data. LRC Coil also states that the specified basic models are “split cooling systems for walk-in wine cellars” that operate at temperature and relative humidity ranges optimized for the long-term storage of wine and are usually located in air-conditioned spaces. LRC Coil contends that because of these characteristics, wine cellar walk-in unit cooler systems differ from other walk-in cooler refrigeration systems in their walk-in box temperature setpoint, walk-in box relative humidity, low/high load split,
LRC Coil states that the specified basic models are designed to provide a cold environment at a temperature range between 45 °F to 65 °F with 50-70 percent relative humidity (“RH”), and typically are kept at 55 °F and 55 percent RH rather than the 35 °F and <50 percent RH test condition prescribed by the DOE test procedure. LRC Coil states that the refrigeration systems are designed solely for the purpose of long-term wine storage to mimic the temperature and humidity of natural caves. LRC Coil also asserts that wine cellars optimally operate between 45 °F to 65 °F, and notes that the design of their units prohibits their operation at room/entering air temperatures of less than 45 °F. Although not specifically addressed in LRC Coil's request for waiver, DOE understands that operating the subject walk-in cooler refrigeration systems at the 35 °F condition would adversely mechanically alter the intended performance of the system, which would include icing of the evaporator coil that could potentially damage the compressor, and would not result in an accurate representation of the performance of the cooling unit.
The basic models listed in LRC Coil's petition include “Evaporator Only Models” which are not sold with a matched condensing unit (
DOE has received multiple requests from wine cellar manufacturers for waiver and interim waiver from Appendix C. In light of these requests, DOE met with both AHRI and wine cellar walk-in cooler refrigeration system manufacturers to develop a consistent and representative alternate test procedure that would be relevant to each waiver request. Ultimately, AHRI sent a letter to DOE on August 18, 2020, summarizing the industry's position on several issues (“AHRI August 2020 Letter”).
LRC Coil also requests an interim waiver from the existing DOE test procedure. DOE will grant an interim waiver if it appears likely that the petition for waiver will be granted, and/or if DOE determines that it would be desirable for public policy reasons to grant immediate relief pending a determination of the petition for waiver. 10 CFR 431.401(e)(2).
EPCA requires that manufacturers use DOE test procedures when making representations about the energy consumption and energy consumption costs of covered equipment. (42 U.S.C. 6314(d)) Consistency is important when making representations about the energy efficiency of covered products and equipment, including when demonstrating compliance with applicable DOE energy conservation standards. Pursuant to 10 CFR 431.401, and after consideration of public comments on the petition, DOE may establish in a subsequent Decision and Order an alternate test procedure for the basic models addressed by the Interim Waiver Order.
LRC Coil seeks to use an approach that would test and rate specific wine cellar walk-in unit cooler basic models. The company's suggested approach specifies using an air-return temperature of 55 °F, as opposed to the 35 °F requirement prescribed in the current DOE test procedure. LRC Coil also suggests using an air-return relative humidity of 55 percent, as opposed to <50 percent RH as prescribed in the current DOE test procedure. LRC Coil stated that wine cellar walk-in cooler refrigeration systems do not experience high- and low- temperature conditions, but rather operate at steady state in a predominantly air-conditioned environment, supporting the use of the correction factor to adjust for average usage. LRC Coil requested that a correction factor of 0.55 be applied to the final AWEF calculation to adjust for average usage.
DOE has reviewed LRC Coil's application, its suggested testing approach, representations of the specified basic models on the website for the LRC Coil brand, related product catalogs, and information provided by LRC Coil and other wine cellar walk-in cooler refrigeration system manufacturers as discussed. Based on the assertions in the petition, absent an interim waiver, the DOE test procedure for walk-in cooler refrigeration systems would evaluate the subject basic models in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. Therefore, based on its review, DOE is granting an interim waiver that requires testing with a modified version of the testing approach suggested by LRC Coil.
The modified testing approach would apply to unit cooler (evaporator) only models specified in LRC Coil's waiver petition Specified ducted basic models (RMD and VAH) and specified ductless basic models (SLA, SLPA, DQ, LPAQ, Q, CE, HS, RM, VRM, BK, CTIH, CTE, and WM) are unit coolers (evaporator units) designed to be paired with a remote condensing unit that is provided by a different manufacturer, in which refrigerant circulates between the “evaporator unit” (unit cooler) portion of the system and the “remote condensing unit”. The refrigerant cools the wine cellar air in the evaporator unit, while the condensing unit rejects heat from the refrigeration system in a remote location, often outside. The evaporator unit of the ducted unit cooler system circulates air through ducts from the wine cellar to the evaporator unit and back to provide cooling, while the evaporator unit of the ductless unit cooler system may be ceiling-mounted, installed through-the-wall, or installed inside of the wine cellar for direct cooling. The capacity range of the specified basic models is from 1,500 Btu/h to 36,000 Btu/h for the specified operating conditions for each of the models.
DOE considers the operating temperature range of the specified basic models to be integral to its analysis of whether such models require a test procedure waiver. Grant of the interim waiver and its alternative test procedure to the specified basic models listed in the petition is based upon the representation by LRC Coil that the operating range for the basic models listed in the interim waiver does not extend below 45 °F.
The alternate test procedure specified in the Interim Waiver Order requires testing the specified basic models according to Appendix C with the following changes. The required alternate test procedure specifies an air entering dry-bulb temperature of 55 °F and a relative humidity of 55 percent.
Although not addressed by LRC Coil in its petition, the DOE test procedure for unit coolers tested alone requires use of an energy efficiency ratio (“EER”) value,
Therefore, DOE developed EER values appropriate to wine cellar walk-in cooler refrigeration systems. DOE obtained compressor performance data from Emerson and Tecumseh product websites (EERE-2020-BT-WAV-0040, No. 0002 and No. 0008, respectively) for high-temperature refrigeration compressor models within the applicable capacity range (2,900 Btu/h to 36,000 Btu/h). DOE expects that the condensing units paired with wine cellar walk-in unit coolers will use either hermetic reciprocating or hermetic scroll compressors designed for use with HFC-134a, R404A, or R407C refrigerants. Based on the compressor performance data, DOE calculated representative compressor EER levels for wine cellar walk-in unit coolers using the following parameters:
• 38 °F unit cooler exit dew point condition, as suggested by LRC (LRC Coil, No. 1 at pp. 3).
• 2 °F equivalent suction line dew point pressure drop, consistent with AHRI 1250-2009 section 7.9.1.
• 7 °F evaporator exit superheat, rounding to whole number values of the 6.5 °F superheat test condition prescribed in the footnote to Table 15 of Appendix C in case a value is not provided in an installation manual.
• 55 °F refrigerant temperature entering the compressor, representing a 10 °F refrigerant vapor temperature rise in the suction line, consistent with the temperature rise implied for medium-temperature refrigeration system test conditions.
• 90 °F annual average condensing temperature. This assumes that the condensing unit serving the unit cooler would be located outdoors and that head pressure control would prevent excessively cold condensing operation at cold outdoor temperatures.
DOE plotted the calculated compressor EER values versus calculated unit cooler capacity and noted that the EER can significantly vary with capacity (EERE-2020-BT-WAV-0040, No. 0009). EER is generally low for low-capacity compressors and high for high-capacity compressors, with a transition region in between. Based on the plotted calculations, DOE determined for the purpose of the interim waiver that a representative value for EER should depend on capacity. As such, DOE developed different functions of EER for three distinct capacity ranges. Table 1 summarizes these capacity ranges and EER functions for high-temperature compressors.
Section 3.3.7 of Appendix C specifies section 7.9 of AHRI 1250-2009 for calculation of AWEF and net capacity for unit coolers tested alone. The alternate test procedure required under this interim waiver modifies section 3.3.7 of Appendix C to use the EER values provided in Table 1 for determining AWEF.
The alternate test procedure required under the interim waiver also includes the following modifications to LRC Coil's suggested approach: For systems that can be installed with ducted evaporator air or without ducted evaporator air, testing would be conducted at 50 percent of the maximum ESP, consistent with the AHRI August 2020 Letter recommendations, subject to a tolerance of −0.00/+0.05 in. wc.
Selection of a representative ESP equal to half the maximum ESP is based on the expectation that most installations will require less than the maximum allowable duct length. In the absence of field data, DOE expects that a range of duct lengths from the minimal length to the maximum allowable length would be used; thus, DOE believes that half of the maximum ESP would be representative of most installations. For unit cooler basic models that are not designed for the ducting of air, this design characteristic must be clearly stated.
Additionally, if there are multiple evaporator fan speed settings, the speed setting in the unit's installation instructions would be used for testing. However, if the installation instructions do not specify a fan speed setting for ducted installation, systems that can be installed with ducts would be tested with the highest available fan speed. The ESP would be set for testing by
The alternate test procedure also describes the requirements for measurement of ESP consistent with provisions provided in section C9.1.1.2 of AHRI 1250-2020 when using the indoor air enthalpy method with unit coolers.
DOE notes that, despite the request from LRC Coil, it is not including a 0.55 correction factor in the alternate test procedure required by the Interim Waiver Order. The company sought to include a 0.55 correction factor to adjust for average use, stating that wine cellars do not experience high- and low-load conditions, but rather operate at steady state conditions in a predominately air-conditioned environment, but did not provide any additional support for this recommendation. While not specifically addressed in the request for waiver submitted by LRC Coil, waivers submitted by other manufacturers have stated that the suggested 0.55 correction factor addresses the differences in run time and compressor inefficiency of wine cellar walk-in cooler refrigeration systems as compared to walk-in cooler refrigeration systems more generally and have suggested that the run time for wine cellar walk-in cooler refrigeration systems ranges from 50 to 75 percent.
Based on DOE's review of LRC Coil's petition, the required alternate test procedure specified in the Interim Waiver Order appears to allow for the accurate measurement of energy efficiency of the specified basic models, while alleviating the testing issues associated with LRC Coil's implementation of wine cellar walk-in unit cooler testing for these basic models. Consequently, DOE has determined that LRC Coil's petition for waiver will likely be granted. Furthermore, DOE has determined that it is desirable for public policy reasons to grant LRC Coil immediate relief pending a determination of the petition for waiver.
For the reasons stated, it is
LRC Coil must test and rate the following LRC branded wine cellar walk-in unit cooler basic models with the alternate test procedure set forth in paragraph (2).
(2) The alternate
In Appendix C to Subpart R, revise section 3.1.1 (which specifies modifications to AHRI 1250-2009 (incorporated by reference; see § 431.303)) to read:
3.1.1. In Table 1, Instrumentation Accuracy, refrigerant temperature measurements shall have an accuracy of ±0.5 °F for unit cooler in/out. Measurements used to determine temperature or water vapor content of the air (
In Appendix C to Subpart R, revise section 3.1.5 (which specifies modifications to AHRI 1250-2009) and revise modifications to AHRI 1250-2009 Table 15:
3.1.5. Table 15 shall be modified to read:
In Appendix C to Subpart R, revise section 3.3.1 (which specifies modifications to AHRI 1250-2009) to read:
3.3.1. For unit coolers tested alone, use test procedures described in AHRI 1250-2009 (incorporated by reference; see § 431.303) for testing unit coolers for use in mix-match system ratings, except that for the test conditions in Tables 15 and 16, use the Suction A saturation condition test points only. Determine AWEF as described in section 3.3.7.
In Appendix C to Subpart R, revise section 3.3.3, and add sections 3.3.3.1 and 3.3.3.2 to read:
3.3.3
3.3.3.1 The unit cooler fan power consumption shall be measured in accordance with the requirements in Section C3.5 of AHRI 1250-2009. This measurement shall be made with the fan operating at full speed, either measuring unit cooler or total system power input upon the completion of the steady state test when the compressor and the condenser fan of the walk-in system are turned off, or by submetered measurement of the evaporator fan power during the steady state test.
Section C3.5 of AHRI 1250-2009 is revised to read:
For a given motor winding configuration, the total power input shall be measured at the highest nameplated voltage. For three-phase power, voltage imbalance shall be no more than 2%.
3.3.3.2 Evaporator fan power for the off cycle is equal to the on-cycle evaporator fan power with a run time of ten percent of the off-cycle time.
In Appendix C to Subpart R, add new section 3.3.11 to read:
3.3.11. For unit cooler systems tested alone with ducted evaporator air, or that can be installed with or without ducted evaporator air: Connect ductwork on both the inlet and outlet connections and determine external static pressure as described in ASHRAE 37-2009, sections 6.4 and 6.5. Use pressure measurement instrumentation as described in ASHRAE 37-2009 section 5.3.2. Test at the fan speed specified in manufacturer installation instructions—if there is more than one fan speed setting and the installation instructions do not specify which speed to use, test at the highest speed. Conduct tests with the external static pressure equal to 50 percent of the maximum external static pressure allowed by the manufacturer for system installation within a tolerance of −0.00/+0.05 in. wc. Set the external static pressure by symmetrically restricting the outlet of the test duct. In case of conflict, these requirements for setting evaporator
In Appendix C to Subpart R, revise section 3.3.7 (which specifies modifications to AHRI 1250-2009) to read:
3.3.7. For unit coolers tested alone, calculate AWEF on the basis that walk-in box load is equal to half of the system net capacity, without variation according to high and low load periods, and with EER set according to tested evaporator capacity, as follows:
For Unit Coolers Tested Alone:
The net capacity,
(3) Representations. LRC Coil may not make representations about the efficiency of a basic model listed in paragraph (1) for compliance, marketing, or other purposes unless that basic model has been tested in accordance with the provisions set forth in this alternate test procedure and such representations fairly disclose the results of such testing.
(4) This Interim Waiver Order shall remain in effect according to the provisions of 10 CFR 431.401.
(5) This Interim Waiver Order is issued on the condition that the statements and representations provided by LRC Coil are valid. If LRC Coil makes any modifications to the controls or configurations of a basic model subject to this Interim Waiver Order, such modifications will render the waiver invalid with respect to that basic model, and LRC Coil will either be required to use the current Federal test method or submit a new application for a test procedure waiver. DOE may rescind or modify this waiver at any time if it determines the factual basis underlying the petition for the Interim Waiver Order is incorrect, or the results from the alternate test procedure are unrepresentative of a basic model's true energy consumption characteristics. 10 CFR 431.401(k)(1). Likewise, LRC Coil may request that DOE rescind or modify the Interim Waiver Order if LRC Coil discovers an error in the information provided to DOE as part of its petition, determines that the interim waiver is no longer needed, or for other appropriate reasons. 10 CFR 431.401(k)(2).
(6) Issuance of this Interim Waiver Order does not release LRC Coil from the applicable requirements set forth at 10 CFR part 429.
DOE makes decisions on waivers and interim waivers for only those basic models specifically set out in the petition, not future models that may be manufactured by the petitioner. LRC Coil may submit a new or amended petition for waiver and request for grant of interim waiver, as appropriate, for additional basic models of Walk-in Cooler Refrigeration Systems. Alternatively, if appropriate, LRC Coil may request that DOE extend the scope of a waiver or an interim waiver to include additional basic models employing the same technology as the basic model(s) set forth in the original
This document of the Department of Energy was signed on August 20, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE
LRC coil is requesting an interim and a permanent waiver from a DOE test procedure pursuant to provisions described in 10 CFR 431.401 for the following products on the grounds that either the basic model contains one or more design characteristics that prevent testing of the basic model according to the prescribed test procerus or the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics has to provide materially inaccurate comparative data. DOE uniform test method for the measurement of energy consumption of walk-in coolers and walk-in freezer described in 10 CFR 431.304 adopts the test standard set forth an AHRI 1250-2020. Our walk-in wine cellar cooling systems meet the definition of Walkin Cooler Refrigeration Systems.
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LRC brand basic models on which the waiver is being requested:
• Use a correction factor of 0.55 to calculate the AWEF to adjust for average usage.
• One load used to calculate AWEF.
• Evaporator air entering temperature dry bulb of 55 °F for split cooling systems.
• Evaporator air entering relative humidity 55% for split systems.
• Setting airflow and static pressure for systems with ducted evaporator. Fan speed would be in accordance with manufacturers specifications. The external static pressure for testing would be set to
• For unit cooler style units for wine use above 45 degree F the same SST of 38 deg F coil temperature, entering air temperature of 55 deg F and relative humidity of 55% will be used. Duty cycle and operating characteristics are the same as the other wine units.
It will ensure that manufacturers of wine cellar cooling systems can continue to participate in the market.
Economic hardship will be loss of sales due to not meeting the DOE energy conservation standards set forth and 10 CFR 431.306 if the existing products were altered in order to test for current requirements set forth in 10 CFR 431.204 and AHRI 1250-2020, would add significant costs and increase energy consumption.
LRC Coil requests an interim waiver and waiver from DOE's current test method for the measurement of energy consumption of walk-in wine cellar split cooling systems.
Respectfully submitted,
This is a supplemental notice in the above-referenced proceeding of Fairbanks Solar Energy Center 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 September 9, 2021.
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 proceeding of Fairbanks Solar Energy Center 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 September 9, 2021.
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 proceeding of SE Athos II, 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 September 9, 2021.
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 proceeding of SE Athos I, 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 September 9, 2021.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of E. BarreCo Corp 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 September 9, 2021.
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 proceeding of Heartland Generation Ltd.'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
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 September 9, 2021.
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 electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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:
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of five AHRQ subcommittee meetings.
The subcommittees listed below are part of AHRQ's Health Services Research Initial Review Group Committee. Grant applications are to be reviewed and discussed at these meetings. Each subcommittee meeting will be closed to the public.
See below for dates of meetings:
Agency for Healthcare Research and Quality (Virtual Review), 5600 Fishers Lane, Rockville, Maryland 20857.
(To obtain a roster of members, agenda or minutes of the non-confidential portions of the meetings.)
Jenny Griffith, Committee Management Officer, Office of Extramural Research Education and Priority Populations, Agency for Healthcare Research and Quality (AHRQ), 5600 Fishers Lane, Rockville, Maryland 20857, Telephone (301) 427-1557.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. app. 2), AHRQ announces meetings of the above-listed scientific peer review groups, which are subcommittees of AHRQ's Health Services Research Initial Review Group Committee. The subcommittee meetings will be closed to the public in accordance with the provisions set forth in 5 U.S.C. app. 2 section 10(d), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(6). 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.
Agenda items for these meetings are subject to change as priorities dictate.
Centers for Disease Control and Prevention, Department of Health and Human Services.
Notice.
In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC), announces the following meeting of the Advisory Committee on Immunization Practices (ACIP). This meeting is open to the public. Time will be available for public comment. The meeting will be webcast live via the World Wide Web; for more information on ACIP please visit the ACIP website:
The meeting will be held on August 30, 2021 and August 31, 2021, from 10:00 a.m. to 4:00 p.m., EDT (times subject to change). The docket is currently open to receive written comments. Written comments must be received on or before August 31, 2021.
A notice of this ACIP meeting has also been posted on CDC's ACIP website at:
You may submit comments, identified by Docket No. CDC-2021-0089 by any of the following methods:
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•
Stephanie Thomas, ACIP Committee Management Specialist, Centers for Disease Control and Prevention, National Center for Immunization and Respiratory Diseases, 1600 Clifton Road NE, MS-H24-8, Atlanta, GA 30329-4027; Telephone: 404-639-8367; Email:
Notice is hereby given of a change in the meeting of the Advisory Committee on Immunization Practices (ACIP); August 24, 2021, 10:00 a.m.-5:00 p.m., EDT (times subject to change), in the original FRN.
The virtual meeting was published in the
The virtual meeting is being amended to change the dates to August 30, 2021 and August 31, 2021, update meeting times and supplemental information.
In accordance with 41 CFR 102-3.150(b), less than 15 calendar days' notice is being given for this meeting due to the exceptional circumstances of the COVID-19 pandemic and rapidly evolving COVID-19 vaccine development and regulatory processes. A notice of this ACIP meeting has also been posted on CDC's ACIP website at:
Interested persons or organizations are invited to participate by submitting written views, recommendations, and data. Please note that comments received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. Comments will be posted on
If the number of persons requesting to speak is greater than can be reasonably accommodated during the scheduled time, CDC will conduct a lottery to determine the speakers for the scheduled public comment session. CDC staff will notify individuals regarding their request to speak by email by August 29, 2021. To accommodate the significant interest in participation in the oral public comment session of ACIP meetings, each speaker will be limited to 3 minutes, and each speaker may only speak once per meeting.
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) announces a forthcoming public advisory committee meeting of the General and Plastic Surgery Devices Panel of the Medical Devices Advisory Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public.
The meeting will take place virtually on October 20, 2021, from 9 a.m. Eastern Time to 6 p.m. Eastern Time.
Please note that due to the impact of this COVID-19 pandemic, all meeting participants will be joining this advisory committee meeting via an online teleconferencing platform. Answers to commonly asked questions including information regarding special accommodations due to a disability may be accessed at:
Candace Nalls, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5216, Silver Spring, MD 20993-0002,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available on FDA's website at the time of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material and the link to the online teleconference meeting room will be available at
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Ann Marie Williams at
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at:
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice; renewal of federal advisory committee.
The Food and Drug Administration (FDA or Agency) is announcing the renewal of the Nonprescription Drugs Advisory Committee by the Commissioner of Food and Drugs (the Commissioner). The Commissioner has determined that it is in the public interest to renew the Nonprescription Drugs Advisory Committee for an additional 2 years beyond the charter expiration date. The new charter will be in effect until the August 27, 2023, expiration date.
Authority for the Nonprescription Drugs Advisory Committee will expire on August 27, 2021, unless the Commissioner formally determines that renewal is in the public interest.
Moon Hee V. Choi, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301 837-7126,
Pursuant to 41 CFR 102-3.65 and approval by the Department of Health and Human Services pursuant to 45 CFR part 11 and by the General Services Administration, FDA is announcing the renewal of the Nonprescription Drugs Advisory Committee (the Committee). The Committee is a discretionary Federal advisory committee established to provide advice to the Commissioner. The Committee advises the Commissioner or designee in discharging responsibilities as they relate to helping to ensure safe and
The Committee reviews and evaluates available data concerning the safety and effectiveness of over-the-counter (nonprescription) human drug products, or any other FDA-regulated product, for use in the treatment of a broad spectrum of human symptoms and diseases and advises the Commissioner either on the promulgation of monographs establishing conditions under which these drugs are generally recognized as safe and effective and not misbranded or on the approval of new drug applications for such drugs. The Committee serves as a forum for the exchange of views regarding the prescription and nonprescription status, including switches from one status to another, of these various drug products and combinations thereof. The Committee may also conduct peer review of Agency sponsored intramural and extramural scientific biomedical programs in support of FDA's mission and regulatory responsibilities.
The Committee shall consist of 10 voting members including the Chair. Members and the Chair are selected by the Commissioner or designee from among authorities knowledgeable in the fields of internal medicine, family practice, clinical toxicology, clinical pharmacology, pharmacy, dentistry, and related specialties. Members will be invited to serve for overlapping terms of up to 4 years. Almost all non-Federal members of this committee serve as Special Government Employees. Federal members will serve as Regular Government Employees or Ex-Officios. The core of voting members may include one technically qualified member, selected by the Commissioner or designee, who is identified with consumer interests and is recommended by either a consortium of consumer-oriented organizations or other interested persons. In addition to the voting members, the Committee may include one non-voting representative member who is identified with industry interests. There may also be an alternate industry representative.
Further information regarding the most recent charter and other information can be found at
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app.). For general information related to FDA advisory committees, please visit us at
Food and Drug Administration, HHS.
Notice; request for comments; extension of comment period.
The Food and Drug Administration (FDA or Agency) is extending the comment period for the request for comments that appeared in the
FDA is extending the comment period on the request for comments published on June 15, 2021 (86 FR 31720). Submit either electronic or written comments by November 12, 2021.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before November 12, 2021. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be
Charles Andres, Center for Veterinary Medicine (HFV-180), Food and Drug Administration, 7500 Standish Pl, Rockville, MD 20855, 240-402-0653,
In the
Interested persons were originally given until September 13, 2021, to comment on document. The Agency has received a request for a 60-day extension of the comment period. The request conveyed concern that the current 90-day comment period does not allow sufficient time to develop a meaningful or thoughtful response to the request for comments. FDA has considered the request and is extending the comment period for the request for comments for 60 days, until November 12, 2021. The Agency believes that a 60-day extension allows adequate time for interested persons to submit comments.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) announces a forthcoming public advisory committee meeting of the Circulatory System Devices Panel of the Medical Devices Advisory Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public.
The meeting will take place virtually on November 2 and 3, 2021, from 9 a.m. to 6 p.m. Eastern Time.
Please note that due to the impact of this COVID-19 pandemic, all meeting participants will be joining this advisory committee meeting via an online teleconferencing platform. Answers to commonly asked questions including information regarding special accommodations due to a disability may be accessed at:
Akinola Awojope, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5216, Silver Spring, MD 20993-0002,
On November 3, 2021, the committee will discuss and make recommendations on the continued safety and effectiveness of endovascular stent grafts and how to strengthen real-world data collection on long-term performance of the devices, both for currently marketed devices and for future technologies. FDA intends to request panel input on the clinical outcomes that are most relevant to capture in the real world, along with their frequency and duration. Additionally, FDA intends to seek input on data collection platforms, and how to incentivize and optimize real world data collection.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available on FDA's website at the time of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material and the link to the online teleconference meeting room will be available at
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Artair Mallett at
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Pharmacokinetic-Based Criteria for Supporting Alternative Dosing Regimens of Programmed Cell Death Receptor-1 (PD-1) or Programmed Cell Death-Ligand 1 (PD-L1) Blocking Antibodies for Treatment of Patients with Cancer.” This draft guidance provides recommendations for sponsors of investigational new drug applications (INDs) and biologics license applications (BLAs) on the use of pharmacokinetic (PK)-based criteria to support the approval of alternative dosing regimens for programmed cell death receptor-1 (PD-1) or programmed cell death-ligand 1 (PD-L1) blocking antibodies. This draft guidance is based on accumulated scientific and regulatory experience for PD-1 and PD-L1 drugs, and as such, does not address development of alternative dosing regimens for any other drugs or biologics, changes in route of administration, or novel formulations of previously approved PD-1/PD-L1 products.
Submit either electronic or written comments on the draft guidance by October 25, 2021 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request. See the
Brian Booth, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2186, Silver Spring, MD 20993, 301-796-1508.
FDA is announcing the availability of a draft guidance for industry entitled “Pharmacokinetic-Based Criteria for Supporting Alternative Dosing Regimens of Programmed Cell Death Receptor-1 (PD-1) or Programmed Cell Death-Ligand 1 (PD-L1) Blocking Antibodies for Treatment of Patients with Cancer.” This draft guidance provides recommendations for sponsors of INDs and BLAs on the use of PK-based criteria to support the approval of alternative dosing regimens for PD-1 or PD-L1 blocking antibodies. The draft guidance is based on accumulated scientific and regulatory experience for PD-1 and PD-L1 drugs and, as such, does not address development of alternative dosing regimens for any other drugs or biologics, changes in route of administration, or novel formulations of previously approved PD-1/PD-L1 products.
Sponsors may seek approval of alternative intravenous (IV) dosing regimens that are different from those tested in clinical efficacy and safety trials. These alternative IV dosing regimens are typically designed to change doses (
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Pharmacokinetic-Based Criteria for Supporting Alternative Dosing Regimens of Programmed Cell Death Receptor-1 (PD-1) or Programmed Cell Death-Ligand 1 (PD-L1) Blocking Antibodies for Treatment of Patients with Cancer.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 312 have been approved under OMB control number 0910-0014 and the collections of information in 21 CFR part 601 have been approved under 0910-0338.
Persons with access to the internet may obtain the draft guidance at either
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In accordance with the Federal Advisory Committee Act, this notice announces that the Advisory Committee on Infant Mortality (ACIM or Committee) has scheduled a public meeting. Information about ACIM and the agenda for this meeting can be found on the ACIM website at
September 21, 2021, 12:00 p.m.-4:00 p.m. Eastern Time and September 22, 2021, 12:00 p.m.-4:00 p.m. Eastern Time.
This meeting will be held via webinar.
Vanessa Lee, MPH, Designated Federal Official, Maternal and Child Health Bureau, HRSA, 5600 Fishers Lane, Room 18N84, Rockville, Maryland 20857; (301) 443-0543; or
ACIM is authorized by section 222 of the Public Health Service Act (42 U.S.C. 217a), as amended. The Committee is governed
ACIM advises the Secretary of Health and Human Services on department activities and programs directed at reducing infant mortality and improving the health status of pregnant women and infants. ACIM represents a public-private partnership at the highest level to provide guidance and focus attention on the policies and resources required to address the reduction of infant mortality and the improvement of the health status of pregnant women and infants. With a focus on life course, the ACIM addresses disparities in maternal health to improve maternal health outcomes, including preventing and reducing maternal mortality and severe maternal morbidity. ACIM provides advice on how best to coordinate myriad federal, state, local, and private programs and efforts that are designed to deal with the health and social problems impacting infant mortality and maternal health, including implementation of the Healthy Start program and maternal and infant health objectives from the National Health Promotion and Disease Prevention Objectives (
The agenda for the September 21-22, 2021, meeting is being finalized and may include the following topics: Federal program updates; discussion of recommendations by ACIM to the Secretary; fatality review programs; health of indigenous mothers and infants; financing of care; and patient-physician racial concordance in health care. Refer to the ACIM website for any updated information concerning the meeting.
Members of the public will have the opportunity to provide written or oral comments. Requests to submit a written statement or make oral comments to the ACIM should be sent to Vanessa Lee, using the email address above at least three business days prior to the meeting. Public participants may submit written statements in advance of the scheduled meeting by emailing
Individuals who plan to attend and need special assistance or another reasonable accommodation should notify Vanessa Lee at the contact information listed above at least 10 business days prior to the meeting.
Notice is hereby given of a change in the meeting of the National Advisory Dental and Craniofacial Research Council, September 9, 2021, 10:00 a.m. to September 9, 2021, 4:00 p.m., National Institutes of Health, National Institute of Dental and Craniofacial Res., 6701 Democracy Blvd., Bethesda, MD 20892 which was published in the
This meeting is being amended to change the times of the Open and Closed sessions. The Open session will be from 9:00 a.m. to 2:30 p.m. and will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
National Institutes of Health, HHS.
Notice.
In compliance with 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 obtain a copy of the data collection plans and instruments, submit comments in writing, or request more information on the proposed project, contact: Dr. Cesar E. Perez-Gonzalez, Training Director, Office of the Scientific Director, National Eye Institute, NIH, Building 31, Room 6A22, MSC 0250, Bethesda, Maryland 20892 or call non-toll-free number (301) 451-6763 or Email your request, including your address to:
This proposed information collection was previously published in the
The National Eye Institute (NEI), National Institutes of Health, may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
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.
This information collection request is to implement an electronic Individual Development Plan (eIDP). The data collected comes from a detailed questionnaire focused on responses to professional goals and expectations while they are at the NEI. It is expected that the trainees will complete the eIDP annually and by doing so, it will help enhance the effectiveness of their training by setting clear goals that can be monitored not only by the trainee themselves but also by their mentor, the Training Director, and their Administrative Officer. In addition to this eIDP, the system will also implement an electronic exit survey. The data collected comes from a detailed questionnaire focused on responses to questions focused on trainee mentoring and professional experiences at the NEI as well as their plans after they depart. It is expected that the trainees will complete at the end of their tenure and that by doing so, the NEI Training Program can learn about ways to improve career development opportunities for future trainees as well as learn more about trainee job choices to better advise fellows. Additionally, we can use the survey to help determine mentor effectiveness and help identify problems in mentoring at the NEI.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 213.
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.
Coast Guard, DHS.
Notice of availability.
The Coast Guard announces the availability of Revision 8 to Maritime Security (MARSEC) Directive 104-6, which provides guidelines for U.S. vessels operating in high-risk waters (HRW) where acts of terrorism, piracy, and armed robbery against ships are prevalent. The directive contains security-sensitive information and, therefore, cannot be made available to the general public. U.S. vessel owners and operators who have needed to take action under previous versions of MARSEC Directive 104-6 should immediately contact their local Coast Guard Captain of the Port or District Commander for a copy of Revision 8. This revision contains important updates to HRW locations and organizational responsibilities regarding addressing security risks in those waters.
MARSEC Directive 104-6 (Revision 8) has been available since August 11, 2021. MARSEC Directive 104-6 (Revision 7) is no longer valid after that date.
For information about this document call or email LCDR Michael Metz; U.S. Coast Guard, Office of Commercial Vessel Compliance; telephone 202-372-1236, email
Maritime Security (MARSEC) Directive 104-6 Revision 8 replaces Revision 7, previously signed on March 4, 2014. The new directive provides direction to U.S. flagged vessels operating in High Risk Waters (HRW) where acts of terrorism, piracy, and armed robbery against ships are prevalent. This revision reflects a change in organizational responsibilities and updates the list of regions identified as HRW.
U.S. vessel owners and operators who have needed to take action under previous versions of MARSEC Directive 104-6 should immediately contact their local Coast Guard Captain of the Port or District Commander for a copy of Revision 8, which contains important updates to the locations of HRW and to the guidelines for addressing security risks in those waters. The Coast Guard advises owners and operators that, under Revision 8, they may need to take specific actions in accordance with MARSEC Directive 104-6 before their vessel enters HRW.
This notice is issued under authority of 33 CFR 101.405(a)(2) and 5 U.S.C. 552(a).
Transportation Security Administration, Homeland Security (DHS).
30-Day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0062, abstracted below, to OMB for review and approval of a revision to the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection allows TSA to conduct transportation security-related assessments during site visits with surface transportation security and operating officials.
Send your comments by September 27, 2021. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Christina A. Walsh, TSA PRA Officer, Information Technology (IT), TSA-11, Transportation Security Administration, 6595 Springfield Center Drive, Springfield, VA 20598-6011; telephone (571) 227-2062; email
TSA published a
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The Government Accountability Office, audit GAO-20-404, “Passenger Rail Security: TSA Engages with Stakeholders but Could Better Identify and Share Standards and Key Practices (April 2020),” recommended TSA update the BASE cybersecurity questions to ensure they reflect key practices.
Transportation Security Administration, Homeland Security (DHS).
30-Day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0069, abstracted below, to OMB for an extension in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection involves the submission of travel information to TSA to provide wounded warriors, severely injured military personnel, and certain other travelers with assistance through the airport security screening process.
Send your comments by September 27, 2021. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Christina A. Walsh, TSA PRA Officer, Information Technology (IT), TSA-11, Transportation Security Administration, 6595 Springfield Center Drive, Springfield, VA 20598-6011; telephone (571) 227-2062; email
The ICR describes the nature of the information collection and its expected burden. On April 8, 2021, TSA published a
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
To implement the MSIJSCO and TPO programs, TSA must collect the passenger's name, flight itinerary (scheduled flight departure and arrival information), and contact information to successfully facilitate movements through the screening process at U.S. airports and its territories. TSA shares this information with airports on the passenger's itinerary to coordinate efforts, to synchronize seamless transitions with the affected parties, and protect security operations.
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), we, the U.S. Fish and Wildlife Service (Service), are proposing to reinstate a previously approved information collection with revisions.
Interested persons are invited to submit comments on or before September 27, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501
On May 14, 2020, we published in the
Ms. Huchko emphasized that the national data generated by the FHWAR are invaluable for assessing engagement in and spending on outdoor recreation in Oregon. She stated that the FHWAR survey is also essential to USFWS WSFR program and ODFW, since coastal States must obligate Sport Fish Restoration program grant funds so that the ratio is equal to the resident marine and freshwater anglers (50 CFR 80.65-66). Ms. Huchko shared the understanding that for the 2022 and future FHWAR surveys, States will need to pay for State level data if desired, though USFWS will continue to provide the freshwater/saltwater percent of resident anglers in coastal States at no cost. This information may be used for determining the Sport Fish Restoration saltwater/freshwater split. Ms. Huchko's understanding is accurate. Finally, Ms. Huchko urged that the FHWAR continue to be administered in both mail and digital (web) modes, so as to reduce barriers to participation.
On behalf of Friends of Animals, Mr. Kreger endorsed the FHWAR data collection. He pointed to trends in decreasing participation in hunting, evolving views on hunting and fishing among Americans, and the need to gather reliable data on these topics. Kreger argues that FWS and State agencies should use the FHWAR and other surveys to assess “future needs and demands”—namely, in the areas of wildlife observation and photography.
The survey defines wildlife watching as taking a special interest in observing or viewing wildlife through any of the following activities:
• Closely observing wildlife or trying to identify types of wildlife you did not know;
• Photographing wildlife;
• Feeding birds or other wildlife;
• Maintaining natural areas such as wooded lots, hedgerows, or open fields of at least one-quarter acre for the benefit of wildlife, not including farmland;
• Maintaining plantings such as shrubs or agricultural crops for the benefit of wildlife; and
• Visiting parks and natural areas to observe, photograph, or feed wildlife.
The data from these items will allow for analyses of trends in wildlife watching among Americans, including but not limited to wildlife observation and photography. Similarly, detailed questions about hunting and fishing will allow for trend analysis surrounding those major activities.
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other Federal agencies on the proposed ICR that is described below. We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We collect the information in conjunction with carrying out our responsibilities under the Dingell-Johnson Sport Fish Restoration Act (16 U.S.C. 777-777m) and the Pittman-Robertson Wildlife Restoration Act (16 U.S.C. 669-669i). Under these acts, as amended, we provide approximately $1 billion in grants annually to States for projects that support sport fish and wildlife management and restoration, including:
• Improvement of fish and wildlife habitats,
• Fishing and boating access,
• Fish stocking, and
• Hunting and fishing opportunities.
We also provide grants for aquatic education and hunter education, maintenance of completed projects, and research into problems affecting fish and wildlife resources. These projects help to ensure that the American people have adequate opportunities for fish and wildlife recreation. We conduct the survey about every 5 years. The 2022 FHWAR survey will be the 14th conducted since 1955. We sponsor the survey at the States' request, which is made through the Association of Fish and Wildlife Agencies. We contract with the National Opinion Research Center (NORC) at the University of Chicago, which collects the information using internet, telephone, or mail-in paper-and-pencil instrument (PAPI).
Respondents are invited to take the survey with a mailed letter. NORC will select a sample of sportspersons and wildlife watchers from a household screen and conduct three detailed interviews during the survey year. The survey collects information on the number of days of participation, species of animals sought, and expenditures for trips and equipment. Information on the characteristics of participants includes age, income, sex, education, race, and State of residence. The Wave 3 Freshwater/Saltwater Ratio Questionnaire is designed to get freshwater and saltwater fishing data for coastal states. The Wildlife and Sportfish Restoration Program is required to divide fishing management funds according to the ratio of freshwater and saltwater anglers in each coastal state.
Federal and State agencies use information from the survey to make policy decisions related to fish and wildlife restoration and management. Participation patterns and trend information help identify present and future needs and demands. Land management agencies use the data on expenditures and participation to assess the value of wildlife-related recreational uses of natural resources. Wildlife-related recreation expenditure information is used to estimate the impact on the economy and to support the dedication of tax revenues for fish and wildlife restoration programs.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
National Park Service, Interior.
Request for nominations.
The National Park Service (NPS), U.S. Department of the Interior, is requesting nominations for qualified persons to serve as members of the Gateway National Recreation Area Fort Hancock 21st Century Advisory Committee (Committee).
Written nominations must be received by October 25, 2021.
Nominations should be sent to Daphne Yun, U.S. Department of the Interior, National Park Service, Gateway National Recreation Area, Office of the Superintendent, 210 New York Avenue, Staten Island, New York 10305, or email
Daphne Yun, U.S. Department of the Interior, National Park Service, Gateway National Recreation Area, Sandy Hook Unit, 26 Hudson Road, Highlands, New Jersey 07732, or email at
The Committee was established by authority of the Secretary of the Interior under 54 U.S.C. 100906, and in accordance with the Federal Advisory Committee Act (5 U.S.C. Appendix 2). The purpose of the Committee is to advise the Secretary of the Interior, through the Director of the NPS, on the development of a reuse plan and on matters relating to future uses of certain buildings at the Fort Hancock Historic District, located within the Sandy Hook Unit of Gateway National Recreation Area in New Jersey.
The Committee consists of representatives from among, but not limited to, the following interest groups to represent a range of interests concerned with the management of Fort Hancock within the park and its impact on the local area: The natural resource community, the business community, the cultural resource community, the real estate community, the recreation community, the education community, the scientific community, and hospitality organizations. The Committee will also include representatives from the following municipalities: Borough of Highlands, Borough of Sea Bright, Borough of Rumson, Middletown Township, Monmouth County Freeholders, and Borough of Monmouth Beach.
We are currently seeking members to represent all categories.
Nominations should be typed and should include a resume providing an adequate description of the nominee's qualifications, including information that would enable the Department of the Interior to make an informed decision regarding meeting the membership requirements of the Committee and permit the Department to contact a potential member. All documentation, including letters of recommendation, must be compiled and submitted in one complete package. All those interested in membership, including current members whose terms are expiring, must follow the same nomination process. Members may not appoint deputies or alternates.
Members of the Committee serve without compensation. However, while away from their homes or regular places of business in the performance of services for the Committee as approved by the NPS, members may be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in Government service are allowed such expenses under section 5703 of title 5 of the United States Code.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined not to review an initial determination (“ID”) (Order No. 14) of the presiding administrative law judge (“ALJ”), granting leave to amend the complaint and notice of investigation to add as respondents Amerisweet Co., Ltd.; Batory Foods; DMH Ingredients Inc.; Fortway Chemicals Co.; Ingredient Supply Corporation; Nutravative Ingredients; Nutrisprinter Limited; Polestar Development Limited; Qingdao Samin Chemical Co.; Rochem International Inc.; and V-Chem Trading Ltd. (collectively, the “Proposed Respondents”).
Benjamin S. Richards, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-5453. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
The Commission instituted this investigation on May 14, 2021. 86 FR 26544 (May 14, 2021). The complaint, as supplemented, was filed by complainants Celanese International Corporation of Irving, Texas; Celanese (Malta) Company 2 Limited of Qormi, Malta; and Celanese Sales U.S. Ltd. of Irving, Texas (collectively, “Celanese”), and alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain high-potency sweeteners, processes for making same, and products containing same by reason of infringement of certain claims of United States Patent Nos. 10,023,546; 10,208,004; 10,590,098; 10,233,163; and 10,590,095.
On July 9, 2021, Celanese moved for leave to add the Proposed Respondents to the complaint and notice of investigation. On July 21, 2021, Jinhe filed a brief opposing Celanese's motion on the grounds that certain of the Proposed Respondents could have been identified by Celanese in its original complaint, and that the current respondents, OUII, and the Proposed Respondents will be prejudiced by the addition of respondents at this stage of the investigation. The same day, Prinova filed a notice indicating that it joined Jinhe's opposition. Also, on the same day, OUII filed a brief supporting Celanese's motion.
On August 6, 2021, the ALJ issued the subject ID granting Celanese's motion. The subject ID is based on the ALJ's subsidiary findings that Celanese has shown good cause to add allegations to the complaint that the Proposed Respondents have violated section 337 and that the current parties are unlikely to suffer prejudice due to the addition of the Proposed Respondents to the investigation. No petitions for review of the ID were received.
The Commission has determined not to review the subject ID. The notice of investigation is hereby amended to add the following as respondents to the investigation:
1. Amerisweet Co., Ltd.;
2. Batory Foods;
3. DMH Ingredients Inc.;
4. Fortway Chemicals Co.;
5. Ingredient Supply Corporation;
6. Nutravative Ingredients;
7. Nutrisprinter Limited;
8. Polestar Development Limited;
9. Qingdao Samin Chemical Co.;
10. Rochem International Inc.; and
11. V-Chem Trading Ltd.
The Commission vote for this determination took place on August 23, 2021.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
On August 19, 2021, the U.S. Department of Justice (DOJ) lodged a proposed Amended Consent Decree with the United States District Court for the Northern District of Indiana in
The 2012 Consent Decree resolved claims for civil penalties, and injunctive relief in the form of a Long Term Control Plan for violations of the Clean Water Act and related State law claims regarding the City of South Bend's operation of its municipal wastewater and sewer system. In the proposed Amended Consent Decree, South Bend agrees to construct and operate a sewage conveyance and treatment system that, once fully implemented by 2038, would significantly increase the level of control of pollutant discharges required under the 2012 Consent Decree by, among other things, treating sewage and wastewater discharges to meet Indiana's water quality standard for
The publication of this notice opens a period for public comment on the proposed Amended Consent Decree. Comments should be addressed to Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department website:
We will provide a paper copy of the proposed Consent Decree upon written request and payment of the reproduction costs. Please mail your request and payment to: Consent Decree Library, U.S. DOJ—ENRD, P.O. Box 7611, Washington, DC 20044-7611.
Please enclose a check or money order for $23.25 (25 cents per page reproduction cost), payable to the United States Treasury.
Executive Office of the President, Office of Management and Budget.
Notice of availability.
OMB is issuing the
August 20, 2021.
The OMB Sequestration Reports to the President and Congress are available on-line on the OMB home page at:
Thomas Tobasko, 6202 New Executive Office Building, Washington, DC 20503, Email address:
Section 254 of the Balanced Budget and Emergency Deficit Control Act of 1985 requires the Office of Management and Budget (OMB) to issue a Sequestration Update Report by August 20th of each year. For fiscal year 2021, the report finds enacted appropriations to be at or below the caps after accounting for enacted supplemental appropriations.
National Science Foundation.
Notice.
The National Science Foundation (NSF) is announcing plans to renew, with a revision, this collection. In accordance with the requirements of the Paperwork Reduction Act of 1995, we are providing opportunity for public comment on this action. After obtaining and considering public comment, NSF will prepare the submission requesting Office of Management and Budget (OMB) clearance of this collection for no longer than 3 years.
Written comments on this notice must be received by October 25, 2021 to be assured consideration. Comments received after that date will be considered to the extent practicable. Send comments to the address below.
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Suite W18200, Alexandria, Virginia 22314; telephone (703) 292-7556; or send email to
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Week of August 30, 2021.
Via Teleconference.
Open.
For more information or to verify the status of meetings, contact Wesley Held at 301-287-3591 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.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled NRC Form 7, “Application for NRC Export/Import License, Amendment, Renewal or Consent Request(s).”
Submit comments by October 25, 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; however, the NRC encourages electronic comment submission through the Federal Rulemaking website:
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2021-0145 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:
The NRC encourages electronic comment submission through the Federal Rulemaking website (
The NRC cautions you not to include identifying or contact information in comment submissions 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.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Postal Service.
Notice of availability of draft environmental impact statement.
Pursuant to the requirements of the National Environmental Policy Act of 1969 (NEPA), its implementing procedures at 39 CFR 775, and the President's Council on Environmental Quality Regulations (40 CFR parts 1500-1508), the U.S. Postal Service announces availability of the Draft Environmental Impact Statement (DEIS) to purchase over 10 years 50,000 to 165,000 purpose-built, right-hand-drive vehicles—the Next Generation Delivery Vehicle (NGDV)—to replace existing delivery vehicles nationwide that are approaching the end of their service life. While the Postal Service has not yet determined the precise mix of the powertrains in the new vehicles to be purchased, under the Proposed Action, at least ten percent of the NGDVs would have battery electric (BEV) powertrains, with the remainder being internal combustion (ICE). The DEIS evaluates the environmental impacts of the Proposed Action, as well as two BEV and ICE commercial off-the-shelf (COTS) vehicle alternatives and the “no action” alternative. The Postal Service is soliciting comments on the DEIS during a 45-day public comment period.
Comments should be received no later than October 12, 2021. The Postal Service will also publish a Notice of Availability to announce the availability of the Final EIS.
Interested parties may view the DEIS at
You may inspect and photocopy all written comments, by appointment only, at USPS Headquarters Library, 475 L'Enfant Plaza SW, 11th Floor North, Washington, DC 20260 by calling 202-268-2906.
On May 6, 2021, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On July 7, 2021, pursuant to Section 19(b)(2) of the Act,
As described in more detail in the Notice,
The investment objective of the Trust would be for the Shares to reflect the performance of the value of bitcoin, less
The Shares represent units of fractional undivided beneficial interest in, and ownership of, the Trust. The Trust will hold only bitcoins, which the Bitcoin Custodian will custody on behalf of the Trust. The Trust generally will not hold cash or cash equivalents; however, the Trust may hold cash and cash equivalents on a temporary basis to pay extraordinary expenses.
The net asset value (“NAV”) of the Trust will be determined in accordance with Generally Accepted Accounting Principles as the total value of bitcoin held by the Trust, plus any cash or other assets, less any liabilities including accrued but unpaid expenses. The NAV of the Trust will be determined as of 4:00 p.m., E.T. on each day that the Shares trade on the Exchange (“Business Day”).
The Trust's website, as well as one or more major market data vendors, will provide an intra-day indicative value (“IIV”) per Share updated every 15 seconds, as calculated by the Exchange or a third party financial data provider during the Exchange's Core Trading Session (9:30 a.m. to 4:00 p.m., E.T.). The IIV will be calculated by using the prior day's closing NAV per Share as a base and updating that value during the Exchange's Core Trading Session to reflect changes in the value of the Trust's NAV during the trading day.
The Trust will issue and redeem Shares to Authorized Participants on an ongoing basis in blocks of 50,000 Shares (“Creation Units”). The creation and redemption of Creation Units will be effected in “in-kind” transactions based on the quantity of bitcoin attributable to each Share. The creation and redemption of Creation Units require the delivery to the Trust, or the distribution by the Trust, of the number of bitcoins represented by the Creation Units being created or redeemed.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, which are set forth in the Notice,
1. What are commenters' views on whether the proposed Trust and Shares would be susceptible to manipulation? What are commenters' views generally on whether the Exchange's proposal is designed to prevent fraudulent and manipulative acts and practices? What are commenters' views generally with respect to the liquidity and transparency of the bitcoin markets, the bitcoin markets' susceptibility to manipulation, and thus the suitability of bitcoin as an underlying asset for an exchange-traded product?
2. What are commenters' views of the Exchange's assertions that the regulatory and financial landscape relating to bitcoin and other digital assets have changed significantly since 2016?
3. The Exchange states that the listing and trading of the Shares would provide “an opportunity for U.S. investors to gain exposure to bitcoin in a regulated and transparent exchange-traded vehicle that limits risks” and asserts that concerns regarding potential manipulation of a bitcoin exchange-traded product “have been sufficiently mitigated and may be outweighed by growing and quantifiable investor protection concerns related to [over-the-counter bitcoin funds].”
4. The Exchange asserts that the Chicago Mercantile Exchange (“CME”), either alone as the sole market for bitcoin futures or as a group of markets together with the Constituent Platforms, represents a regulated market of significant size.
5. The Exchange states that any would-be manipulator of bitcoin prices would be reasonably likely to do so through the Commodity Futures Trading Commission-regulated bitcoin futures (“Bitcoin Futures”) market,
6. What are commenters' views on the Exchange's assertion that (a) Bitcoin Futures' important role in price discovery; (b) the overall size of the bitcoin market; (c) the ability for market participants to buy or sell large amounts of bitcoin without significant market impact; and (d) the results from a study conducted by CF Benchmarks regarding “slippage” help demonstrate that the Shares would not become the predominant force on pricing in either the bitcoin spot or Bitcoin Futures markets?
7. What are commenters' views on the Exchange's statement that significant liquidity in the spot market and the impact of market orders on the overall price of bitcoin mean that attempting to move the price of bitcoin is increasingly expensive?
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Section 6(b)(5) or any other provision of the Act, and the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by September 16, 2021. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal September 30, 2021.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 7, 2021, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-FINRA-2021-010 (“Proposed Rule Change”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
FINRA is proposing revisions to the margin requirements for Covered Agency Transactions in FINRA Rule 4210 as approved pursuant to SR-FINRA-2015-036.
Amendment No. 1 would make the following changes to the Proposed Rule Change: (1) Modify the definition of “non-margin counterparty” to exclude small cash counterparties and other exempted counterparties; and (2) define a FINRA member's “specified net capital deductions” as the net capital deductions required by paragraph (e)(2)(H)(ii)d.1 of FINRA Rule 4210 with respect to all unmargined excess net mark to market losses of its counterparties, except to the extent that the member, in good faith, expects such excess net mark to market losses to be margined by the close of business on the fifth business day after they arose.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Exchange Act to determine whether the Proposed Rule Change, as modified by Amendment No. 1, should be approved or disapproved.
Pursuant to Section 19(b)(2)(B) of the Exchange Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the Proposed Rule Change, as modified by Amendment No. 1. In particular, the Commission invites the written views of interested persons concerning whether the Proposed Rule Change, as modified by Amendment No. 1, is consistent with the Exchange Act and the rules thereunder.
Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4 under the Exchange Act,
Interested persons are invited to submit written data, views, and arguments regarding whether the Proposed Rule Change, as modified by Amendment No. 1, should be approved or disapproved by September 10, 2021. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by September 16, 2021.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-FINRA-2021-010, and should be submitted on or before September 10, 2021. Rebuttal comments should be submitted by September 16, 2021.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 29, 2021, Cboe BZX Exchange, Inc. (the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change was published for comment in the
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 with respect to its strategy fee cap. 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 Footnote 13 of its Fees Schedule in relation to its strategy order fee cap, effective August 17, 2021.
Footnote 13 provides that Market-Maker, Clearing Trading Permit Holder, JBO participant, broker-dealer and non-Trading Permit Holder market-maker transaction fees are capped at $0.00 for all merger, short stock interest, reversal, conversion and jelly roll strategies executed in open outcry on the same trading day in the same option class across all symbols in equities, ETFs and ETNs. Footnote 13 also provides that strategy orders must be marked with a code approved by the Exchange identifying the orders as eligible for fee cap, and that strategy orders executed during September 2020 will be eligible for the fee cap notwithstanding not being marked, provided that a TPH submits a rebate request with supporting documentation for such orders to the Exchange within 3 business days of September 30, 2020 (
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
In particular, the Exchange believes that removing language from its Fees Schedule in connection with manual marking requirements for strategy orders in order for TPHs to receive the fee cap is reasonable as the Exchange's billing system will now be able to automatically identify strategy orders for purposes of the strategy order fee cap. The proposed rule change makes no changes to the fee cap but merely eliminates the need for TPHs to mark orders to receive the fee cap. The proposed rule change is reasonable as it provides transparency in the Fees Schedule and alleviates potential investor confusion in connection with marking strategy orders as eligible to receive the fee cap, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system and protecting investors and the public interest. The Exchange also believes the proposed rule change is equitable and not unfairly discriminatory as it applies uniformly to all TPHs, in that, all strategy orders submitted will be automatically identified as eligible for the fee cap by the Exchange's billing system.
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 the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate as the proposed rule change applies uniformly to all TPHs, in that, all strategy orders submitted will be automatically identified as eligible for the fee cap by the Exchange's billing system. The proposed rule change makes no changes to the fee cap but merely eliminates the need for TPHs to mark orders to receive the fee cap. Further, the Exchange believes the proposed rule change will not cause an unnecessary burden on intermarket competition because it only applies to trading on Cboe Options. To the extent that the proposed changes make Cboe Options a more attractive marketplace for market participants at other exchanges, such market participants are welcome to become Cboe Options market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
• 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.
Notice of application for substituted compliance determination; proposed order.
The Securities and Exchange Commission (“Commission” or “SEC”) is soliciting public comment on an application by the Spanish Comisión Nacional del Mercado de Valores (“CNMV”) requesting that, pursuant to rule 3a71-6 under the Securities Exchange Act of 1934 (“Exchange Act”), the Commission determine that registered security-based swap dealers and registered major security-based swap participants (together, “SBS Entities”) that are not U.S. persons and that are subject to certain regulation in the Kingdom of Spain (“Spain”) may comply with certain requirements under the Exchange Act via compliance with corresponding requirements of Spain and the European Union (“EU”). The Commission also is soliciting comment on a proposed Order providing for conditional substituted compliance in connection with the application.
Submit comments on or before September 20, 2021.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Carol M. McGee, Assistant Director, Laura Compton, Senior Special Counsel, or James Curley, Special Counsel, at 202-551-5870, Office of Derivatives Policy, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-7010.
The Commission is soliciting public comment on an application by the CNMV requesting that the Commission determine that SBS Entities that are not U.S. persons and that are subject to certain regulation in Spain may satisfy certain requirements under the Exchange Act by complying with comparable requirements in Spain, including relevant EU requirements. The Commission also is soliciting comment on a proposed Order, set forth in Attachment A, providing for conditional substituted compliance in connection with the CNMV application.
On August 6, 2021, market participants began to count security-based swap positions toward the thresholds for registration with the Commission as an SBS Entity.
Substituted compliance in part is predicated on the Commission determining the analogous foreign requirements are “comparable” to the applicable requirements under the Exchange Act, after accounting for factors such as the “scope and objectives” of the relevant foreign regulatory requirements and the effectiveness of the relevant foreign authority's or authorities' supervisory and enforcement frameworks.
Commission rule 0-13
The CNMV has submitted a complete substituted compliance application to the Commission (“CNMV Application”).
The CNMV seeks substituted compliance for Covered Entities in connection with a number of requirements under Exchange Act section 15F.
The Commission will consider whether to allow substituted compliance to be used by any Covered Entity.
The CNMV requests that the Commission issue an order determining
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Because Spain is a member of the European Union, market participants in Spain are subject to Spanish requirements implemented pursuant to EU directives and to applicable EU regulations. Those include requirements related to: Organization, compliance, and conduct;
In the Commission's preliminary view, requirements under the Exchange Act and requirements under Spanish and EU law maintain similar approaches with respect to achieving regulatory goals in several respects, but follow differing approaches or incorporate disparate elements in certain other respects. The Commission has considered those similarities and differences when analyzing comparability and developing preliminary views, while recognizing that differences in approach do not necessarily preclude substituted compliance in light of the Commission's holistic, outcomes-oriented framework for assessing comparability.
Based on the Commission's analysis of the application and review of relevant Spanish and EU requirements, the proposed Order, located at Attachment A, would grant substituted compliance subject to specific conditions and limitations. When Covered Entities seek to rely on substituted compliance to satisfy particular requirements under the Exchange Act, non-compliance with the applicable Spanish requirements would lead to a violation of those Exchange Act requirements and potential enforcement action by the Commission (as opposed to automatic revocation of the substituted compliance order).
Under the proposed Order, substituted compliance could be applied by “Covered Entities”—a term that would limit the scope of the substituted compliance determination to SBS Entities that are subject to applicable Spanish requirements and oversight. Consistent with the parameters of substituted compliance under Exchange Act rule 3a71-6, the proposed “Covered Entity” definition provides that the relevant entity must be a security-based swap dealer or major security-based swap participant registered with the Commission, and that the entity cannot be a U.S. person.
Substituted compliance under the proposed Order would be subject to a number of conditions and other prerequisites, to help ensure that the relevant Spanish requirements that form the basis for substituted compliance in practice will apply to the Covered Entity's security-based swap business and activities, and to promote the Commission's oversight over entities that avail themselves of substituted compliance.
Each relevant section of the proposed Order would be subject to the condition that the Covered Entity “is subject to and complies with” the Spanish and EU requirements that are needed to establish comparability. Accordingly, the proposed Order would not provide substituted compliance when a Covered Entity is excused from compliance with relevant foreign provisions, such as, for example, if relevant Spanish or EU requirements do not apply to the security-based swap activities of a third-country branch of a Spanish SBS Entity. In that event, the Covered Entity would not be “subject to” those requirements, and the Covered Entity could not rely on substituted compliance in connection with those activities.
Substituted compliance under the proposed Order further would be subject to general conditions intended to help ensure the applicability of relevant Spanish and EU requirements, and to facilitate the Commission's oversight of firms that avail themselves of substituted compliance. In particular:
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The cross-border application of MiFID, MiFIR, MAR and EU and Member State requirements adopted pursuant to MiFID, MiFIR, or MAR raises special issues. For some provisions of MiFID and MiFIR (and other EU and Spanish requirements adopted pursuant to those provisions of MiFID and MiFIR), EU law allocates the responsibility for supervising and enforcing those requirements to authorities of the Member State in whose territory a Covered Entity provides certain services.
The proposed Order would permit a Covered Entity to use substituted compliance for one or more sets of entity-level Exchange Act requirements.
The Commission preliminarily believes that this scope of substituted compliance strikes the right balance between providing Covered Entities flexibility to tailor the application of substituted compliance to their business needs and ensuring that substituted compliance is consistent with the Commission's classification of the relevant Exchange Act requirements as either entity-level or transaction-level requirements.
The CNMV Application in part requests substituted compliance in connection with risk control requirements under the Exchange Act relating to:
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Taken as a whole, these risk control requirements help to promote market stability by mandating that SBS Entities follow practices that are appropriate to manage the market, credit, counterparty, operational, and legal risks associated with their security-based swap businesses. The Commission's comparability assessment accordingly focuses on whether the analogous foreign requirements—taken as a whole—produce comparable outcomes
In the Commission's preliminary view based on the CNMV Application and the Commission's review of applicable provisions, relevant Spanish and EU requirements would produce regulatory outcomes that are comparable to those associated with the above risk control requirements, by subjecting Covered Entities to risk mitigation and documentation practices that are appropriate to the risks associated with their security-based swap businesses. Substituted compliance accordingly would be conditioned on Covered Entities being subject to the Spanish and EU provisions that in the aggregate establish a framework that produces outcomes comparable to those associated with these risk control requirements under the Exchange Act.
While the Commission recognizes these and certain other differences between Spanish and EU requirements and the applicable risk control requirements under the Exchange Act, in the Commission's preliminary view those differences on balance would not preclude substituted compliance for these requirements, particularly as requirement-by-requirement similarity is not needed for substituted compliance.
Substituted compliance in connection with these requirements would be subject to certain additional conditions to help ensure the comparability of outcomes:
Under the proposed Order, substituted compliance in connection with trading relationship documentation requirements would not extend to disclosures regarding legal and bankruptcy status that are required by Exchange Act rule 15Fi-5(b)(5) when the counterparty is a U.S. person.
Under the proposed Order, substituted compliance further would be conditioned on the Covered Entity providing the Commission with reports regarding disputes between counterparties, on the same basis as the Covered Entity provides those reports to competent authorities pursuant to EU law.
The CNMV also requests substituted compliance in connection with requirements under the Exchange Act relating to:
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Taken as a whole, these internal supervision, chief compliance officer, and additional Exchange Act section 15F(j) requirements help to promote SBS Entities' use of structures, processes, and responsible personnel reasonably designed to promote compliance with applicable law; to identify and cure instances of non-compliance; and to manage conflicts of interest. The comparability assessment accordingly may focus on whether the analogous foreign requirements—taken as a whole—produce comparable outcomes with regard to providing that Covered Entities have structures and processes reasonably designed to promote compliance with applicable law; identify and cure instances of non-compliance; and to manage conflicts of interest, in part through the designation of an individual with responsibility and authority over compliance matters.
Based on the CNMV Application and the Commission's review of applicable provisions, in the Commission's preliminary view the relevant Spanish and EU requirements would produce regulatory outcomes that are comparable to those associated with the above-described internal supervision, chief compliance officer, conflict of interest, and information-related requirements by providing that Covered Entities have structures and processes that reasonably are designed to promote compliance with applicable law and to identify and cure instances of non-compliance and manage conflicts of interest.
The Commission recognizes that certain differences are present between those Spanish requirements and the applicable requirements under the Exchange Act. In the Commission's preliminary view, on balance, however, those differences would not preclude substituted compliance within the relevant outcomes-oriented context.
Substituted compliance in connection with these requirements would be subject to certain additional conditions to help ensure the comparability of outcomes:
Under the proposed Order, substituted compliance for internal supervision requirements would be conditioned on Covered Entities complying with applicable Spanish and EU internal supervision requirements
Even with substituted compliance, Covered Entities still would be subject directly to a number of requirements under the Exchange Act and to the conditions of the proposed Order. In some cases, particular requirements under the Exchange Act are outside the ambit of substituted compliance.
Under the proposed Order, substituted compliance in connection with the compliance report requirements under Exchange Act section 15F(k)(3) and Exchange Act rule 15Fk-1(c) also would be subject to the conditions that the compliance reports required pursuant to MiFID Org Reg article 22(2)(c) must: (1) Be provided to the Commission at least annually and in the English language;
The Commission recognizes that Covered Entities preparing multiple Spanish compliance reports each year may find it difficult to submit to those reports to the Commission throughout the year, each with a chief compliance officer or senior officer certification and a section addressing the Covered Entity's compliance with U.S. requirements. However, on balance the Commission believes that these elements are necessary to achieve a regulatory outcome comparable to the Exchange Act.
Under the proposed Order, substituted compliance would not extend to Exchange Act section 15F(j)(6) (and related internal supervision requirements of Exchange Act rule 15Fh-3(h)(2)(iii)(I)). Allowing an alternative means of compliance would not lead to outcomes comparable to that statutory prohibition.
The CNMV further requests substituted compliance in connection with provisions under the Exchange Act relating to:
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Taken as a whole, the counterparty protection requirements under section 15F of the Exchange Act help to “bring professional standards of conduct to, and increase transparency in, the security-based swap market and to require [SBS Entities] to treat parties to these transactions fairly.”
Based on the CNMV Application and the Commission's review of applicable provisions, in the Commission's preliminary view, the relevant Spanish and EU requirements produce regulatory outcomes that are comparable to counterparty protection requirements under Exchange Act section 15F(h) related to disclosure of material risks and characteristics, disclosure of material incentives or conflicts of interest, “know your counterparty,” suitability, fair and balanced communications, and daily mark disclosure, by subjecting Covered Entities to obligations that promote standards of professional conduct, transparency, and the fair treatment of parties. The proposed Order accordingly would provide conditional substituted compliance in connection with those requirements.
In taking this proposed approach, the Commission recognizes that there are certain differences between relevant Spanish and EU requirements, on the one hand, and the relevant disclosure, “know your counterparty,” suitability, and communications requirements under the Exchange Act, on the other hand. On balance, however, in the Commission's preliminary view, those differences, when coupled with the conditions in the proposed Order, are not so material as to be inconsistent with substituted compliance within the requisite outcomes-oriented framework. As elsewhere, the counterparty protection provisions of the proposed Order in part condition substituted compliance on Covered Entities being subject to, and complying with, specified Spanish and EU requirements that are necessary to establish comparability.
Under the proposed Order, substituted compliance in connection with the suitability provisions of Exchange Act rule 15Fh-3(f) in part would be conditioned on the requirement that the counterparty be a
The proposed Order would provide substituted compliance in connection with daily mark disclosure requirements pursuant to Exchange Act rule 15Fh-3(c) to the extent that the Covered Entity participates in daily portfolio reconciliation exercises that include the relevant security-based swap pursuant to Spanish and EU requirements.
The proposed Order would not provide substituted compliance in connection with clearing rights disclosure requirements pursuant to Exchange Act rule 15Fh-3(d). The CNMV Application cites certain provisions related to clearing rights in the EU that are unrelated to, and do not require disclosure of, the clearing rights provided by Exchange Act section 3C(g)(5).
The CNMV Application in part requests substituted compliance for requirements applicable to SBS Entities with a prudential regulator under the Exchange Act relating to:
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Taken as a whole, the recordkeeping, reporting, and notification requirements that apply to SBS Entities with a prudential regulator are designed to promote the prudent operation of the firm's security-based swap activities, assist the Commission in conducting compliance examinations of those activities, and alert the Commission to potential financial or operational problems that could impact the firm and its customers. The comparability assessment accordingly may focus on whether the analogous foreign requirements—taken as a whole—produce comparable outcomes with regard to recordkeeping, reporting, notification, and related practices that support the Commission's oversight of these registrants. A foreign jurisdiction need not have analogues to every requirement under Commission rules to receive a positive substituted compliance determination.
Based on the CNMV Application and the Commission's review of applicable provisions, in the Commission's preliminary view, the relevant EU and Spanish requirements, subject to the conditions and limitations of the proposed Order, would produce regulatory outcomes that are comparable to the outcomes associated with the vast majority of the recordkeeping, reporting, and notification requirements under the Exchange Act applicable to SBS Entities with a prudential regulator pursuant to Exchange Act section 15F(g) and Exchange Act rules 18a-5, 18a-6, 18a-7, and 18a-8.
In reaching this preliminary conclusion, the Commission recognizes that there are certain differences between the EU and Spanish requirements and the Exchange Act requirements. In the Commission's preliminary view, on balance, those differences generally would not be inconsistent with substituted compliance for these requirements. Requirement-by-requirement similarity is not needed for substituted compliance.
However, the Commission is structuring its preliminary substituted compliance determinations in the proposed Order to provide Covered Entities with greater flexibility to select which distinct requirements within the broader rule for which they would apply substituted compliance. This would not preclude a Covered Entity from applying substituted compliance for the entire rule (subject to conditions and limitations). However, it would permit the Covered Entity to apply substituted compliance with respect to certain requirements of a given rule and to comply directly with the remaining requirements. This granular approach to making substituted compliance determinations with respect to discrete requirements within Exchange Act rules 18a-5, 18a-6, 18a-7, and 18a-8 (collectively, the “recordkeeping, reporting, and notification rules”) is intended to permit Covered Entities to leverage existing recordkeeping and reporting systems that are designed to comply with the broker-dealer recordkeeping and reporting requirements on which the recordkeeping and reporting requirements applicable to SBS Entities
As applied to Exchange Act rules 18a-5 and 18a-6, this approach of providing greater flexibility results in preliminary substituted compliance determinations with respect to the different categories of records these rules require SBS Entities with a prudential regulator to make, keep current, and/or preserve. The objective of these rules—taken as a whole—is to assist the Commission in monitoring and examining for compliance with substantive Exchange Act requirements applicable to SBS Entities with a prudential regulator (
As discussed in more detail below, the Commission's preliminary view is that substituted compliance is appropriate for most of the requirements applicable to SBS Entities with a prudential regulator within the recordkeeping, reporting, and notification rules. However, certain of the discrete requirements in these rules are fully or partially linked to substantive Exchange Act requirements for which substituted compliance is not available or for which a positive substituted compliance determination would not be made under the proposed Order. In these cases, a preliminary positive substituted compliance determination is not be made for the requirement that is fully linked to the substantive requirement or to the part of the requirement that is linked to the substantive requirement. In particular, a preliminary positive substituted compliance determination is not being made, in full or in part, for recordkeeping, reporting, or notification requirements linked to the following Exchange Act rules for which substituted compliance is not available or a preliminary positive substituted compliance determination is not being made: (1) Exchange Act rule 15Fh-4 (“Rule 15Fh-4 Exclusion”); (2) Exchange Act rule 15Fh-5 (“Rule 15Fh-5 Exclusion”); (3) Exchange Act rule 15Fh-6 (“Rule 15Fh-6 Exclusion”); (4) Exchange Act rule 18a-4 (“Rule 18a-4 Exclusion”); (5) Regulation SBSR (“Regulation SBSR Exclusion”); (6) Form SBSE and its variations (“Form SBSE Exclusion”); (7) Exchange Act rule 15Fh-1 Exclusion (“Rule 15Fh-1 Exclusion”), and (8) Exchange Act rule 15Fh-2 (“Rule 15Fh-2 Exclusion”). This proposed approach is consistent with the approach taken by the Commission in the French and UK Substituted Compliance Orders.
In addition, certain of the requirements in the recordkeeping, reporting, and notification rules are expressly linked to substantive Exchange Act requirements where a preliminary positive substituted compliance determination is being made under the proposed Order. In these cases, substituted compliance with the linked requirement in the recordkeeping, reporting, or notification rule is conditioned on the Covered Entity applying substituted compliance to the linked substantive Exchange Act requirement. This is the case regardless of whether the requirement is fully or partially linked to the substantive Exchange Act requirement. The recordkeeping, reporting, and notification requirements that are linked to a substantive Exchange Act requirement are designed and tailored to assist the Commission in monitoring and examining an SBS Entity's compliance with the substantive Exchange Act requirement. EU and Spanish recordkeeping, reporting, and notification requirements are designed to perform a similar role with respect to the substantive EU and Spanish requirements to which they are linked. Consequently, this condition is designed to ensure that the records, reports, and notifications of a Covered Entity align with the substantive Exchange Act or EU or Spanish requirement to which they are linked. For these reasons, under the proposed Order, substituted compliance for recordkeeping, reporting, and notification requirements linked to the following Exchange Act rules would be conditioned on the Covered Entity applying substituted compliance to the linked substantive Exchange Act rule: (1) Exchange Act rule 15Fh-3, except paragraphs (a) and (d) for which substituted compliance was not requested (“Rule 15Fh-3 Condition”); (2) Exchange Act rule 15Fi-2 (“Rule 15Fi-2 Condition”); (3) Exchange Act rule 15Fi-3 (“Rule 15Fi-3 Condition”); (4) Exchange Act rule 15Fi-4 (“Rule 15Fi-4 Condition”); (5) Exchange Act rule 15Fi-5 (“Rule 15Fi-5 Condition”); and (6) Exchange Act rule 15Fk-1 (“Rule 15Fk-1 Condition”). This proposed approach is consistent with the approach taken by the Commission in the French and UK Substituted Compliance Orders.
Exchange Act rule 18a-5 requires SBS Entities to make and keep current various types of records. The requirements for SBS Entities without a prudential regulator are set forth in paragraph (a) of the rule.
However, certain of the requirements in these paragraphs are linked to substantive Exchange Act requirements for which substituted compliance is not available or a preliminary positive substituted compliance determination would not be made under the proposed
In addition, certain of the requirements in Exchange Act rule 18a-5 are fully or partially linked to substantive Exchange Act requirements where a preliminary positive substituted compliance determination would be made under the proposed Order. In these cases, substituted compliance with the requirement in Exchange Act rule 18a-5 would be conditioned on the Covered Entity applying substituted compliance to the linked substantive Exchange Act requirement.
In addition, the proposed Order would allow a Covered Entity to apply substituted compliance on a transaction-by-transaction basis for the Commission's recordkeeping requirements that are linked with the counterparty protection requirements in Exchange Act rule 15Fh-3.
Under the proposed Order, substituted compliance in connection with the record making requirements of Exchange Act rule 18a-5 would be subject to the condition that the Covered Entity: (1) Preserves all of the data elements necessary to create the records required by Exchange Act rules 18a-5(b)(1), (2), (3), and (7); and (2) upon request furnishes promptly to representatives of the Commission the records required by those rules (“SEC Format Condition”).
The following table summarizes the Commission's preliminary positive substituted compliance determinations with respect to requirements of Exchange Act rule 18a-5 by listing in each row: (1) The paragraph of the proposed Order that sets forth the preliminary determination; (2) the paragraph(s) of Exchange Act rule 18a-5 to which the preliminary determination applies; (3) a brief description of the records required by the paragraph(s); and (4) a brief description of any additional conditions to applying substituted compliance to the requirements, including any partial exclusions because portions of the requirements are linked to substantive Exchange Act requirements for which the proposed Order would not provide substituted compliance.
The following table summarizes the Commission's preliminary determinations with respect to requirements of Exchange Act rule 18a-5 for which a positive substituted compliance determination would not be made because they are fully linked to substantive Exchange Act requirements for which the proposed Order would not provide substituted compliance by listing in each row: (1) The paragraph of the proposed Order that sets forth the determination; (2) the paragraph of Exchange Act rule 18a-5 to which the determination applies; (3) a brief description of the records required by the paragraph; and (4) a brief description of why the requirement is excluded from substituted compliance.
Exchange Act rule 18a-6 requires an SBS Entity to preserve certain types of records if it makes or receives them (in addition to the records the SBS Entity is required to make and keep current pursuant to Exchange Act rule 18a-5).
Paragraphs (a) through (d) of Exchange Act rule 18a-6 identify the records that an SBS Entity must retain if it makes or receives them and prescribes the retention periods for these records as well as for the records that must be made and kept current pursuant to Exchange Act rule 18a-5. Certain of these paragraphs prescribe requirements separately for SBS Entities without a prudential regulator and SBS Entities with a prudential regulator.
However, certain of these requirements are fully or partially linked to substantive Exchange Act requirements for which a preliminary positive substituted compliance determination would not be made under the proposed Order. In these cases, a positive substituted compliance determination would not be made for the linked requirement in Exchange Act rule 18a-6.
In addition, certain of the requirements in Exchange Act rule 18a-6 are fully or partially linked to substantive Exchange Act requirements where a positive substituted compliance determination would be made under the proposed Order. In these cases, substituted compliance with the requirement in Exchange Act rule 18a-6 would be conditioned on the Covered Entity applying substituted compliance to the linked substantive Exchange Act requirement.
Paragraph (e) of Exchange Act rule 18a-6 sets forth the requirements for preserving records electronically. Paragraph (f) sets forth requirements for
Paragraph (g) of Exchange Act rule 18a-6 requires an SBS Entity to furnish promptly to a representative of the Commission legible, true, complete, and current copies of those records of the SBS Entity that are required to be preserved under Exchange Act rule 18a-6, or any other records of the SBS Entity that are subject to examination or required to be made or maintained pursuant to section 15F of the Exchange Act that are requested by a representative of the Commission. The proposed Order would not make substituted compliance available for the requirements of paragraph (g) of Exchange Act rule 18a-6 because there is no comparable requirement in the EU or Spain to produce these records to a representative of the Commission.
The following table summarizes the Commission's preliminary positive substituted compliance determinations with respect to requirements of Exchange Act rule 18a-6 by listing in each row: (1) The paragraph of the proposed Order that sets forth the determination; (2) the paragraph(s) of Exchange Act rule 18a-6 to which the determination applies; (3) a brief description of the records required by the paragraph(s); and (4) a brief description of any additional conditions to applying substituted compliance to the requirements, including any partial exclusions because portions of the requirements are linked to substantive Exchange Act requirements for which the proposed Order would not provide substituted compliance.
The following table summarizes the Commission's preliminary determinations with respect to requirements of Exchange Act rule 18a-6 for which a positive substituted compliance determination would not be made because they are fully linked to substantive Exchange Act requirements for which the proposed Order would not provide substituted compliance by listing in each row: (1) The paragraph of the proposed Order that sets forth the determination; (2) the paragraph of Exchange Act rule 18a-6 to which the determination applies; (3) a brief description of the records required by those paragraph; and (4) a brief description of why the requirement is excluded from substituted compliance.
Exchange Act rule 18a-7 requires SBS Entities, on a monthly basis (if not prudentially regulated) or on a quarterly basis (if prudentially regulated), to file an unaudited financial and operational report on the FOCUS Report Part II (if not prudentially regulated) or Part IIC (if prudentially regulated). The Commission will use the FOCUS Reports filed by the SBS Entities to both monitor the financial and operational condition of individual SBS Entities and to perform comparisons across SBS Entities. The FOCUS Report Part IIC elicits less information than the FOCUS Report Part II because the Commission does not have responsibility for overseeing the capital and margin requirements applicable to these entities.
The FOCUS Report Parts II and IIC are standardized forms that elicit specific information through numbered line items. This facilitates cross-firm analysis and comprehensive monitoring of all SBS Entities registered with the Commission. Further, the Commission has designated the Financial Industry Regulatory Authority, Inc. (“FINRA”) to receive the FOCUS Reports from SBS Entities.
Paragraph (a)(2) of Exchange Act rule 18a-7 requires SBS Entities with a prudential regulator to file the FOCUS Report Part IIC on a quarterly basis. The proposed Order would provide substituted compliance for this requirement subject to the condition that the Covered Entity file with the Commission periodic unaudited financial and operational information in the manner and format specified by the Commission by order or rule (“Manner and Format Condition”) and present the financial information in accordance with generally accepted accounting principles (“GAAP”) that the firm uses to prepare general purpose publicly available or available to be issued financial statements in Spain (“Spanish GAAP Condition”).
The following table summarizes the Commission's proposed preliminary positive substituted compliance determinations with respect to requirements of Exchange Act rule 18a-7 by listing in each row: (1) The paragraph of the proposed Order that sets forth the determination; (2) the paragraph of Exchange Act rule 18a-7 to which the determination applies; (3) a brief description of the report required by the paragraph; and (4) a brief description of any additional conditions to applying substituted compliance to the requirements.
Exchange Act rule 18a-8 requires SBS Entities to send notifications to the Commission if certain adverse events occur.
Under the proposed Order, substituted compliance in connection with the notification requirements of Exchange Act rule 18a-8 would be subject to the condition that the Covered Entity: (1) Simultaneously sends a copy of any notice required to be sent by EU or Spanish notification laws to the Commission in the manner specified on the Commission's website (
In addition, the Order does not provide substituted compliance for paragraph (g) of Exchange Act rule 18a-8 that an SBS Entity that is a security-based swap dealer provide notification if it fails to make a required deposit into its special reserve account for the exclusive benefit of security-based swap customers under Exchange Act rule 18a-4. Substituted compliance is not available for Exchange Act rule 18a-4.
In addition, the proposed Order would not provide substituted compliance for paragraph (g) of Exchange Act rule 18a-8 that an SBS Entity that is a security-based swap dealer provide notification if it fails to make a required deposit into its special reserve account for the exclusive benefit of security-based swap customers under Exchange Act rule 18a-4. Substituted compliance is not available for Exchange Act rule 18a-4.
The following table summarizes the Commission's proposed preliminary positive substituted compliance determinations with respect to requirements of Exchange Act rule 18a-8 by listing in each row: (1) The paragraph of the proposed Order that sets forth the determination; (2) the paragraph of Exchange Act rule 18a-8 to which the determination applies; (3) a brief description of the notification required by the paragraph; and (4) a brief description of any additional conditions to applying substituted compliance to the requirements.
The following table summarizes the Commission's preliminary determinations with respect to requirements of Exchange Act rule 18a-8 for which a positive substituted compliance determination would not be made because they are fully linked to substantive Exchange Act requirements for which the proposed Order would not provide substituted compliance by listing in each row: (1) The paragraph of the proposed Order that sets forth the determination; (2) the paragraph of Exchange Act rule 18a-8 to which the determination applies; (3) a brief description of the notification required by the paragraph; and (4) the exclusion from substituted compliance.
Exchange Act Section 15F(g) requires SBS Entities, including SBS Entities with a prudential regulator, to maintain daily trading records.
The proposed Order would not extend to, and Covered Entities would remain subject to, the requirement of Exchange Act section 15F(f) to keep books and records open to inspection by any representative of the Commission and the requirement of Exchange Act rule 18a-6(g) to furnish promptly to a representative of the Commission legible, true, complete, and current copies of those records of the Covered Entity that are required to be preserved under Exchange Act rule 18a-6, or any other records of the Covered Entity that are subject to examination or required to be made or maintained pursuant to Exchange Act section 15F that are requested by a representative of the Commission.
Consequently, every Covered Entity registered with the Commission, whether complying directly with Exchange Act requirements or relying on substituted compliance as a means of complying with the Exchange Act, would be required to satisfy the inspection and production requirements imposed on such entities under the Exchange Act. Covered Entities would be able to make, keep, and preserve records, subject to the proposed conditions described above, in a manner prescribed by applicable EU and Spanish requirements. As an element of its substituted compliance application, the CNMV has provided the Commission with adequate assurances that no law or policy would impede the ability of any entity that is directly supervised by the authority and that
The proposed Order provides that to the extent documents are not prepared in the English language, Covered Entities would need to furnish to a representative of the Commission upon request an English translation of any record, report, or notification of the Covered Entity that is required to be made, preserved, filed, or subject to examination pursuant to Exchange Act section 15F or the proposed Order.
As noted above, Exchange Act rule 3a71-6 provides that the Commission's assessment of the comparability of the requirements of the foreign financial regulatory system must account for “the effectiveness of the supervisory program administered, and the enforcement authority exercised” by the foreign financial regulatory authority. This prerequisite accounts for the understanding that substituted compliance determinations should reflect the reality of the foreign regulatory framework, in that rules that appear high-quality on paper nonetheless should not form the basis for substituted compliance if—in practice—market participants are permitted to fall short of their regulatory obligations. This prerequisite, however, also recognizes that differences among the supervisory and enforcement regimes should not be assumed to reflect flaws in one regime or another.
In connection with these considerations, the CNMV Application includes information regarding the Spanish supervisory and enforcement framework applicable to derivatives markets and market participants. This includes information regarding the supervisory and enforcement authority afforded to authorities in Spain to promote compliance with applicable requirements, applicable supervisory and enforcement tools and capabilities, consequences of non-compliance, and the application of supervisory and enforcement practices in the cross-border context. After review of this information, the Commission preliminarily believes that the framework is reasonably designed to promote compliance with the laws where substituted compliance has been requested.
In preliminarily concluding that the relevant supervisory and enforcement considerations are consistent with substituted compliance, the Commission particularly has considered the following factors:
Supervision of Covered Entities located in Spain is conducted by the CNMV and the ECB. The Bank of Spain informed the staff that it does not have supervisory authority over significant credit institutions in the areas where substituted compliance has been requested, although, as explained below, it does play a role in the supervision of anti-money laundering laws. In addition, the CNMV and the Bank of Spain cooperate closely and have frequent communications regarding the supervision of firms to accomplish their respective missions. The ECB, through joint supervisory teams (“JSTs”), supervises firms for compliance with the CRD and CRR, including all capital requirements. The CNMV and the ECB have the ability to request records needed for supervision from firms through the supervisory process. In addition, the CNMV and the ECB set annual priorities and conduct thematic reviews, which are used to enhance supervision in specific regulatory areas. The results of these thematic reviews are made public to provide transparency to the industry.
The CNMV uses a risk-based approach to supervision to determine which firms will receive the most supervisory attention. Under the CNMV's risk framework, the largest banks providing investment services are included in the top tier. The CNMV is in daily contact with the largest firms through phone calls and emails and also conducts meetings with senior management. The CNMV uses a number of tools to supervise Covered Entities. For the largest firms, the CNMV conducts periodic monitoring of the confidential reports submitted by the firms to the CNMV regarding the conduct of business rules. This information is analyzed against existing information at the CNMV and, if red flags are spotted, different actions can be taken. For example, the information in the reports may be used to determine whether the firm should undergo an onsite inspection or a limited review. If red flags are spotted at several firms, a thematic review may be launched to obtain more information from these entities.
The CNMV creates an annual supervision plan based on the information available on each one of the entities under the CNMV's supervision (
Firms are required to give a formal response to the LoF containing their
The coordination of compliance with the anti-money laundering laws is done by the Commission for the Prevention of Money Laundering and Monetary Offenses (“COPBLAC”), through cooperation arrangements with the Bank of Spain and the CNMV. The Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences (“SEPBLAC”) works with the Bank of Spain and the CNMV to supervise Covered Entities for compliance with the anti-money laundering laws. The Bank of Spain and CNMV follow a risk-based approach to perform supervisory activities, with their main supervisory task to determine the AML/CFT risk profile of the firm. The Bank of Spain and CNMV also conduct onsite inspections based on an annual supervisory plan, which is approved by COPBLAC. After an inspection, the Bank of Spain and CNMV share a summary of conclusions and, where appropriate, recommendations, with the firm. The firm addresses the recommendations through a remediation plan that is monitored by the Bank of Spain or CNMV. The inspection report is shared with COPBLAC, who ultimately decides on what binding supervisory measures or sanctions to impose.
Supervision of the CRD and CRR is conducted through the ECB's single supervisory mechanism and executed by JSTs comprising of ECB staff, Bank of Spain staff, and staff from other countries in the EU where the significant institution has a subsidiary or branch. The Bank of Spain assigns multiple supervisors to the JST for a significant institution headquartered in Spain. The head of the JST is from the ECB and generally is not from the country where the significant institution is located. As part of its day-to-day supervision, the JST analyzes the supervisory reporting, financial statements, and internal documentation of supervised entities. The JSTs hold regular and ad hoc meetings with the supervised entities at various levels of staff seniority. They conduct ongoing risk analyses of approved risk models, and analyze and assess the recovery plans of supervised entities. The various supervisory activities typically result in supervisory measures addressed to the supervised institution. Supervisory activities and decisions result in a number of routine steps such as the monitoring of compliance by the JST and, if necessary, enforcement measures and sanctions. In addition to ongoing supervision, the JST may conduct in-depth reviews on certain topics by organizing a dedicated onsite mission (
CNMV is empowered to investigate and sanction very serious, serious, and minor infringements of law. The most common source of information regarding infringements is the supervisory activity of the Supervision Department and the Secondary Markets Department. In addition, CNMV may initiate investigations based on whistleblower complaints. According to CNMV, when a breach is committed by a credit institution, a report from the Bank of Spain is a prerequisite for imposing sanctions for serious or very serious infringements. The Bank of Spain has informed the staff that it does not have enforcement authority over significant credit institutions in the areas where substituted compliance has been requested. As described below, enforcement of the CRD and CRR for violations detected by the joint supervisory teams is conducted by the ECB. In addition, violations related to anti-money laundering are investigated and sanctioned by SEPBLAC, which has sole enforcement decision-making power with regard to the Spanish Money Laundering Act.
CNMV has an array of investigative capacities that enable it to detect and enforce against breaches of relevant laws. It is empowered to perform its enforcement functions with respect to both legal and natural persons, including those persons holding directorships or executive positions in Covered Firms. Among the investigative tools available to CNMV are: The power to inspect on premises of a Covered Firm, the power to compel documents, information, and statements, and the power to obtain electronic communications for third parties with the subject's consent, or pursuant to judicial authorization. Upon receiving and considering a supervisory report containing sound evidence of a possible infringement, CNMV's enforcement unit prepares a legal assessment regarding the findings contained the report, and provides the assessment and the report to CNMV's Executive Committee. The Executive Committee then determines whether to initiate a sanctioning procedure. At the conclusion of such procedures, a wide range of possible sanctions may be imposed including, among others: Public reprimand, pecuniary sanctions up to 30M€, suspension or restriction of the type or volume of transactions the sanctioned party may carry out in the securities markets, disqualification from holding a directorship or executive post a financial institution for up to ten years, or disgorgement of profits made or losses avoided as a result of the infringement. CNMV is not empowered to enter into settlement agreements, but may impose a penalty discounted by 40% where the sanctioned party undertakes early payment, recognizes liabilities and waives the right to appeal within the administrative bodies. In the event the procedure continues, a 20% discount may be granted upon early payment (and waiver of the right to appeal the decision before the administrative body) at any time prior to the adoption of final decision. CNMV publicizes all serious and very serious infringements without undue delay provided publication is proportionate and would not jeopardize financial stability.
Misconduct detected by the JSTs is addressed primarily by the ECB. Under the SSM Regulations, the ECB is empowered to address issues of noncompliance with applicable European Union law by directly imposing enforcement measures on supervised entities or requiring the CNMV to use its national enforcement powers. It also may choose to impose administrative penalties or request that the CNMV open sanctioning proceedings. In particular, the ECB may impose administrative pecuniary penalties, and may impose fines and periodic penalty payments per day of infringement. Where appropriate, the ECB may exercise its enforcement authority in parallel with supervisory measures.
Where infringements of the SMLA occur, the SEPBLAC is empowered to conduct necessary inspections to verify compliance with the obligations relating to the functions assigned to it. In this regard, the obliged persons and their
Commenters are invited to address all aspects of the application, the Commission's preliminary views and the proposed Order.
The Commission requests comment regarding the preliminary views and proposed Order in connection with each of the general “regulatory outcome” categories addressed above. Commenters particularly are invited to address, among other issues, whether the relevant Spanish and EU provisions generally are sufficient to produce regulatory outcomes that are comparable to the outcomes associated with requirements under the Exchange Act, and whether the conditions and limitations of the proposed Order would adequately address potential gaps in the relevant regulatory outcomes or would otherwise result in any implementation or other practical issues. Further, the Commission requests comment regarding whether the proposed conditions and limitations guard against comparability gaps arising from the cross-border application of Spanish and EU requirements (including when SBS Entities conduct security-based swap business through branches located in the United States or in third countries). Should the Commission require Covered Entities to be subject to and comply with additional or alternative limitations and/or conditions to achieve a comparable regulatory outcome, or are any of the proposed limitations or conditions unnecessary to achieve a comparable regulatory outcome? Explain why or why not.
With respect to the proposed conditions and limitations, commenters also are invited to address any differences between Spanish regulatory requirements and frameworks and the German, French, or UK requirements and frameworks that formed the basis for the Commission's conditional grant of substituted compliance for Germany, France, and the UK and/or for the Commission's proposal to amend its conditional grant of substituted compliance for Germany.
The Commission further requests comment regarding the proposed grant of substituted compliance in connection with requirements under the Exchange Act related to internal risk management, trade acknowledgement and verification, portfolio reconciliation and dispute reporting, portfolio reconciliation, and trading relationship documentation. Commenters particularly are invited to address the basis for substituted compliance in connection with those risk control requirements, and the proposed conditions and limitations connected to substituted compliance for those requirements. Do Spanish and EU laws taken as a whole produce regulatory outcomes that are comparable to Exchange Act requirements? In this regard, commenters are invited to address the Spanish and EU laws that a Covered Entity would have to be subject to and comply with in connection with each substituted compliance determination for a particular set of risk control requirements. With respect to each substituted compliance determination, the Commission seeks comment on the following matters: (1) Will the Covered Entity's status being subject to, and its compliance with, the Spanish and EU laws listed in the determination result in a comparable regulatory outcome; (2) are there additional or alternative Spanish and/or EU laws that Covered Entities should be required to be subject to and comply with to achieve a comparable regulatory outcome; and (3) are any of the Spanish and/or EU laws listed in the determination unnecessary to achieve a comparable regulatory outcome? Explain why or why not.
With respect to trading relationship documentation requirements, the Commission invites commenters to address the proposed exclusion of certain legal and bankruptcy status disclosures from the proposed substituted compliance for trading relationship documentation requirements when the counterparty is a U.S. person. Do any additional or alternative Spanish and/or EU requirements require Covered Entities to make the legal and bankruptcy disclosures described in Exchange Act rule 15Fi-5(b)(5)?
With respect to portfolio reconciliation and dispute reporting requirements, the Commission also invites commenters to address the condition requiring a Covered Entity to provide the Commission with reports regarding disputes between counterparties on the same basis as the Covered Entity provides those reports to competent authorities pursuant to Spanish and EU law. Would differences in the timing of dispute reports made pursuant to Exchange Act requirements as compared to reports made pursuant to Spanish and EU law make Spanish and EU portfolio reconciliation and dispute reporting requirements not comparable to Exchange Act requirements?
Commenters further are invited to address any differences between Spanish regulatory requirements and frameworks and the German, French, and UK requirements and frameworks that formed the basis for the Commission's conditional grants of substituted compliance for certain risk control requirements in those countries and/or for the Commission's proposal to amend its conditional grant of substituted compliance for Germany.
The Commission requests comment regarding the proposed grant of substituted compliance in connection with requirements under the Exchange Act related to internal supervision and chief compliance officer requirements. Commenters particularly are invited to address the basis for substituted compliance in connection with internal supervision and chief compliance officer requirements, and the proposed conditions and limitations connected to substituted compliance for those requirements. Do Spanish and EU laws taken as a whole produce regulatory outcomes that are comparable to Exchange Act requirements? In this regard, commenters are invited to address the Spanish and EU laws that a Covered Entity would have to be subject to and comply with in connection with the substituted compliance determinations for internal supervision and chief compliance officer requirements. With respect to each substituted compliance determination, the Commission seeks comment on the following matters: (1) Will the Covered Entity's status being subject to, and its compliance with, the Spanish and EU laws listed in the determination result in a comparable regulatory outcome; (2) are there additional or alternative Spanish and/or EU laws that Covered Entities should be required to be subject to and comply with to achieve a comparable regulatory outcome; and (3) are any of the Spanish and/or EU laws listed in the determination unnecessary to achieve a comparable regulatory outcome? Explain why or why not.
With respect to internal supervision requirements, the Commission invites commenters to address the proposed condition that would require a Covered Entity to comply with applicable Spanish and EU internal supervision requirements
With respect to chief compliance officer requirements, the Commission also invites commenters to address the proposed conditions requiring the Covered Entity to provide the Commission with each of its MiFID Org Reg compliance reports. The Commission seeks comment on the following matters: (1) Would an additional or alternative certification and/or scope of each compliance report produce a more comparable outcome; (2) are the proposed certification and/or scope requirements unnecessary to achieve a comparable regulatory outcome; (3) would an alternative deadline for the Covered Entity to provide these reports to the Commission produce a more comparable regulatory outcome? Explain why or why not.
Commenters further are invited to address the Commission's preliminary determination not to grant substituted compliance for Exchange Act antitrust requirements. The Commission seeks comment on the following matters: (1) Will the Covered Entity's status being subject to, and its compliance with, the Spanish and EU laws listed in the CNMV Application result in a comparable regulatory outcome; and (2) are there additional or alternative Spanish and/or EU laws that Covered Entities could be required to be subject to and comply with to achieve a comparable regulatory outcome? Explain why or why not.
Commenters further are invited to address any differences between Spanish regulatory requirements and frameworks and the German, French, and/or UK requirements and frameworks that formed the basis for the Commission's conditional grants of substituted compliance for certain internal supervision and chief compliance officer requirements in those countries and/or for the Commission's proposal to amend its conditional grant of substituted compliance for Germany.
The Commission requests comment regarding the proposed grant of substituted compliance in connection with certain counterparty protection requirements under the Exchange Act. Commenters particularly are invited to address the basis for substituted compliance in connection with counterparty protection requirements, and the proposed conditions and limitations connected to substituted compliance for those requirements. Do Spanish and EU laws taken as a whole produce regulatory outcomes that are comparable to Exchange Act requirements? In this regard, commenters are invited to address the Spanish and EU laws that a Covered Entity would have to be subject to and comply with in connection with each substituted compliance determination for a particular set of counterparty protection requirements. With respect to each substituted compliance determination, the Commission seeks comment on the following matters: (1) Will the Covered Entity's status being subject to, and its compliance with, the Spanish and EU laws listed in the determination result in a comparable regulatory outcome; (2) are there additional or alternative Spanish and/or EU laws that Covered Entities should be required to be subject to and comply with to achieve a comparable regulatory outcome; and (3) are any of the Spanish and/or EU laws listed in the determination unnecessary to achieve a comparable regulatory outcome? Explain why or why not.
With respect to suitability requirements, the Commission also invites commenters to address the proposed limitation of substituted compliance to recommendations to counterparties that are per se professional clients as defined in MiFID and that are not special entities for purposes of the Exchange Act. Would Spanish and EU suitability requirements for elective professional clients, retail clients and/or special entities produce regulatory outcomes comparable to Exchange Act suitability requirements? Explain why or why not.
With respect to daily mark disclosure requirements, the Commission also invites commenters to address the proposed limitation of substituted compliance to security-based swaps in portfolios that the Covered Entity is required to reconcile, and in fact does reconcile, on each business day. Are there additional or alternative Spanish and/or EU laws that apply to a broader
Commenters further are invited to address the Commission's preliminary determination not to grant substituted compliance for Exchange Act clearing rights disclosure requirements. The Commission seeks comment on the following matters: (1) Will the Covered Entity's status being subject to, and its compliance with, the Spanish and EU laws listed in the CNMV Application result in a comparable regulatory outcome; and (2) are there additional or alternative Spanish and/or EU laws that Covered Entities could be required to be subject to and comply with to achieve a comparable regulatory outcome? Explain why or why not.
Commenters further are invited to address any differences between Spanish regulatory requirements and frameworks and the German, French, and/or UK requirements and frameworks that formed the basis for the Commission's conditional grants of substituted compliance for certain of those counterparty protection requirements in those countries and/or for the Commission's proposal to amend its conditional grant of substituted compliance for Germany.
The Commission requests comment regarding the proposed grants of substituted compliance in connection with requirements under the Exchange Act related to recordkeeping, reporting, and notification, as well as the requirement of Exchange Act section 15F(g). Commenters particularly are invited to address the basis for substituted compliance in connection with those requirements, and the proposed conditions and limitations connected to substituted compliance for those requirements. Do EU and Spanish law taken as a whole produce regulatory outcomes that are comparable to those of Exchange Act section 15F(g) and Exchange Act rules 18a-5, 18a-6, 18a-7, and 18a-8? In this regard, commenters are invited to address the EU and Spanish laws cited for each substituted compliance determination with respect to the distinct requirements within the recordkeeping, reporting, and notification rules (
Commenters particularly are invited to address the proposed condition with respect to Exchange Act rule 18a-5 that the Covered Entity: (1) Preserve all of the data elements necessary to create the records required by Exchange Act rules 18a-5(b)(1), (2), (3), and (7); and (2) upon request furnish promptly to representatives of the Commission the records required by those rules. Do the relevant EU and Spanish laws require Covered Entities to retain the data elements necessary to create the records required by these rules? If not, please identify which data elements are not preserved pursuant to the relevant EU and Spanish laws. Further, how burdensome would it be for a Covered Entity to format the data elements into the records required by these rules (
Is it appropriate to structure the Commission's substituted compliance determinations in the proposed Order to provide Covered Entities with greater flexibility to select which distinct requirements within the broader recordkeeping, reporting, and notification rules for which they want to apply substituted compliance? Explain why or why not. For example, would it be more efficient for a Covered Entity to comply with certain Exchange Act requirements within a given rule (rather than apply substituted compliance) because it can utilize systems that its affiliated broker-dealer has implemented to comply with them? If so, explain why. If not, explain why not. Is it appropriate to permit Covered Entities to take a more granular approach to the requirements within the recordkeeping rules? For example, would this approach make it more difficult for the Commission to get a comprehensive understanding of the Covered Entity's security-based swap activities and financial condition? Explain why or why not. Would it be overly complex for the Covered Entity to administer a firm-wide recordkeeping system under this approach? Explain why or why not.
Certain of the Commission's recordkeeping and notification requirements are fully or partially linked to substantive Exchange Act requirements for which a positive substituted compliance determination preliminarily would not be made under the proposed Order. In these cases, should the Commission not make a positive substituted compliance determination for the fully linked requirement in the recordkeeping or notification rules or to the portion of the requirement that is linked to a substantive Exchange Act requirement? In particular, should the Commission not make a positive substituted compliance determination for recordkeeping or notification requirements linked to the following Exchange Act rules for which a positive substituted compliance determination is preliminarily not being made: (1) Exchange Act rule 15Fh-4; (2) Exchange Act rule 15Fh-5; (3) Exchange Act rule 15Fh-6; (4) Exchange Act rule 18a-4; (5) Regulation SBSR; (6) Form SBSE and its variations; (7) Exchange Act rule 15Fh-1; and (8) Exchange Act rule 15Fh-2? If not, explain why.
Certain of the requirements in the Commission's recordkeeping rules are linked to substantive Exchange Act requirements where a positive substituted compliance determination is being made under the proposed Order. In these cases, should a positive substituted compliance determination for the linked requirement in the recordkeeping rule be conditioned on the Covered Entity applying substituted compliance to the linked substantive Exchange Act requirement? If not, explain why. Should this be the case regardless of whether the requirement is fully or partially linked to the substantive Exchange Act requirement? If not, explain why. In particular, should substituted compliance for recordkeeping, reporting, and notification requirements linked to the following Exchange Act rules be conditioned on the Covered Entity
Commenters also are invited to address the preliminary positive substituted compliance determination with respect to Exchange Act rule 18a-7, which would be conditioned on the Covered Entity filing financial and operational information with the Commission in the manner and format specified by the Commission by order or rule. Should the Commission require Covered Entities to file the financial and operational information using the FOCUS Report Part IIC? Are there line items on the FOCUS Report Part IIC that elicit information that is not included in the reports Covered Entities with a prudential regulator file with the CNMV or other EU or Spanish authorities? If so, do Covered Entities with a prudential regulator record that information in their required books and records? Please identify any information that is elicited in the FOCUS Report Part IIC that is not: (1) Included in the financial reports filed by Covered Entities with the CNMV; or (2) recorded in the books and records required of Covered Entities. Would the answer to these questions change if references to FFIEC Form 031 were not included in the FOCUS Report Part IIC? If so, how? As a preliminary matter, as a condition of substituted compliance should Covered Entities file a limited amount of financial and operational information on the FOCUS Report Part IIC for a period of two years to further evaluate the burden of requiring all applicable line items to be filled out? If so, which line items should be required? To the extent that Covered Entities otherwise report or record information that is responsive to the FOCUS Report Part IIC, how could the information on this report be integrated into a database of filings the Commission or its designee will maintain for filers of the FOCUS Report Parts IIC (
Commenters further are invited to address any differences between Spanish regulatory requirements and frameworks and the German, French, and/or UK requirements and frameworks that formed the basis for the Commission's conditional grants of substituted compliance for recordkeeping, reporting, and notification requirements in those countries and/or for the Commission's proposal to amend its conditional grant of substituted compliance for Germany.
The Commission further requests comment regarding how to weigh considerations regarding supervisory and enforcement effectiveness in Spain as part of the comparability assessments. Commenters particularly are invited to address relevant issues regarding the effectiveness of Spanish supervision and enforcement over firms that may register with the Commission as SBS Entities, including but not limited to issues regarding:
• The relevant Spanish authorities for the supervision and enforcement of the areas of law where substituted compliance has been requested and the supervision and enforcement role played by each authority;
• Spanish supervisory and enforcement authority, supervisory inspection practices, and the use of alternative supervisory and/or enforcement tools and practices;
• Spanish supervisory and enforcement effectiveness with respect to derivatives such as security-based swaps; and
• Spanish supervision and enforcement in the cross-border context (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It is hereby determined and ordered, pursuant to rule 3a71-6 under the Exchange Act, that a Covered Entity (as defined in paragraph (g)(1) of this Order) may satisfy the requirements under the Exchange Act that are addressed in paragraphs (b) through (e) of this Order so long as the Covered Entity is subject to and complies with relevant requirements of the Kingdom of Spain and the European Union and with the conditions of this Order, as amended or superseded from time to time.
This Order is subject to the following general conditions, in addition to the conditions specified in paragraphs (b) through (e):
(1)
(2)
(3)
(4)
(5)
(i) As if the counterparty were the specified type of counterparty; in this regard, if the Covered Entity reasonably determines that the counterparty would be a financial counterparty if it were established in the EU and authorized by an appropriate EU authority, it must treat the counterparty as if the counterparty were a financial counterparty; and
(ii) Without regard to the application of EMIR article 13.
(6)
(i) The relevant security-based swap is an “OTC derivative” or “OTC derivative contract,” as defined in EMIR article 2(7), that has not been cleared by a central counterparty and otherwise is subject to the provisions of EMIR article 11, EMIR RTS articles 11 through 15, and EMIR Margin RTS article 2; or
(ii) The relevant security-based swap has been cleared by a central counterparty that is authorized or recognized to clear derivatives contracts by a relevant authority in the EU.
(7)
(8)
(9)
(10)
(i) If, in relation to a particular service provided by a Covered Entity, responsibility for ensuring compliance with any provision of MiFID or MiFIR or any other EU or Spanish requirement adopted pursuant to MiFID or MiFIR listed in paragraphs (b) through (e) of this Order is allocated to an authority of the Member State of the European Union in whose territory a Covered Entity provides the service, the CNMV must be the authority responsible for supervision and enforcement of that provision or requirement in relation to the particular service.
(ii) If responsibility for ensuring compliance with any provision of MAR or any other EU requirement adopted pursuant to MAR listed in paragraphs (b) through (e) of this Order is allocated to one or more authorities of a Member State of the European Union, one of such authorities must be the CNMV.
(11)
This Order extends to the following provisions related to risk control:
(1)
(i) The Covered Entity is subject to and complies with the requirements of:
(A) MiFID articles 16 and 23; SSMA articles 193, 194, 208bis, 220bis, 221, 222, 223, and 224; and RD 217/2008 articles 30, 30bis, 30ter, 30quáter, 30quinqies, 30sexies, 32, 41, 42, 43, 44, 45, 46, 47, 48, 61, 66, 67, 68, 69, 70, 71, 72, 72bis, 72ter, 73, 74, 74bis, 74ter, 75, 75bis, 76, 76bis, and 79; and, if the Covered Entity is a credit institution, also BoS Circular 2/2016 article 43 and RD 84/2015 article 22;
(B) MiFID Org Reg articles 21 through 37, 72 through 76 and Annex IV;
(C) CRD articles 74, 76, 79 through 87, 88(1), 91(1) and (2), 91(7) through (9), 92, 94, and 95; SSMA articles 182(1) and (2) and 183(1) and (2); and RD 217/2008 article 35; and, if the Covered Entity is a credit institution, also LOSSEC articles 24, 25, 26, 27, 28, 29, 32, 33, 34, 36, 37, and 38; RD 84/2015 articles 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, and 54; and BoS Circular 2/2016 articles 26, 27, 28, 29, 30, 31, 32, 33(4), 34, 35, 36, 37, 38, 39, 40, 41, 46, 47, 48, 49, 50, 51, 52, and 60; and, if the Covered Entity is an investment firm, also SSMA articles 183(3), 184, 184bis, 185, 185bis, 186, 188, 189(1) through (3) and (5), 189bis, 189ter, and 192bis; and RD 217/2008 articles 14(1)(f), 20, 20bis, 21, 22, 24, 31, 31bis, 36, 38, 39(1) and (2), 40, 88, 90, 91, 92, 93, 94, 95, 96, 97(1)-(3), and 98;
(D) CRR articles 286 through 288 and 293; and
(E) EMIR Margin RTS article 2;
(ii) If the Covered Entity is an investment firm, the Covered Entity is not exempt from certain provisions of RD 217/2008 pursuant to RD 217/2008 article 87(2) and/or (3) and/or exempt from SSMA article 189 pursuant to SSMA article 189(6) and/or (7); and
(iii) If the Covered Entity is an investment firm, the Covered Entity establishes, maintains, and implements policies and procedures for management of residual risk associated with the use
(2)
(3)
(i) The Covered Entity is subject to and complies with the requirements of EMIR article 11(1)(b) and EMIR RTS articles 13 and 15; and
(ii) The Covered Entity provides the Commission with reports regarding disputes between counterparties on the same basis as it provides those reports to competent authorities pursuant to EMIR RTS article 15(2).
(4)
(5)
This Order extends to the following provisions related to internal supervision and compliance and Exchange Act section 15F(j) requirements:
(1)
(i) The Covered Entity is subject to and complies with the requirements identified in paragraph (d)(3) of this Order and complies with the other conditions in that paragraph;
(ii) The Covered Entity complies with paragraph (c)(4) of this Order; and
(iii) This paragraph (c) does not extend to the requirements of paragraph (h)(2)(iii)(I) to rule 15Fh-3 to the extent those requirements pertain to compliance with Exchange Act sections 15F(j)(2), (j)(3), (j)(4)(B) and (j)(6), or to the general and supporting provisions of paragraph (h) to rule 15Fh-3 in connection with those Exchange Act sections.
(2)
(i) The Covered Entity is subject to and complies with the requirements identified in paragraph (c)(3) of this Order and complies with the other conditions in that paragraph;
(ii) All reports required pursuant to MiFID Org Reg article 22(2)(c) must also:
(A) Be provided to the Commission at least annually, and in the English language;
(B) Include a certification signed by the chief compliance officer or senior officer (as defined in Exchange Act rule 15Fk-1(e)(2)) of the Covered Entity that, to the best of the certifier's knowledge and reasonable belief and under penalty of law, the report is accurate and complete in all material respects;
(C) Address the Covered Entity's compliance with:
(i) Applicable requirements under the Exchange Act; and
(ii) The other applicable conditions of this Order in connection with requirements for which the Covered Entity is relying on this Order;
(D) Be provided to the Commission no later than 15 days following the earlier of:
(i) The submission of the report to the Covered Entity's management body; or
(ii) The time the report is required to be submitted to the management body; and
(E) Together cover the entire period that the Covered Entity's annual compliance report referenced in Exchange Act section 15F(k)(3) and Exchange Act rule 15Fk-1(c) would be required to cover.
(3)
(A) MiFID articles 16 and 23; SSMA articles 193, 194, 208bis, 220bis, 221, 222, 223, and 224; and RD 217/2008 articles 30, 30bis, 30ter, 30quáter, 30quinqies, 30sexies, 32, 41, 42, 43, 44, 45, 46, 47, 48, 61, 66, 67, 68, 69, 70, 71, 72, 72bis, 72ter, 73, 74, 74bis, 74ter, 75, 75bis, 76, 76bis, and 79; and, if the Covered Entity is a credit institution, also BoS Circular 2/2016 article 43 and RD 84/2015 article 22;
(B) MiFID Org Reg articles 21 through 37, 72 through 76 and Annex IV;
(C) CRD articles 74, 76, 79 through 87, 88(1), 91(1) and (2), 91(7) through (9), 92, 94, and 95; SSMA articles 182(1) and (2) and 183(1) and (2); and RD 217/2008 article 35; and, if the Covered Entity is a credit institution, also LOSSEC articles 24, 25, 26, 27, 28, 29, 32, 33, 34, 36, 37, and 38; RD 84/2015 articles 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, and 54; and BoS Circular 2/2016 articles 26, 27, 28, 29, 30, 31, 32, 33(4), 34, 35, 36, 37, 38, 39, 40, 41, 46, 47, 48, 49, 50, 51, 52, and 60; and, if the Covered Entity is an investment firm, also SSMA articles 183(3), 184, 184bis, 185, 185bis, 186, 188, 189(1) through (3) and (5), 189bis, 189ter, and 192bis; and RD 217/2008 articles 14(1)(f), 20, 20bis, 21, 22, 24, 30, 31, 31bis, 36, 38, 39(1) and (2), 40, 88, 90, 91, 92, 93, 94, 95, 96, 97(1)-(3), and 98;
(D) CRR articles 286 through 288 and 293; and
(E) EMIR Margin RTS article 2.
(ii) Paragraphs (c)(1) and (c)(2) also are conditioned on the Covered Entity's compliance with the following conditions:
(A) If the Covered Entity is an investment firm, the Covered Entity is not exempt from certain provisions of RD 217/2008 pursuant to RD 217/2008 article 87(2) and/or (3) and/or exempt from SSMA article 189 pursuant to SSMA article 189(6) and/or (7); and
(B) If the Covered Entity is an investment firm, the Covered Entity establishes, maintains, and implements policies and procedures for management of residual risk associated with the use of recognized credit risk mitigation techniques described in RD 217/2008 article 103(1)(c).
(4)
(i) Applicable requirements under the Exchange Act; and
(ii) The other applicable conditions of this Order in connection with requirements for which the Covered Entity is relying on this Order.
This Order extends to the following provisions related to counterparty protection:
(1)
(2)
(i) MiFID article 23(2) and (3); RD 217/2008 article 61(2) and (3); and MiFID Org Reg articles 33-35;
(ii) MiFID article 24(9); MiFID Delegated Directive article 11(5); and SSMA articles 220ter, 220quáter, and 220quinquies; RD 217/2008 articles 62, 63, and 64; or
(iii) MAR article 20(1) and MAR Investment Recommendations Regulation articles 5 and 6.
(3)
(4)
(i) The Covered Entity, in relation to the relevant recommendation, is subject to and complies with the requirements of MiFID articles 24(2) and (3) and 25(1) and (2); SSMA articles 208ter(1) and (2), 209(2), 212, 213, and 220sexies; RD 217/2008 articles 66, 71, 72, 72bis, 72ter, 73, 74, 74bis, 74ter, 75, 75bis, 76bis, and 80; CNMV Technical Guide 4/2017; and MiFID Org Reg articles 21(1)(b) and (d), 54, and 55; and
(ii) The counterparty to which the Covered Entity makes the recommendation is a “professional client” mentioned in MiFID Annex II section I and in SSMA article 205 and RD 217/2008 article 58 and is not a “special entity” as defined in Exchange Act section 15F(h)(2)(C) and Exchange Act rule 15Fh-2(d).
(5)
(i) Either MiFID articles 24(1) and (3) and SSMA articles 208 and 209(2) or MiFID article 30(1) and SSMA article 207(4); and
(ii) MiFID articles 24(4) and (5); SSMA articles 209(1) and (3) and 210(1); RD 217/2008 article 77; MiFID Org Reg articles 46-48; MAR articles 12(1)(c), 15 and 20(1); and MAR Investment Recommendations Regulation articles 3 and 4.
(6)
This Order extends to the following provisions that apply to a Covered Entity related to recordkeeping, reporting, and notification:
(1)(i)
(A) The requirements of Exchange Act rule 18a-5(b)(1), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg articles 74, 75, and Annex IV; MiFIR article 25(1);
(B) The requirements of Exchange Act rule 18a-5(b)(2), provided that the Covered Entity is subject to and complies with the requirements of MiFID Delegated Directive article 2; MiFID Org Reg articles 72, 74 and 75; EMIR article 39(4); RD 217/2008 article 41;
(C) The requirements of Exchange Act rule 18a-5(b)(3), provided that the Covered Entity is subject to and complies with the requirements of CRR article 103; MiFID articles 16(6), 25(5), and 25(6); MiFID Org Reg articles 59, 74, 75 and Annex IV; MiFIR article 25(1); EMIR articles 9(2) and 11(1)(a); SSMA articles 194(1), 218, and 211; and RD 217/2008 articles 3, 32(1), and 82;
(D) The requirements of Exchange Act rule 18a-5(b)(4), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg article 59; EMIR articles 9(2) and 11(1)(a); MiFID articles 16(6), 25(5), and 25(6); SSMA articles 194(1), 218, and 211; and RD 217/2008 articles 3, 32(1), and 82;
(E) The requirements of Exchange Act rule 18a-5(b)(5), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg articles 74, 75, and Annex IV; and MiFIR article 25(1);
(F) The requirements of Exchange Act rules 18a-5(b)(6) and (b)(11), provided that:
(
(
(G) The requirements of Exchange Act rule 18a-5(b)(7), provided that the Covered Entity is subject to and complies with the requirements of MiFIR article 25(1); MLD4 articles 11 and 13; MiFID article 25(2); SMLA articles 3 through 7; and SSMA article 213;
(H) The requirements of Exchange Act rule 18a-5(b)(8), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg articles 21(1)(d), 35; CRD articles 88, 91(1), 91(8); MiFID articles 9(1) and 16(3); SSMA articles 193(2)(b)
(I) The requirements of Exchange Act rule 18a-5(b)(13), regarding one or more provisions of Exchange Act rules 15Fh-3 or 15Fk-1 for which substituted compliance is available under this Order, provided that:
(
(
(
(J) The requirements of Exchange Act rule 18a-5(b)(14)(i) and (ii), provided that:
(
(
(K) The requirements of Exchange Act rule 18a-5(b)(14)(iii), provided that:
(
(
(ii) Paragraph (e)(1)(i) is subject to the following further conditions:
(A) Paragraphs (e)(1)(i)(A) through (C) and (G) are subject to the condition that the Covered Entity preserves all of the data elements necessary to create the records required by the applicable Exchange Act rules cited in such paragraphs and upon request furnishes promptly to representatives of the Commission the records required by those rules;
(B) A Covered Entity may apply the substituted compliance determination in paragraph (e)(1)(i)(I) to records of compliance with Exchange Act rule 15Fh-3(b), (c), (e), (f) and (g) in respect of one or more security-based swaps or activities related to security-based swaps; and
(C) This Order does not extend to the requirements of Exchange Act rule 18a-5(b)(9), (b)(10) or (b)(12).
(2)(i)
(A) The requirements of Exchange Act rule 18a-6(a)(2), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg articles 72, 74, 75, and Annex IV; CRR article 103; MiFIR article 25(1); EMIR article 9(2); MiFID articles 16(6) and 69(2); CRD article 73; MiFID Delegated Directive article 2; SSMA articles 194(1), 234, 276bis, 276ter, 276quáter, and 276quinquies; and RD 217/2008 articles 32(1) and 41;
(B) The requirements of Exchange Act rule 18a-6(b)(2)(i), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg articles 72, 74, 75, and Annex IV; CRR article 103; MiFIR article 25(1); EMIR article 9(2); MiFID articles 16(6) and 69(2); CRD article 73; MiFID Delegated Directive article 2; SSMA articles 194(1), 234, 276bis, 276ter, 276quáter, and 276quinquies; and RD 217/2008 articles 32(1) and 41;
(C) The requirements of Exchange Act rule 18a-6(b)(2)(ii), provided that the Covered Entity is subject to and complies with the requirements of CRR article 103; MiFID Org Reg articles 72, 73, 74, 75, 76, Annex I and Annex IV; MiFIR article 25(1); EMIR article 9(2); CRD article 73; MiFID articles 16(6), 16(7); MiFID Delegated Directive article 2; SSMA articles 194(1) through (3), 276bis, 276ter, 276quáter, and 276quinquies; and RD 217/2008 articles 32(1) through (8) and 41;
(D) The requirements of Exchange Act rule 18a-6(b)(2)(iii), provided that the Covered Entity is subject to and complies with the requirements of EMIR article 9(2); MiFID Org Reg articles 72(1) and 73; MiFID article 16(6); SSMA articles 194(1); and RD 217/2008 article 32(1);
(E) The requirements of Exchange Act rule 18a-6(b)(2)(iv), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg articles 72(1) and 73; MiFIR article 25(1); EMIR article 9(2); MiFID article 16(6); SSMA articles 194(1); and RD 217/2008 article 32(1);
(F) The requirements of Exchange Act rule 18a-6(b)(2)(vii), regarding one or more provisions of Exchange Act rules 15Fh-3 or 15Fk-1 for which substituted compliance is available under this Order, provided that:
(
(
(
(G) The requirements of Exchange Act rule 18a-6(c), provided that:
(
(
(H) The requirements of Exchange Act rule 18a-6(d)(1), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg articles 35 and 72(1); CRD articles 88, 91(1), 91(8); MiFID article 9(1), 16(3), 16(6); LOSSEC articles 24(1) and 29(1)-(2); SSMA articles 193(2)(b), 194(1), and 208bis; RD 217/2008 articles 30, 31, and 32(1); and BoS Circular 2/2016 Rule 32(1);
(I) The requirements of Exchange Act rule 18a-6(d)(2)(ii), provided that the Covered Entity is subject to and complies with the requirements of EMIR article 9(2); MiFID Org Reg articles 72(1) and 72(3); MiFID article 16(6); SSMA articles 194(1); and RD 217/2008 article 32(1);
(J) The requirements of Exchange Act rule 18a-6(d)(3)(ii), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg articles 21(1)(f), 72, 73, and Annex I; MiFID article 16(6); SSMA articles 194(1); and RD 217/2008 article 32(1);
(K) The requirements of Exchange Act rule 18a-6(d)(4) and (d)(5), provided that:
(
(
(L) The requirements of Exchange Act rule 18a-6(e), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg articles 21(2), 58, 72(1) and 72(3); MiFID articles 16(5), 16(6); SSMA articles 193(3) and 194(1); and RD 217/2008 article 32(1); and
(M) The requirements of Exchange Act rule 18a-6(f), provided that the Covered Entity is subject to and complies with the requirements of MiFID Org Reg article 31(1); MiFID article 16(5); and SSMA article 193(3).
(ii) Paragraph (e)(2)(i) is subject to the following further conditions:
(A) A Covered Entity may apply the substituted compliance determination in paragraph (e)(2)(i)(F) to records related to Exchange Act rule 15Fh-3(b), (c), (e), (f) and (g) in respect of one or more security-based swaps or activities related to security-based swaps; and
(B) This Order does not extend to the requirements of Exchange Act rule 18a-6(b)(2)(v), (b)(2)(vi), or (b)(2)(viii).
(3)
(i) The requirements of Exchange Act rule 18a-7(a)(2) and the requirements of Exchange Act rule 18a-7(j) as applied to the requirements of Exchange Act rule 18a-7(a)(2), provided that:
(A) The Covered Entity is subject to and complies with the requirements of CRR articles 99, 394, 430 and Part Six: Title II and Title III; CRR Reporting ITS annexes I, II, III, IV, V, VIII, IX, X, XI, XII and XIII, as applicable; and
(B) The Covered Entity files periodic unaudited financial and operational information with the Commission or its designee in the manner and format required by Commission rule or order and presents the financial information in the filing in accordance with generally accepted accounting principles that the Covered Entity uses to prepare general purpose publicly available or available to be issued financial statements in Spain.
(4)(i)
(A) The requirements of Exchange Act rule 18a-8(c) and the requirements of Exchange Act rule 18a-8(h) as applied to the requirements of Exchange Act rule 18a-8(c), provided that the Covered Entity is subject to and complies with the requirements of LOSSEC articles 116, 119, 121, and 122; and SSMA articles 276bis, 276ter, 276quáter, and 276quinquies;
(B) The requirements of Exchange Act rule 18a-8(d) and the requirements of Exchange Act rule 18a-8(h) as applied to the requirements of Exchange Act rule 18a-8(d), provided that:
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(
(ii) Paragraph (e)(4)(i) is subject to the following further conditions:
(A) The Covered Entity:
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(
(B) This Order does not extend to the requirements of paragraph (g) of rule 18a-8 or to the requirements of Exchange Act rule 18a-8(h) as applied to such requirements.
(5)
(6)
(7)
(1) “Covered Entity” means an entity that:
(i) Is a security-based swap dealer or major security-based swap participant registered with the Commission;
(ii) Is not a “U.S. person,” as that term is defined in rule 3a71-3(a)(4) under the Exchange Act; and
(iii) Is an investment firm or a credit institution authorized by the CNMV and the ECB to provide investment services and/or perform investment activities in the Kingdom of Spain; and
(iv) Is a significant institution supervised by the CNMV and the ECB (with the participation of the BoS).
(2) “MiFID” means the “Markets in Financial Instruments Directive,” Directive 2014/65/EU, as amended from time to time.
(3) “MiFID Org Reg” means Commission Delegated Regulation (EU) 2017/565, as amended from time to time.
(4) “MiFID Delegated Directive” means Commission Delegated Directive (EU) 2017/593, as amended from time to time.
(5) “MiFIR” means Regulation (EU) 600/2014, as amended from time to time.
(6) “EMIR” means the “European Market Infrastructure Regulation,” Regulation (EU) 648/2012, as amended from time to time.
(7) “EMIR RTS” means Commission Delegated Regulation (EU) 149/2013, as amended from time to time.
(8) “EMIR Margin RTS” means Commission Delegated Regulation (EU) 2016/2251, as amended from time to time.
(9) “CRD” means Directive 2013/36/EU, as amended from time to time.
(10) “CRR” means Regulation (EU) 575/2013, as amended from time to time.
(11) “CRR Reporting ITS” means Commission Implementing Regulation (EU) 680/2014, as amended from time to time.
(12) “MLD” means Directive (EU) 2015/849, as amended from time to time.
(13) “MAR” means the “Market Abuse Regulation,” Regulation (EU) 596/2014, as amended from time to time.
(14) “MAR Investment Recommendations Regulation” means Commission Delegated Regulation (EU) 2016/958, as amended from time to time.
(15) “CNMV” means the Spanish Comisión Nacional del Mercado de Valores.
(16) “BoS” means the Spanish Banco de España.
(17) “ECB” means the European Central Bank.
(18) “Accounting Directive” means Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013, as amended from time to time.
(19) “BRRD” means Bank Recovery and Resolution Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014, as amended from time to time.
(20) “SSMA” means the Spanish Securities Market Act, Royal Legislative Decree 4/2015, of October 23, as amended from time to time.
(21) “RD 217/2008” means Royal Decree 217/2008, of February 15, as amended from time to time.
(22) “LOSSEC” means the Act on Regulation, Supervision, and Solvency of Credit Institutions, Law 10/2014, of June 26, as amended from time to time.
(23) “RD 84/2015” means Royal Decree 84/2015, of February 13, as amended from time to time.
(24) “BoS Circular 2/2016” means Circular 2/2016, of February 2, of the Bank of Spain, as amended from time to time.
(25) “SMLA” means the Spanish Anti-Money Laundering Act, Law 10/2010, of April 28, as amended from time to time.
(26) “Prudentially regulated” means a Covered Entity that has a “prudential regulator” as that term is defined in Exchange Act section 3(a)(74).
The Commission collects fees under various provisions of the securities laws. Section 6(b) of the Securities Act of 1933 (“Securities Act”) requires the Commission to collect fees from issuers on the registration of securities.
Section 6(b)(2) of the Securities Act requires the Commission to make an annual adjustment to the fee rate applicable under Section 6(b).
Section 6(b)(2) sets forth the method for determining the annual adjustment to the fee rate under Section 6(b) for fiscal year 2022. Specifically, the Commission must adjust the fee rate under Section 6(b) to a “rate that, when applied to the baseline estimate of the aggregate maximum offering prices for [fiscal year 2022], is reasonably likely to produce aggregate fee collections under [Section 6(b)] that are equal to the target fee collection amount for [fiscal year 2022].” That is, the adjusted rate is determined by dividing the “target fee collection amount” for fiscal year 2022 by the “baseline estimate of the aggregate maximum offering prices” for fiscal year 2022.
The statutory “target fee collection amount” for fiscal year 2021 and “each fiscal year thereafter” is “an amount that is equal to the target fee collection amount for the prior fiscal year, adjusted by the rate of inflation.”
The most recent CPI-U index value, not seasonally adjusted, available for use by the Commission at the time this fee rate update was prepared was for June 2021. This value is 271.696.
Section 6(b)(6)(B) defines the “baseline estimate of the aggregate maximum offering prices” for fiscal year 2022 as “the baseline estimate of the aggregate maximum offering price at which securities are proposed to be offered pursuant to registration statements filed with the Commission during [fiscal year 2022] as determined by the Commission, after consultation with the Congressional Budget Office and the Office of Management and Budget . . . .”
To make the baseline estimate of the aggregate maximum offering prices for fiscal year 2022, the Commission is using the methodology it has used in prior fiscal years and that was developed in consultation with the Congressional Budget Office and OMB.
The fiscal year 2022 annual adjustments to the fee rates applicable under Section 6(b) of the Securities Act and Sections 13(e) and 14(g) of the Exchange Act will be effective on October 1, 2021.
Accordingly, pursuant to Section 6(b) of the Securities Act and Sections 13(e) and 14(g) of the Exchange Act,
By the Commission.
Congress has established a target amount of monies to be collected from fees charged to issuers based on the value of their registrations. This appendix provides the formula for determining such fees, which the Commission adjusts annually. Congress has mandated that the Commission determine these fees based on the “aggregate maximum offering prices,” which measures the aggregate dollar amount of securities registered with the Commission over the course of the year. In order to maximize the likelihood that the amount of monies targeted by Congress will be collected, the fee rate must be set to reflect projected aggregate maximum offering prices. As a percentage, the fee rate equals the ratio of the target amounts of monies to the projected aggregate maximum offering prices.
For 2022, the Commission has estimated the aggregate maximum offering prices by projecting forward the trend established in the previous decade. More specifically, an auto-regressive integrated moving average (“ARIMA”) model was used to forecast the value of the aggregate maximum offering prices for months subsequent to July 2021, the last month for which the Commission has data on the aggregate maximum offering prices.
The following sections describe this process in detail.
First, calculate the aggregate maximum offering prices (AMOP) for each month in the sample (July 2011-July 2021). Next, calculate the percentage change in the AMOP from month to month.
Model the monthly percentage change in AMOP as a first order moving average process. The moving average approach allows one to model the effect that an exceptionally high (or low) observation of AMOP tends to be followed by a more “typical” value of AMOP.
Use the [estimated moving average] [ARIMA] model to forecast the monthly percent change in AMOP. These percent changes can then be applied to obtain forecasts of the total dollar value of registrations. The following is a more formal (mathematical) description of the procedure:
1. Begin with the monthly data for AMOP. The sample spans ten years, from July 2011 to July 2021.
2. Divide each month's AMOP (column C) by the number of trading days in that month (column B) to obtain the average daily AMOP (AAMOP, column D).
3. For each month t, the natural logarithm of AAMOP is reported in column E.
4. Calculate the change in log(AAMOP) from the previous month as Δ
5. Estimate the first order moving average model Δ
6. For the month of August 2021 forecast Δ
7. Calculate forecasts of log(AAMOP). For example, the forecast of log(AAMOP) for October 2021 is given by FLAAMOP
8. Under the assumption that e
9. For October 2021, this gives a forecast AAMOP of $30.399 billion (Column I), and a forecast AMOP of $638.385 billion (Column J).
10. Iterate this process through September 2022 to obtain a baseline estimate of the aggregate maximum offering prices for fiscal year 2022 of $8,066,357,647,394.
1. Using the data from Table A, estimate the aggregate maximum offering prices between 10/01/21 and 9/30/22 to be $8,066,357,647,394.
2. The rate necessary to collect the target $747,806,372 in fee revenues required by Section 6(b) of the Securities Act is then calculated as: $747,806,372 ÷ $8,066,357,647,394 = 0.0000927068.
3. Round the result to the seventh decimal point, yielding a rate of 0.0000927 (or $92.70 per million).
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 and OMB procedures, SBA is publishing this notice to allow all interested member of the public an additional 30 days to provide comments on the proposed collection of information.
Submit comments on or before September 27, 2021.
Written comments and recommendations for this information collection request should be sent within 30 days of publication of this notice to
You may obtain a copy of the information collection and supporting documents from the Agency Clearance Office at
The information collected is used by SBA to monitor the Agents, fees charged by Agents, and the relationship between Agents and lenders. The information helps SBA to determine among other things whether borrowers are paying unnecessary, unreasonable or prohibitive fees.
Solicitation of Public Comments: Comments may be submitted 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.
OMB Control 3245-0201.
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 and OMB procedures, SBA is publishing this notice to allow all interested member of the public an additional 30 days to provide comments on the proposed collection of information.
Submit comments on or before September 27, 2021.
Written comments and recommendations for this information collection request should be sent within 30 days of publication of this notice to
You may obtain a copy of the information collection and supporting documents from the Agency Clearance Office at
This form facilitates online registration for the Boots to Business course for eligible service members and their spouses. The collected data will be used to report course statistics, manage course operations more efficiently, tailor individual classes based on the experience and interests of the participants, and ultimately contact Boots to Business alumni.
Comments may be submitted 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.
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 and OMB procedures, SBA is publishing this notice to allow all interested member of the public an additional 30 days to provide comments on the proposed collection of information.
Submit comments on or before September 27, 2021.
Written comments and recommendations for this information collection request should be sent within 30 days of publication of this notice to
You may obtain a copy of the information collection and supporting documents from the Agency Clearance Office at
Small Business Administration (SBA) Surety Bond Guarantee Program was created to encourage surety companies to provide bonding for small contractors. The information collected on this form from small businesses and surety companies will be used to evaluate the eligibility of applicants for contracts up to $400,000.
Comments may be submitted 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.
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 and OMB procedures, SBA is publishing this notice to allow all interested member of the public an additional 30 days to provide comments on the proposed collection of information.
Submit comments on or before September 27, 2021.
Written comments and recommendations for this information collection request should be sent within 30 days of publication of this notice to
You may obtain a copy of the information collection and supporting documents from the Agency Clearance Office at
SBA is requesting comments 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. SBA proposes to revise the application form to collect information regarding race, ethnicity, and veteran status. Submission of this information is entirely voluntary and would not be a factor in processing the loan. The sole purpose for collecting this information is to help SBA determine the extent to which businesses owned and operated by veterans or members of racial and ethnic groups are benefitting from this disaster assistance program, and develop strategies and policies that could fill any perceived gaps and expand the program's reach.
OMB Control 3245-0017
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to October 25, 2021.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Anne Amadou, who may be reached 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 use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The information solicited is used to establish eligibility and qualifications at U.S. Embassies, Consulates, and Missions abroad. The respondents are locals who live in the 175 countries abroad and who are applying for a position at the U.S. Embassy, Consulate or Mission in their country. In addition, Family members who are accompanying their partners to assignments in the U.S. Embassies, Consulates or Mission abroad. The authority is the Foreign Service Act of 1980, as amended, and 22 U.S.C 2669(c).
Candidates for employment use the DS-0174 to apply for Mission-advertised positions around the world. Mission recruitments generate approximately 1 million applications per year, the majority of which are collected electronically using an applicant management system, Electronic Recruitment Application (ERA). Data that HR and hiring officials extract from the DS-0174 determine employment eligibility and qualifications for the position, and selections according to Federal Policies.
Office of the United States Trade Representative.
Notice.
The Office of the United States Trade Representative (USTR) is providing notice of the allocations of additional fiscal year (FY) 2021 in-quota quantities of the World Trade Organization (WTO) tariff-rate quota (TRQ) for imported raw cane sugar as announced by the Secretary of Agriculture on August 24, 2021.
The changes made by this notice are applicable as of August 26, 2021.
Erin Nicholson, Office of Agricultural Affairs, at 202-395-9419 or
Pursuant to Additional U.S. Note 5 to Chapter 17 of the Harmonized Tariff Schedule of the United States (HTSUS), the United States maintains WTO TRQs for imports of raw cane and refined sugar. Section 404(d)(3) of the Uruguay Round Agreements Act (19 U.S.C. 3601(d)(3)) authorizes the President to allocate the in-quota quantity of a TRQ for any agricultural product among supplying countries or customs areas. The President delegated this authority to the U.S. Trade Representative under Presidential Proclamation 6763 (60 FR 1007).
On August 24, 2021, the Secretary of Agriculture announced an additional in-quota quantity of the TRQ for raw cane sugar for the remainder of FY 2021 (ending September 30, 2021) in the amount of 90,100 metric tons raw value (MTRV). The conversion factor is 1 metric ton equals 1.10231125 short tons. This quantity is in addition to the minimum amount to which the United States is committed under the WTO Uruguay Round Agreements (1,117,195 MTRV).
The Secretary of Agriculture also has determined that all sugar entering the United States under the FY 2021 raw sugar TRQ will be permitted to enter U.S. Customs territory through October 31, 2021, a month later than the usual last entry date. The U.S. Trade Representative is allocating this additional quantity of 90,100 MTRV to the following countries in the amounts specified below:
These allocations are based on the countries' historical shipments to the United States. The allocations of the raw cane sugar WTO TRQ to countries that are net importers of sugar are conditioned on receipt of the appropriate verifications of origin. Certificates for quota eligibility must accompany imports from any country for which an allocation has been provided.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, FAA's exemption process. Neither publication of this notice nor the inclusion nor omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before September 15, 2021.
Send comments identified by docket number FAA-2019-0652 using any of the following methods:
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Nia Daniels, (202) 267-7626, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Issued in Washington, DC.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval renewal information collection. The
Written comments should be submitted by Sep 22, 2021.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Parasha Vincent Flowers by email at:
The agency and the National Transportation Safety Board (NTSB) use the exposure data, both by itself and in conjunction with aircraft age, to calculate accident rates, which are used to compare safety over time and safety performance among different aircraft types and configurations.
The agency and the NTSB will use the exposure data for public use aircraft to calculate accident rates for those aircraft. The NTSB is now required to investigate accidents involving public use aircraft. This is a responsibility assigned by Public Law 103-411.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice; request for information (RFI).
The FHWA is re-designating the PHFS to meet the statutory requirements of the authorizing law. The Fixing America's Surface Transportation (FAST) Act designated the PHFS and provided for an update to the PHFS every 5 years. Beginning five years after the date of the enactment of the FAST Act, and every 5 years thereafter, using the designation factors described in FAST Act, the FHWA Administrator shall re-designate the primary highway freight system. Each re-designation may increase the mileage on the PHFS by not more than 3 percent of the total mileage of the system. The current PHFS consists of 41,518 centerline miles of roadway and is a component of the National Highway Freight Network (NHFN). The re-designation initiated through this RFI may add up to 1,246 miles of additional mileage to the current PHFS. State Freight Advisory Committees, represented by their States, are invited to submit comments. Other entities are encouraged to engage directly with their State Freight Advisory Committee or the State department of transportation (State DOT). Comments submitted by entities other than a State Freight Advisory Committee will be considered for general input into the process.
Comments must be received on or before October 25, 2021. Late comments will be considered to the extent practicable.
Interested parties are invited to submit comments identified by DOT Docket ID FHWA-2020-0010 by any of the following methods:
Questions may be addressed to Birat Pandey,
Congress established a National Highway Freight Program (NHFP) in 23 U.S.C. 167 to improve the efficient movement of freight on the NHFN and support several goals. The NHFP required the FHWA Administrator to establish a NHFN to strategically direct Federal resources and policies toward improved performance of the network. The definition of the NHFN is established under 23 U.S.C. 167(c) and consists of four separate highway network components: The PHFS; Critical Rural Freight Corridors (CRFCs); Critical Urban Freight Corridors (CUFCs); and those portions of the Interstate System that are not part of the PHFS. The initial designation of the PHFS was identified during the designation process for the primary freight network under section 23 U.S.C. 167(d), as in effect on the day before the date of enactment of the FAST Act.
The FHWA Administrator is required to re-designate the PHFS every 5 years. Each re-designation is limited to a maximum 3 percent increase in total mileage of the system per 23 U.S.C. 167(d)(2)(B).
Congress established the PHFS as a network of highways intended to reflect the most critical highway portions of the U.S. freight transportation system, determined by measurable and objective national data. The network consists of 41,518 centerline miles, including 37,436 centerline miles of Interstate and 4,082 centerline miles of non-Interstate roads. Maps and tables exhibiting roads currently included in the PHFS of the NHFN are available by State here:
Congress established a NHFP in 23 U.S.C. 167 to improve the efficient movement of freight on the NHFN and support several goals. Additional details on the NHFP are available at:
Congress established 23 U.S.C. 117, the Nationally Significant Freight and Highway Projects program, currently known as Infrastructure for Rebuilding America (INFRA). This discretionary grant program provides Federal financial assistance to highway and freight projects of national or regional significance. Eligibility for INFRA grant funding for highway projects is limited to those existing or planned roads that are or will become part of the NHFN or the National Highway System (NHS). Additional details on INFRA Grants are available at:
Section 1116 of the FAST Act (Pub. L. 114-94) repealed both the Primary Freight Network (PFN) and National Freight Network from Moving Ahead for Progress in the 21st Century Act (MAP-21), and directed the FHWA Administrator to establish an NHFN to strategically direct Federal resources and policies toward improved performance of highway portions of the U.S. freight transportation system.
The initial creation of the PHFS occurred during the designation process for the MAP-21 highway-only PFN under 23 U.S.C. 167(d). The MAP-21 limited the highway PFN to not more than 27,000 centerline miles of existing roadways that are most critical to the movement of freight. In addition, MAP-21 allowed an additional 3,000 centerline miles (existing or planned roads) critical to the future efficient movement of goods on the highway PFN. The MAP-21 instructed DOT to base the highway-only PFN on an inventory of national freight volumes conducted by the FHWA Administrator, in consultation with stakeholders, including system users, transport providers, and States. The FHWA released a larger “Comprehensive PFN” of 41,518 miles for consideration, to accompany the designation of the PFN. This Comprehensive PFN was used by Congress to establish the PHFS, and the PFN was sunset. Information on the methodology and data used for these networks is described in the October 23, 2015,
The FHWA developed the following methodology for generating a network that could include as many of the MAP-21 criteria as practicable. The FHWA undertook extensive research and numerous approaches to better understand and model the criteria. This research informed the finding that compliance with the mileage cap yields a network that does not sufficiently accommodate the full set of criteria. To comply with the mileage cap while still accommodating the statutory criteria, FHWA developed a methodology that prioritized the application of the criteria and set thresholds within the data sets. The FHWA used the following methodology to develop the highway-only PFN:
(1) Used the Freight Analysis Framework (FAF) and Highway Performance Monitoring System (HPMS) data sets to generate the top 20,000 miles of road segments that qualified in at least two of the following four factors: Value of freight moved by highway; tonnage of freight moved by highway; Average Annual Daily Truck Traffic (AADTT) on principal arterials; and percentage of AADTT in the annual average daily traffic on principal arterials.
(2) Analyzed the segments identified in Step 1 and gaps between segments for network connectivity. Created the network by connecting segments if the gap between segments was equal to or less than 440 miles (440 miles being the distance a truck could reasonably travel in 1 day). Eliminated a segment if it was less than one-tenth of the length of the nearest qualifying segment on the highway-only PFN.
(3) Identified land ports of entry with truck traffic higher than 75,000 trucks per year. Connected these land ports of entry to the network created in Steps 1 and 2.
(4) Identified the NHS Freight Intermodal Connectors within urban areas with a population of 200,000 or more.
(5) Identified road segments within urban areas with a population of 200,000 or more that have an AADTT of 8,500 trucks/day or more. Connected segments to the network established in Steps 1 and 2 if they were equal to or greater than one-tenth of the length of the nearest qualifying segment on the highway-only PFN. Removed segments not meeting this rule as they were more likely to represent discrete local truck movement unrelated to the national system.
(6) Analyzed the network to determine the relationship to population centers, origins and destinations, ports, river terminals, airports, and rail yards and added minor network connectivity adjustments.
(7) Analyzed the road systems in Alaska, Hawaii, and Puerto Rico using HPMS data. These routes would not otherwise qualify under a connected network model but play a critical role in the movement of products from the agriculture and energy sectors, as well as international import/export functions for their States and urban areas and added roads connecting key ports to population centers.
(8) Analyzed the network to determine the relationship to energy exploration, development, installation, or production areas. Since the data points for the energy sector are scattered around the United States, often in rural areas, and because some of the related freight may move by barge or other maritime vessel, rail, or even pipeline, FHWA did not presume a truck freight correlation.
(9) Steps 1 through 8 resulted in a network of 41,518 centerline miles, including 37,436 centerline miles of Interstate and 4,082 centerline miles of non-Interstate roads.
In re-designating the PHFS, to the maximum extent practicable the FHWA Administrator must use measurable data to assess the significance of goods movement, including consideration of points of origin, destinations, and linking components of the United States global and domestic supply chains. 23 U.S.C. 167(d)(2)(C). In re-designating the PHFS, the Administrator shall provide an opportunity for State freight advisory committees, as applicable, to submit additional miles for consideration. 23 U.S.C. 167(d)(2)(D). In re-designating the PHFS the Administrator shall consider the factors outlined in 23 U.S.C. 167(d)(2)(E). Those factors include: Changes in the origins and destinations of U.S. freight movement; changes in the percentage of annual daily truck traffic on principal arterials; changes in the location of key facilities; land and water ports of entry; access to energy exploration, development, installation, or production areas; access to other freight intermodal facilities, including rail, air, water, and pipeline
As calculated according to the statutory allowance, this re-designation may include up to 1,246 miles of additional PHFS mileage. The FHWA does not recommend removing previously designated routes from the PHFS unless they are no longer eligible for use by trucks. The rationale for retaining the existing routes is to ensure continued alignment with the State Freight Plans completed by all States and the District of Columbia pursuant to 49 U.S.C. 70202, which were based in part on the existing PHFS network and funding eligibilities of PHFS routes. Consideration for re-designation, therefore, focuses on technical corrections and the assignment of the additional 1,246 miles.
An assessment of changes in HPMS
One option would be to provide an equal allocation of these 960 miles to each State; however, this would yield only 18 miles of potential new PHFS for each State, the District of Columbia, and Puerto Rico. This additional mileage might be useful for CUFC or CRFC designation but may be too short to yield meaningful additions when one of the core features of the existing PHFS is that the components comprise a connected network—one of the statutory criteria for consideration.
Another potential option would be to accommodate States that have greater restrictions on the use of Interstate Highway System routes to gain eligibility for funding under the NHFP and INFRA. Currently, there are 18 States (AK, AZ, CA, FL, GA, IL, IN, MO, MT, NM, NY, NC, OH, PA, TN, TX, UT, VA) with PHFS mileage greater than or equal to 2 percent of the total PHFS mileage in all States. These States may obligate funds for projects on the PHFS, the CRFCs, and the CUFCs. Remaining States with the PHFS mileage of less than 2 percent may obligate funds for projects on all portions of the NHFN, including any portion of the Interstate Highway System in that State. Equal allocation of 960 miles of PHFS to these 18 high-mileage States would result in 53 miles of new PHFS for these States.
A third option for consideration would be to add to the PHFS any routes newly flagged as Interstate Highway System since the development of the Comprehensive PFN (built in 2015 from 2011 data). That concept, however, would not fit within the constraints of the 1,246 miles available, as 1,500 miles of new Interstate have been designated between 2011 and 2018.
This network is intended to provide the foundation for the United States' domestic supply chain and global economic competitiveness. Road projects using NHFP funds must be located on the NHFN (which includes the PHFS). The routing of freight is not static, however, and it changes in response to the factors previously listed. In light of this, the network of routes with eligibility for investment should include components that support flexibility and resilience in the freight system.
State Freight Plans provide insight into the impact of 23 U.S.C. 167(d)(2)(E), and future freight system needs. States with a State Freight Advisory Committee (SFAC) have insights into the planning, investment, and operations priorities for the public and private sector. For this reason and in response to the statutory requirement, FHWA is particularly interested in the input of SFACs regarding the routes to be considered in this re-designation.
The FHWA seeks comments from interested parties, and in particular from SFACs, on suggestions for the PHFS re-designation, including comments on the potential options identified above. A State submitting routes or feedback for consideration in the PHFS re-designation should provide a letter of support from or on behalf of their SFAC. States that have not yet convened a SFAC could do so for the purpose of responding to this RFI.
Guidance on State Freight Plans and SFACs can be found at:
Submissions should specifically address at least one of the statutory criteria of 23 U.S.C. 167(d)(2)(E) as justification for inclusion, data to support the justification, and the mileage needed to address the requirement. Any additions or deletions proposed for PHFS re-designation regarding a specific roadway facility should include location details and roadway attribute data of the proposed segments for updating the existing PHFS geospatial network. Maps and tables showing roads currently included in the PHFS of the NHFN are available by State at:
The FHWA encourages respondents to provide only that portion of geospatial data needed to identify proposed PHFS changes compatible with the State's linear referenced network data set submitted as the spatial route information in HPMS 2018 8.0 software. The FHWA will receive geospatial data only through FHWA Secure Large File Transfer Service (SLFTS). Please contact Birat Pandey (
Respondents are requested to provide a narrative description of how the proposed changes support goods movement by addressing applicable re-designation factors as found in of 23 U.S.C. 167(d)(2)(E).
Other entities wishing to provide comment are encouraged to engage with a State Freight Advisory Committee. Comments submitted by entities separate from the input of a State Freight Advisory Committee will be considered for general input into the process.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA requests public comment on an application for exemption submitted by Cleveland-Cliffs Steel, LLC (Cliffs), formerly known as ArcelorMittal Indiana Harbor, LLC, to allow its employee-drivers with commercial driver's licenses (CDLs) who transport scrap metal on two trucks between their production and shipping locations on public roads to work up to 16 hours per day and to return to work with less than the mandatory 10 consecutive hours off duty. The exemption is similar to the exemption that allows Cliffs' drivers transporting steel coils to work the same hours of services (HOS). Unlike the steel coil exemption, the scrap metal trucks would comply with the heavy hauler trailer definition, height of rear side marker lights restrictions, tire loading restrictions, and the coil securement requirements in the FMCSRs.
Comments must be received on or before
You may submit comments identified by Docket Number FMCSA-2016-0050 using any of the following methods:
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Mr. José R. Cestero, Vehicle and Roadside Operations Division, Office of Carrier, Driver, and Vehicle Safety, MC-PSV, (202) 366-5541, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. If you have questions on viewing or submitting material to the docket, call Dockets Operations at (202) 366-9826.
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA 2016-0050), indicate the specific section of this document to which the comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period.
To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to
DOT solicits comments from the public to better inform its regulatory process, in accordance with 5 U.S.C. 553(c). DOT posts these comments, without edit, including any personal information the commenter provides, to
FMCSA has authority under 49 U.S.C. 31315(b) to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the
Under 49 CFR 381.315(a), FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments and determines whether granting the exemption would likely achieve a level of safety equivalent to or greater than the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Cliffs, formerly known as ArcelorMittal, requests an exemption to allow its employee-drivers with CDLs who transport scrap metal on two trucks between their production and shipping locations to work up to 16 hours per day and return to work with less than the mandatory 10 consecutive hours off duty. The request is similar to the exemption previously granted that allows Cliffs' drivers transporting steel coils to work the same HOS, and travel the same distances and routes between their production and shipping locations. Unlike the steel coil exemption, the scrap trucks would comply with the definition of a “heavy hauler trailer” in 49 CFR 393.5; the required “height of rear side marker lights restrictions” in 49 CFR 393.11 Table1—Footnote 4; the “tire loading restrictions” in 49 CFR 393.75(f); and the “coil securement requirements” in 49 CFR 393.120.
In accordance with 49 U.S.C. 31315(b)(6), FMCSA requests public comment from all interested persons on Cliffs' exemption request. The request was submitted as part of Cliffs' exemption renewal application mentioned above. As a new request, however, it is subject to the separate notice and comment provided by this document. All comments received before the close of business on the comment closing date indicated at the beginning of this notice will be considered and will be available for examination in the docket at the location listed under the
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions for 102 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these individuals to continue to operate CMVs in interstate commerce without meeting the vision requirements in one eye.
Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before September 27, 2021.
You may submit comments identified by the Federal Docket Management System (FDMS) Docket No. FMCSA-1998-4334, Docket No. FMCSA-2000-7165, Docket No. FMCSA-2001-9561, Docket No. FMCSA-2003-14504, Docket No. FMCSA-2003-15892, Docket No. FMCSA-2004-18885, Docket No. FMCSA-2005-20027, Docket No. FMCSA-2005-20560, Docket No. FMCSA-2005-21254, Docket No. FMCSA-2005-21711, Docket No. FMCSA-2006-24783, Docket No. FMCSA-2006-25246, Docket No. FMCSA-2006-26066, Docket No. FMCSA-2007-27333, Docket No. FMCSA-2007-27515, Docket No. FMCSA-2007-27897, Docket No. FMCSA-2007-28695, Docket No. FMCSA-2008-0021, Docket No. FMCSA-2008-0398, Docket No. FMCSA-2009-0086, Docket No. FMCSA-2009-0121, Docket No. FMCSA-2010-0082, Docket No. FMCSA-2010-0161, Docket No. FMCSA-2010-0187, Docket No. FMCSA-2010-0201, Docket No. FMCSA-2010-0327, Docket No. FMCSA-2010-0372, Docket No. FMCSA-2010-0385, Docket No. FMCSA-2011-0010, Docket No. FMCSA-2011-0057, Docket No. FMCSA-2011-0092, Docket No. FMCSA-2011-0102, Docket No. FMCSA-2011-0141, Docket No. FMCSA-2011-0142, Docket No. FMCSA-2011-0189, Docket No. FMCSA-2012-0040, Docket No. FMCSA-2012-0279, Docket No. FMCSA-2012-0280, Docket No. FMCSA-2013-0021, Docket No. FMCSA-2013-0025, Docket No. FMCSA-2013-0027, Docket No. FMCSA-2013-0029, Docket No. FMCSA-2013-0030, Docket No. FMCSA-2013-0165, Docket No. FMCSA-2014-0010, Docket No. FMCSA-2014-0300, Docket No. FMCSA-2014-0304, Docket No. FMCSA-2014-0305, Docket No. FMCSA-2015-0048, Docket No. FMCSA-2015-0049, Docket No. FMCSA-2015-0052, Docket No. FMCSA-2015-0053, Docket No. FMCSA-2015-0350, Docket No. FMCSA-2016-0028, Docket No. FMCSA-2016-0033, Docket No. FMCSA-2016-0210, Docket No. FMCSA-2016-0213, Docket No. FMCSA-2016-0214, Docket No. FMCSA-2017-0016, Docket No. FMCSA-2017-0018, Docket No. FMCSA-2017-0019, Docket No. FMCSA-2017-0022, Docket No. FMCSA-2017-0023, Docket No. FMCSA-2019-0006, Docket No. FMCSA-2019-0008, Docket No. FMCSA-2019-0011, or Docket No. FMCSA-2019-0013 using any of the following methods:
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To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-1998-4334; FMCSA-2000-7165; FMCSA-2001-9561; FMCSA-2003-14504; FMCSA-2003-15892; FMCSA-2004-18885; FMCSA-2005-20027; FMCSA-2005-20560; FMCSA-2005-21254; FMCSA-2005-21711; FMCSA-2006-24783; FMCSA-2006-25246; FMCSA-2006-26066; FMCSA-2007-27333; FMCSA-2007-27515; FMCSA-2007-27897; FMCSA-2007-28695; FMCSA-2008-0021; FMCSA-2008-0398; FMCSA-2009-0086; FMCSA-2009-0121; FMCSA-2010-0082; FMCSA-2010-0161; FMCSA-2010-0187; FMCSA-2010-0201; FMCSA-2010-0327; FMCSA-2010-0372; FMCSA-2010-0385; FMCSA-2011-0010; FMCSA-2011-0057; FMCSA-2011-0092; FMCSA-2011-0102; FMCSA-2011-0141; FMCSA-2011-0142; FMCSA-2011-0189; FMCSA-2012-0040; FMCSA-2012-0279; FMCSA-2012-0280; FMCSA-2013-0021; FMCSA-2013-0025; FMCSA-2013-0027; FMCSA-2013-0029; FMCSA-2013-0030; FMCSA-2013-0165; FMCSA-2014-0010; FMCSA-2014-0300; FMCSA-2014-0304; FMCSA-2014-0305; FMCSA-2015-0048; FMCSA-2015-0049; FMCSA-2015-0052; FMCSA-2015-0053; FMCSA-2015-0350; FMCSA-2016-0028; FMCSA-2016-0033; FMCSA-2016-0210; FMCSA-2016-0213; FMCSA-2016-0214; FMCSA-2017-0016; FMCSA-2017-0018; FMCSA-2017-0019; FMCSA-2017-0022; FMCSA-2017-0023; FMCSA-2019-0006; FMCSA-2019-0008; FMCSA-2019-0011; FMCSA-2019-0013), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period.
To view comments go to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its regulatory process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statute also allows the Agency to renew exemptions at the end of the 5-year period. FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The physical qualification standard for drivers regarding vision found in 49 CFR 391.41(b)(10) states that a person is physically qualified to drive a CMV if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber.
The 102 individuals listed in this notice have requested renewal of their exemptions from the vision standard in § 391.41(b)(10), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable 2-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b), FMCSA will take immediate steps to revoke the exemption of a driver.
In accordance with 49 U.S.C. 31136(e) and 31315(b), each of the 102 applicants has satisfied the renewal conditions for obtaining an exemption from the vision standard (see 63 FR 66226, 64 FR 16517, 65 FR 33406, 65 FR 57234, 66 FR 17994, 66 FR 30502, 66 FR 41654, 67 FR 57266, 68 FR 19598, 68 FR 33570, 68 FR 35772, 68 FR 44837, 68 FR 52811, 68 FR 61860, 69 FR 52741, 69 FR 53493, 69 FR 62742, 70 FR 2701, 70 FR 16887, 70 FR 17504, 70 FR 25878, 70 FR 30997, 70 FR 30999, 70 FR 33937, 70 FR 41811, 70 FR 46567, 70 FR 48797, 70 FR 61165, 70 FR 61493, 71 FR 32183, 71 FR 41310, 71 FR 53489, 71 FR 62148, 71 FR 63379, 72 FR 180, 72 FR 1051, 72 FR 9397, 72 FR 11425, 72 FR 12666, 72 FR 21313, 72 FR 25831, 72 FR 28093, 72 FR 32703, 72 FR 32705, 72 FR 39879, 72 FR 40359, 72 FR 40362, 72 FR 46261, 72 FR 52419, 72 FR 54971, 72 FR 54972, 73 FR 15567, 73 FR 27015, 73 FR 36955, 73 FR 51336, 73 FR 61925, 73 FR 78423, 74 FR 7097, 74 FR 8302, 74 FR 8842, 74 FR 15584, 74 FR 15586, 74 FR 19267, 74 FR 20253, 74 FR 26461, 74 FR 26464, 74 FR 28094, 74 FR 34074, 74 FR 34395, 74 FR 34630, 74 FR 41971, 74 FR 43221, 74 FR 43223, 74 FR 49069, 74 FR 53581, 75 FR 19674, 75 FR 25919, 75 FR 36779, 75 FR 39725, 75 FR 39729, 75 FR 47883, 75 FR 52062, 75 FR 54958, 75 FR 59327, 75 FR 61833, 75 FR 63257, 75 FR 65057, 75 FR 70078, 75 FR 77492, 75 FR 79081, 75 FR 79083, 76 FR 5425, 76 FR 7894, 76 FR 9856, 76 FR 11215, 76 FR 12216, 76 FR 15361, 76 FR 18824, 76 FR 20076, 76 FR 20078, 76 FR 21796, 76 FR 25766, 76 FR 29022, 76 FR 29024, 76 FR 29026, 76 FR 34135, 76 FR 37168, 76 FR 37173, 76 FR 37885, 76 FR 40445, 76 FR 44082, 76 FR 44652, 76 FR 44653, 76 FR 49528, 76 FR 53708, 76 FR 53710, 76 FR 54530, 76 FR 55465, 76 FR 55469, 76 FR 61143, 76 FR 62143, 76 FR 64171, 76 FR 67246, 77 FR 23797, 77 FR 23799, 77 FR 33558, 77 FR 40945, 77 FR 40946, 77 FR 52389, 77 FR 56262, 77 FR 60008, 77 FR 60010, 77 FR 64583, 77 FR 64839, 77 FR 68200, 77 FR 71671, 77 FR 74734, 77 FR 75494, 77 FR 75496, 78 FR 800, 78 FR 10251, 78 FR 12822, 78 FR 14410, 78 FR 16761, 78 FR 16762, 78 FR 18667, 78 FR 20376, 78 FR 20379, 78 FR 24798, 78 FR 30954, 78 FR 34140, 78 FR 34141, 78 FR 34143, 78 FR 37270, 78 FR 41975, 78 FR 46407, 78 FR 47818, 78 FR 51268, 78 FR 51269, 78 FR 52602, 78 FR 56986, 78 FR 56993, 78 FR 57679, 78 FR 63307, 78 FR 68137, 78 FR 77782, 78 FR 78477, 79 FR 4531, 79 FR 14328, 79 FR 23797, 79 FR 24298, 79 FR 27365, 79 FR 46300, 79 FR 51643, 79 FR 56117, 79 FR 64001, 79 FR 65760, 79 FR 73393, 79 FR 73686, 79 FR 74169, 80 FR 603, 80 FR 2473, 80 FR 12254, 80 FR 12547, 80 FR 14223, 80 FR 15859, 80 FR 15863, 80 FR 16500, 80 FR 18693, 80 FR 20558, 80 FR 22773, 80 FR 25766, 80 FR 26139, 80 FR 29149, 80 FR 31636, 80 FR 31640, 80 FR 33009, 80 FR 33011, 80 FR 35699, 80 FR 36395, 80 FR 36398, 80 FR 37718, 80 FR 40122, 80 FR 41547, 80 FR 45573, 80 FR 48402, 80 FR 48404, 80 FR 48409, 80 FR 48411, 80 FR 48413, 80 FR 50917, 80 FR 53383, 80 FR 59225, 80 FR 62163, 80 FR 63869, 81 FR 14190, 81 FR 15401, 81 FR 20435, 81 FR 39100, 81 FR 39320, 81 FR 59266, 81 FR 66720, 81 FR 71173, 81 FR 72664, 81 FR 74494, 81 FR 80161, 81 FR 81230, 81 FR 91239, 81 FR 94013, 81 FR 96165, 81 FR 96180, 82 FR 12678, 82 FR 13043,
In accordance with 49 U.S.C. 31136(e) and 31315(b), the following groups of drivers received renewed exemptions in the month of October and are discussed below. As of October 3, 2021, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following 85 individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (63 FR 66226, 64 FR 16517, 65 FR 33406, 65 FR 57234, 66 FR 17994, 66 FR 30502, 66 FR 41654, 67 FR 57266, 68 FR 19598, 68 FR 33570, 68 FR 35772, 68 FR 44837, 69 FR 52741, 69 FR 53493, 69 FR 62742, 70 FR 2701, 70 FR 16887, 70 FR 17504, 70 FR 25878, 70 FR 30997, 70 FR 33937, 70 FR 41811, 71 FR 32183, 71 FR 41310, 71 FR 53489, 71 FR 62148, 71 FR 63379, 72 FR 180, 72 FR 1051, 72 FR 9397, 72 FR 11425, 72 FR 12666, 72 FR 21313, 72 FR 25831, 72 FR 28093, 72 FR 32703, 72 FR 32705, 72 FR 39879, 72 FR 40362, 72 FR 46261, 72 FR 52419, 72 FR 54972, 73 FR 15567, 73 FR 27015, 73 FR 36955, 73 FR 51336, 73 FR 61925, 73 FR 78423, 74 FR 7097, 74 FR 8302, 74 FR 8842, 74 FR 15584, 74 FR 15586, 74 FR 19267, 74 FR 20253, 74 FR 26461, 74 FR 26464, 74 FR 28094, 74 FR 34395, 74 FR 34630, 74 FR 41971, 74 FR 43221, 74 FR 43223, 75 FR 19674, 75 FR 25919, 75 FR 36779, 75 FR 39725, 75 FR 39729, 75 FR 47883, 75 FR 52062, 75 FR 54958, 75 FR 59327, 75 FR 61833, 75 FR 63257, 75 FR 65057, 75 FR 70078, 75 FR 77492, 75 FR 79081, 75 FR 79083, 76 FR 5425, 76 FR 7894, 76 FR 9856, 76 FR 11215, 76 FR 12216, 76 FR 15361, 76 FR 18824, 76 FR 20076, 76 FR 20078, 76 FR 21796, 76 FR 25766, 76 FR 29022, 76 FR 29024, 76 FR 29026, 76 FR 34135, 76 FR 37168, 76 FR 37173, 76 FR 37885, 76 FR 40445, 76 FR 44082, 76 FR 44652, 76 FR 44653, 76 FR 49528, 76 FR 53708, 76 FR 53710, 76 FR 54530, 76 FR 55469, 76 FR 61143, 77 FR 23797, 77 FR 23799, 77 FR 33558, 77 FR 40945, 77 FR 40946, 77 FR 52389, 77 FR 56262, 77 FR 60008, 77 FR 60010, 77 FR 64583, 77 FR 64839, 77 FR 68200, 77 FR 71671, 77 FR 74734, 77 FR 75494, 77 FR 75496, 78 FR 800, 78 FR 10251, 78 FR 12822, 78 FR 14410, 78 FR 16761, 78 FR 16762, 78 FR 18667, 78 FR 20376, 78 FR 20379, 78 FR 24798, 78 FR 30954, 78 FR 34140, 78 FR 34141, 78 FR 34143, 78 FR 37270, 78 FR 41975, 78 FR 46407, 78 FR 47818, 78 FR 51268, 78 FR 51269, 78 FR 52602, 78 FR 56986, 78 FR 56993, 78 FR 57679, 78 FR 63307, 78 FR 77782, 78 FR 78477, 79 FR 4531, 79 FR 14328, 79 FR 23797, 79 FR 24298, 79 FR 27365, 79 FR 46300, 79 FR 51643, 79 FR 56117, 79 FR 64001, 79 FR 65760, 79 FR 73393, 79 FR 73686, 79 FR 74169, 80 FR 603, 80 FR 2473, 80 FR 12254, 80 FR 12547, 80 FR 14223, 80 FR 15859, 80 FR 15863, 80 FR 16500, 80 FR 18693, 80 FR 20558, 80 FR 22773, 80 FR 25766, 80 FR 26139, 80 FR 29149, 80 FR 31636, 80 FR 31640, 80 FR 33009, 80 FR 33011, 80 FR 35699, 80 FR 36395, 80 FR 36398, 80 FR 37718, 80 FR 40122, 80 FR 41547, 80 FR 45573, 80 FR 48402, 80 FR 48404, 80 FR 48409, 80 FR 48411, 80 FR 48413, 80 FR 50917, 80 FR 53383, 80 FR 59225, 80 FR 62163, 80 FR 63869, 81 FR 14190, 81 FR 15401, 81 FR 20435, 81 FR 39100, 81 FR 39320, 81 FR 59266, 81 FR 66720, 81 FR 71173, 81 FR 72664, 81 FR 74494, 81 FR 80161, 81 FR 81230, 81 FR 91239, 81 FR 94013, 81 FR 96165, 81 FR 96180, 82 FR 12678, 82 FR 13043, 82 FR 13048, 82 FR 13187, 82 FR 15277, 82 FR 18818, 82 FR 18949, 82 FR 18954, 82 FR 22379, 82 FR 23712, 82 FR 24430, 82 FR 28734, 82 FR 32919, 82 FR 33542, 82 FR 35043, 82 FR 35050, 82 FR 37499, 82 FR 37504, 82 FR 47295, 82 FR 47309, 82 FR 47312, 83 FR 4537, 83 FR 15195, 83 FR 24146, 83 FR 28325, 83 FR 34661, 83 FR 40638, 83 FR 53724, 84 FR 2311, 84 FR 2314, 84 FR 2326, 84 FR 11859, 84 FR 12665, 84 FR 16320, 84 FR 16333, 84 FR 21397, 84 FR 21401, 84 FR 27685, 84 FR 27688, 84 FR 33801, 84 FR 47038, 84 FR 47045, 84 FR 47052, 84 FR 47057, 84 FR 52166):
The drivers were included in docket numbers FMCSA-1998-4334, FMCSA-2000-7165, FMCSA-2001-9561, FMCSA-2003-14504, FMCSA-2004-18885, FMCSA-2005-20027, FMCSA-2005-20560, FMCSA-2006-24783, FMCSA-2006-25246, FMCSA-2006-26066, FMCSA-2007-27333, FMCSA-2007-27515, FMCSA-2007-27897, FMCSA-2007-28695, FMCSA-2008-0021, FMCSA-2008-0398, FMCSA-2009-0086, FMCSA-2009-0121, FMCSA-2010-0082, FMCSA-2010-
As of October 4, 2021, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following three individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (84 FR 46088, 84 FR 58437):
The drivers were included in docket number FMCSA-2019-0013. Their exemptions are applicable as of October 4, 2021 and will expire on October 4, 2023.
As of October 19, 2021, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following four individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (82 FR 43647, 83 FR 2289, 84 FR 47052):
The drivers were included in docket number FMCSA-2017-0023. Their exemptions are applicable as of October 19, 2021 and will expire on October 19, 2023.
As of October 23, 2021, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following four individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (78 FR 47818, 78 FR 63307, 80 FR 59225, 82 FR 47312, 84 FR 47052):
The drivers were included in docket number FMCSA-2013-0165. Their exemptions are applicable as of October 23, 2021 and will expire on October 23, 2023.
As of October 24, 2021, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following four individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (70 FR 30999, 70 FR 46567, 70 FR 48797, 70 FR 61493, 72 FR 40359, 72 FR 54971, 74 FR 34074, 74 FR 49069, 76 FR 62143, 78 FR 77782, 80 FR 59225, 82 FR 47312, 84 FR 47052):
The drivers were included in docket numbers FMCSA-2005-21254 and FMCSA-2005-21711. Their exemptions are applicable as of October 24, 2021 and will expire on October 24, 2023.
As of October 30, 2021, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following individual has satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (68 FR 52811, 68 FR 61860, 70 FR 61165, 74 FR 53581, 76 FR 64171, 78 FR 68137, 80 FR 59225, 82 FR 47312, 84 FR 47052):
The driver was included in docket number FMCSA-2003-15892. The exemption is applicable as of October 30, 2021 and will expire on October 30, 2023.
As of October 31, 2021 and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following individual has satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (76 FR 55465, 76 FR 67246, 78 FR 77782, 80 FR 59225, 82 FR 47312, 84 FR 47052):
The driver was included in docket number FMCSA-2011-0189. The exemption is applicable as of October 31, 2021 and will expire on October 31, 2023.
The exemptions are extended subject to the following conditions: (1) Each driver must undergo an annual physical examination (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a certified medical examiner (ME), as defined by § 390.5, who attests that the driver is otherwise physically qualified under § 391.41, (2) each driver must provide a copy of the ophthalmologist's or optometrist's report to the ME at the time of the annual medical examination, and (3) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file or keep a copy of his/her driver's qualification if he/her is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption, (2) the exemption has resulted in a lower level of safety than was maintained before it was granted, or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b).
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 102 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the vision requirement in § 391.41(b)(10), subject to the requirements cited above. In accordance with 49 U.S.C. 31136(e) and 31315(b), each exemption will be valid for two years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
The Federal Motor Carrier Safety Administration (FMCSA) requests public comment on an application for exemption from Complete Innovations, Inc. (Complete Innovations) to allow its Vision 2.0 device to be mounted lower in the windshield on commercial motor vehicles than is currently permitted.
Comments must be received on or before September 27, 2021.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2021-0119 using any of the following methods:
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Mr. Jose R. Cestero, Vehicle and Roadside Operations Division, Office of Carrier, Driver, and Vehicle Safety, MC-PSV, (202) 366-5541, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA-2021-0119), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comments online, go to
FMCSA has authority under 49 U.S.C. 31315(b) to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Under 49 CFR 381.315(a), FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments and determines whether granting the exemption would likely achieve a level of safety equivalent to or greater than the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
The Federal Motor Carrier Safety Regulations require devices meeting the definition of “vehicle safety technology,” including Complete Innovations' Vision 2.0 device, to be mounted (1) not more than 4 inches below the upper edge of the area swept by the windshield wipers, or (2) not more than 7 inches above the lower edge of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals. Complete Innovations has applied for an exemption from 49 CFR 393.60(e)(1) to allow its Vision 2.0 device to be mounted lower in the windshield than is currently permitted. A copy of the application is included in the docket referenced at the beginning of this notice.
In accordance with 49 U.S.C. 31315(b)(6), FMCSA requests public comment from all interested persons on Complete Innovations' application for an exemption from 49 CFR 393.60(e)(1). All comments received before the close of business on the comment closing date indicated at the beginning of this notice will be considered and will be available for examination in the docket at the location listed under the
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, this notice announces that FRA is forwarding the Information Collection Request (ICR) abstracted below to the Office of Management and Budget (OMB) for review and comment. The ICR describes the information collection and its expected burden. On May 17, 2021, FRA published a notice providing a 60-day period for public comment on the ICR.
Interested persons are invited to submit comments on or before September 27, 2021.
Written comments and recommendations for the proposed ICR should be sent within 30 days of publication of this notice to
Ms. Hodan Wells, Information Collection Clearance Officer at email:
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages.
Before OMB decides whether to approve the proposed collection of information, it must provide 30 days for public comment. Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published. 44 U.S.C. 3507(b)-(c); 5 CFR 1320.10(b);
Comments are invited on the following ICR regarding: (1) Whether the information collection activities are necessary for FRA to properly execute its functions, including whether the information will have practical utility; (2) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (3) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (4) ways to minimize the burden of information collection activities on the public, including the use of automated collection techniques or other forms of information technology.
The summary below describes the ICR that FRA will submit for OMB clearance as the PRA requires:
Under 44 U.S.C. 3507(a) and 5 CFR 1320.5(b) and 1320.8(b)(3)(vi), FRA informs all interested parties that a respondent is not required to respond to, conduct, or sponsor a collection of information that does not display a currently valid OMB control number.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the Ford Motor Company (Ford) petition for exemption from the Federal Motor Vehicle Theft Prevention Standard (theft prevention standard) for its confidential vehicle line beginning in model year (MY) 2022. The petition is granted because the agency has determined that the antitheft device to be placed on the line as standard equipment is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard. Ford also requested confidential treatment for specific information in its petition. Therefore, no confidential information provided for purposes of this notice has been disclosed.
The exemption granted by this notice is effective beginning with the 2022 model year.
Carlita Ballard, Office of International Policy, Fuel Economy, and Consumer Programs, NHTSA, West Building, W43-439, NRM-310, 1200 New Jersey Avenue SE, Washington, DC 20590. Ms. Ballard's phone number is (202) 366-5222. Her fax number is (202) 493-2990.
Under 49 U.S.C. chapter 331, the Secretary of Transportation (and the National Highway Traffic Safety Administration (NHTSA) by delegation) is required to promulgate a theft prevention standard to provide for the identification of certain motor vehicles and their major replacement parts to impede motor vehicle theft. NHTSA promulgated regulations at 49 CFR part 541 (theft prevention standard) to require parts-marking for specified passenger motor vehicles and light trucks. Pursuant to 49 U.S.C. 33106, manufacturers that are subject to the parts-marking requirements may petition the Secretary of Transportation for an exemption for a line of passenger motor vehicles equipped with an antitheft device as standard equipment that the Secretary decides is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements. In accordance with this statute, NHTSA promulgated 49 CFR part 543, which establishes the process through which manufacturers may seek an exemption from the theft prevention standard.
49 CFR 543.5 provides general submission requirements for petitions and states that each manufacturer may petition NHTSA for an exemption of one vehicle line per model year. Among other requirements, manufacturers must identify whether the exemption is sought under section 543.6 or section 543.7. Under section 543.6, a manufacturer may request an exemption by providing specific information about the antitheft device, its capabilities, and the reasons the petitioner believes the device to be as effective at reducing and deterring theft as compliance with the parts-marking requirements. Section 543.7 permits a manufacturer to request an exemption under a more streamlined process if the vehicle line is equipped with an antitheft device (an “immobilizer”) as standard equipment that complies with one of the standards specified in that section.
Section 543.8 establishes requirements for processing petitions for exemption from the theft prevention standard. As stated in section 543.8(a), NHTSA processes any complete exemption petition. If NHTSA receives an incomplete petition, NHTSA will notify the petitioner of the deficiencies. Once NHTSA receives a complete petition the agency will process it and, in accordance with section 543.8(b), will grant the petition if it determines that, based upon substantial evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of part 541.
Section 543.8(c) requires NHTSA to issue its decision either to grant or to deny an exemption petition not later than 120 days after the date on which a complete petition is filed. If NHTSA does not make a decision within the 120-day period, the petition shall be deemed to be approved and the manufacturer shall be exempt from the standard for the line covered by the petition for the subsequent model year.
Sections 543.8(f) and (g) apply to the manner in which NHTSA's decisions on petitions are to be made known. Under section 543.8(f), if the petition is sought under section 543.6, NHTSA publishes a notice of its decision to grant or deny the exemption petition in the
This grant of petition for exemption considers Ford Motor Corporation's (Ford) petition for its confidential vehicle line beginning in MY 2022.
Pursuant to 49 CFR part 543,
More specifically, section 543.6(a)(1) requires petitions to include a statement that an antitheft device will be installed as standard equipment on all vehicles in the line for which the exemption is sought. Under section 543.6(a)(2), each petition must list each component in the antitheft system, and include a diagram showing the location of each of those components within the vehicle. As required by section 543.6(a)(3), each petition must include an explanation of the means and process by which the
In addition to providing information about the antitheft device and its functionality, petitioners must also submit the reasons for their belief that the antitheft device will be effective in reducing and deterring motor vehicle theft, including any theft data and other data that are available to the petitioner and form a basis for that belief,
The following sections describe Ford's petition information provided pursuant to 49 CFR part 543,
In a petition dated November 26, 2020 and updated on April 30, 2021,
In its petition, Ford provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for the confidential vehicle line. Ford stated that its MY 2022 confidential vehicle line will be installed with a passive, transponder based, electronic engine immobilizer antitheft device as standard equipment. Specifically, Ford stated that its vehicle line will be installed with the SecuriLock Passive Antitheft Engine Immobilizer System (PATS). Key components of its SecuriLock antitheft device will include a key, powertrain control module (PCM) or hybrid powertrain control module (HPCM), body control module (BCM), radio transceiver module and an anti-lock braking system module (ABS). Ford also stated that its vehicle line will be equipped with a hood release, counterfeit resistant VIN label, secondary VINs inscribed on the body and a cabin accessible with a valid keycode as standard antitheft features.
Ford also stated that it will offer its intelligent access with push button start (IAwPB) system as optional equipment. For purposes of the theft prevention standard, NHTSA generally only considers the antitheft device equipped on the vehicle as standard equipment. However in this case, while the SecuriLock PATS and IAwPB systems are mutually exclusive antitheft systems, NHTSA has previously approved the IAwPB antitheft system as standard equipment for the Ford Bronco Sport vehicle line. The IAwPB system is described in the grant of petition for exemption published in the
Pursuant to section 543.6(a)(3), Ford explained that its SecuriLock system is activated when the ignition key is turned to the start position allowing the transceiver module to read the ignition key code and transmit an encrypted message from the key code to the instrument cluster, this encrypted message will then determine that the key is valid and will authorize the engine to start by sending a separate encrypted message to the PCM or the HPCM. Ford also stated that the powertrain will only function if the key code matches the unique identification key code that was previously programmed into the PCM/HPCM. If the codes do not match, the engine starter, ignition spark and the fuel will be disabled, once active, no other action from the operator is required. Ford further stated that the integration of the transponder into the normal operation of the ignition key assures activation of the system. Deactivation of the immobilizer system occurs automatically each time an engine start occurs.
As required in section 543.6(a)(3)(v), Ford provided information on the reliability and durability of its proposed device. To ensure reliability and durability of the device, Ford conducted tests based on its own specified standards. Ford provided a detailed list of the tests conducted. Additionally, Ford stated that its device is extremely reliable and durable because several features make it difficult to defeat with communications between the SecuriLock transponder and the PCM/HPCM that are encrypted because there are 18 quintillion (1.8 × 10
Ford referenced National Insurance Crime Bureau (NICB) data for the Ford EcoSport (a vehicle size and segment comparable to the line covered by this petition), which showed 2 thefts per thousand vehicles since the EcoSport's production start. The Ford EcoSport was granted an exemption for its MY 2018 vehicles (See 82 FR 22060, May 11, 2017). Ford also stated that its SecuriLock system installed on its confidential vehicle line is similar in design and implementation to the system offered on the MY 2021 Ford Bronco Sport vehicle line, which is detailed in the August 2020 notice discussed above. Ford further stated that its sophisticated design and operation of its SecuriLock immobilizer system renders ineffective conventional theft methods, such as hot-wiring the ignition cylinder and drive away thefts are virtually eliminated with this antitheft system. Ford concluded that they believed the vehicle line covered by the petition will have a very low theft rate based on the theft rate of the Ford EcoSport, a vehicle of a similar size with similar equipment.
Pursuant to 49 U.S.C. 33106 and 49 CFR 543.8(b), the agency grants a petition for exemption from the parts-marking requirements of part 541, either in whole or in part, if it determines that, based upon substantial evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of part 541. The agency finds that Ford has provided adequate reasons for its belief that the antitheft device for its vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard. This conclusion is based on the information Ford provided about its antitheft device. NHTSA believes, based on Ford's supporting evidence, that the antitheft device described for its vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard.
The agency concludes that Ford's antitheft device will provide four types of performance features listed in section 543.6(a)(3): Promoting activation; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
The agency notes that 49 CFR part 541, Appendix A-1, identifies those lines that are exempted from the theft prevention standard for a given model year. 49 CFR 543.8(f) contains publication requirements incident to the disposition of all part 543 petitions. Advanced listing, including the release of future product nameplates, the beginning model year for which the petition is granted and a general description of the antitheft device is necessary in order to notify law enforcement agencies of new vehicle lines exempted from the parts-marking requirements of the theft prevention standard.
If Ford decides not to use the exemption for its requested vehicle line, the manufacturer must formally notify the agency. If such a decision is made, the line must be fully marked as required by 49 CFR 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if Ford wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Section 543.8(d) states that a part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the antitheft device on which the line's exemption is based. Further, section 543.10(c)(2) provides for the submission of petitions “to modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in the exemption.”
The agency wishes to minimize the administrative burden that section 543.10(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be de minimis. Therefore, NHTSA suggests that if Ford contemplates making any changes, the effects of which might be characterized as de minimis, it should consult the agency before preparing and submitting a petition to modify.
For the foregoing reasons, the agency hereby grants in full Ford's petition for exemption for the confidential vehicle line from the parts-marking requirements of 49 CFR part 541, beginning with its MY 2022 vehicles.
Issued under authority delegated in 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice and request for comments on a request for approval.
NHTSA invites public comments about our intention to request approval from the Office of Management and Budget (OMB) for an information collection currently in use. Before a Federal agency can collect certain information from the public, it must receive approval from OMB. Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatements of previously approved collections. This document describes a collection of information on event data recorders (EDRs) for which NHTSA intends to seek OMB approval. The information collection currently does not have an OMB control number.
Written comments should be submitted by October 25, 2021.
You may submit comments [identified by Docket No. NHTSA-2021-0058] through one of the following methods:
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For additional information or access to background documents, contact Carla Rush, NHTSA, 1200 New Jersey Avenue SE, West Building, Room W43-417, NRM-100, Washington, DC 20590. Telephone number: 202-366-1810.
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• Record 15 essential data elements;
• Record up to 30 additional data elements if the vehicle is equipped to record these elements;
• Record these data elements in a standardized format, with specifications for range, accuracy, resolution, sampling rate, recording duration, and filter class;
• Function after full-scale vehicle crash tests specified in FMVSS Nos. 208 and 214; and
• Have the capacity to record two events in a multi-event crash.
In addition, Part 563 requires vehicle manufacturers to make a retrieval tool for the EDR information commercially available, and include a standardized statement in the owner's manual indicating that the vehicle is equipped with an EDR and describing its purpose. Part 563 helps ensure that EDRs record, in a readily usable manner, data valuable for effective crash investigations and for analysis of safety equipment performance (
NHTSA issued part 563 to improve crash data collection by standardizing data recorded on EDRs to help provide a better understanding of the circumstances in which crashes and injuries occur, which will in turn lead to the development of safer vehicle designs. EDR data are used to improve the quality of crash data collection to assist safety researchers, vehicle manufacturers, and the agency in crash investigations to understand vehicle crashes better and more precisely. Similarly, vehicle manufacturers are able to utilize EDRs in improving vehicle designs and developing more effective vehicle safety countermeasures, and EDR data may be used by Advanced Automatic Crash Notification (AACN) systems to aid emergency response teams in assessing the severity of a crash and estimating the probability of serious injury.
Additionally, the agency's experience in handling unintended acceleration and pedal entrapment allegations has demonstrated that, if a vehicle is equipped with an EDR, the data from that EDR can improve the ability of both the agency and the vehicle's manufacturer to identify and address safety concerns associated with possible defects in the design or performance of the vehicle.
The cost of data storage, long-term or short-term, has drastically reduced over the years.
In addition, NHTSA now estimates that 99.5 percent of model year 2021 light vehicles have a compliant EDR, meaning manufacturers have largely already incurred the cost of meeting the part 563 requirements. Given that EDRs are installed on nearly all new light vehicles, the large amount of storage that is part of the air bag control module (32 kb or 64 kb), the small fraction required for EDR data (<1 kb), and the negligible costs for data storage, NHTSA continues to believe that there would be no additional costs or negligible costs associated with the Part 563 requirements. Therefore, the cost burden for this collection of information is discussed qualitatively.
Part 563 only applies to vehicles voluntarily-equipped with EDRs. Therefore, any burden is based on the differences in cost between a compliant and non-compliant EDR. In considering additional burden for compliant EDRs, NHTSA considered: (1) The additional burden of meeting the 10-day data crash survivability requirement; and (2) the additional burden of meeting the data format requirements. Part 563 requires that an EDR must function during and after the compliance tests specified in FMVSS Nos. 208 and 214. The EDR's stored data is required to be downloadable 10 days after the crash tests. This requirement provides a basic functioning and survivability level for EDRs, but does not ensure that EDRs survive extremely severe crashes, fire, or fluid immersion. The burden for data survivability can include costs for an additional power supply and enhancements for computer area network (CAN) such as wiring, data bus, and harness. However, before part 563 was established the agency had not documented an EDR survivability problem except in rare and extremely severe events such as fire and submergence. Thus, the agency does not believe vehicle manufacturers incur additional costs to comply with the ability to retrieve the essential data elements 10 days after the crash test.
With regard to the memory capacity required to meet the part 563 data requirements, due to proprietary concerns, the adequacy of existing memory capacity of part 563 non-compliant vehicles is not known. However, we believe that the part 563 requirements are comparable to the current industry EDR practices. In terms of the burden associated with software algorithm changes to meet the data format requirements, the agency believes that, in the event a vehicle manufacturer needs to redesign their software algorithm, the redesign would be minor (
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of petition for determination of import eligibility.
Diversified Vehicle Services, Inc. (DVS or Petitioner) has petitioned NHTSA for a decision that model year (MY) 2014-2018 Chevrolet Cheyenne Trucks (TKs), which were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS), are eligible for importation into the United States. In its petition, DVS claims that these vehicles are eligible for import because they are substantially similar to Chevrolet Silverado TKs originally manufactured for sale in the United States and certified by their manufacturer as complying with all applicable FMVSS, and because they are capable of being readily altered to conform to the standards. This document announces the denial of DVS's petition.
Robert Mazurowski, Office of Vehicle Safety Compliance, NHTSA (202-366-1012).
A motor vehicle that was not originally manufactured to conform to all applicable FMVSS may be eligible for import into the United States if NHTSA determines that the motor vehicle is: (1) Substantially similar to a motor vehicle originally manufactured for importation into and certified for sale in the United States, (2) of the same model year as the model of the motor
Petitions for import eligibility decisions may be submitted by either manufacturers or registered importers and must comply with the requirements set forth in 49 CFR 593.6. A petition based on the existence of a substantially similar conforming vehicle manufactured for import and certified for sale in the United States must include, among other things, “[d]ata, views and arguments demonstrating that the vehicle [which is the subject of the petition] is substantially similar to the vehicle identified by the petitioner” as a comparison vehicle.
As specified in 49 CFR 593.7, NHTSA publishes notice of each petition that it receives in the
DVS, a registered importer located in Indianapolis, Indiana, has petitioned NHTSA to decide whether nonconforming MY 2014-2018 Chevrolet Cheyenne TKs (the Subject Vehicles) are eligible for importation into the United States. Petitioner contends the Subject Vehicles are substantially similar to MY 2014-2018 Chevrolet Silverado TKs (the Comparison Vehicles) sold in the United States and certified by their manufacturer as conforming to all applicable FMVSS. The Chevrolet Cheyenne is a pick-up truck manufactured by General Motors (GM) for sale in Mexico. GM does not sell Cheyenne pick-up trucks in the United States.
DVS's petition requests an import eligibility decision for five separate model years (MY 2014-2018) of the Subject Vehicles, but it does not distinguish between these different model years, does not state that it included a vehicle from each of these five model years in its analysis, and does not state that it compared each model year of the Subject Vehicles to the same model year of the Comparison vehicles.
Petitioner nonetheless asserts it compared the Subject Vehicles to the Comparison Vehicles and “believe[s]” they are substantially similar in that the Subject Vehicles comply with “the great majority of the standards” to which the Comparison Vehicles are certified. Petitioner states that it further “believe[s]” that the Subject Vehicles are capable of being readily modified to conform to all remaining standards.” Petitioner states that these beliefs are “based on information obtained during a detailed inspection of the [Subject Vehicles] for which this determination is sought” and that it “reviewed all available parts, service, and sales literature in order to thoroughly compare the two vehicles.” Petitioner provides no details regarding its “detailed inspection” and does not identify any of the “parts, service, and sales literature” it reviewed.
Specifically, Petitioner claims that, based on this comparison, it determined that the Subject Vehicles, as originally manufactured, conform to: FMVSS Nos. 102,
Petitioner states that the Subject Vehicles, as built, are noncompliant with FMVSS No. 101,
A Notice of Receipt of DVS's Petition was published in the
GM does not recommend that these vehicles be granted eligibility for importation into the United States. The owners of these vehicles will find it very difficult or impossible to get safety-critical repairs in the US.
A petition to determine import eligibility must include all information required under the applicable authorities and must also include data, views, and arguments demonstrating the conclusions advanced by the petition. DVS's petition fails to meet these requirements because it does not include sufficient supporting information and relies almost exclusively on unsupported conclusory allegations. The petition fails to distinguish between five different model years of the Subject Vehicles and Comparison Vehicles or even confirm that DVS compared vehicles of the same model year.
As the basis for its assertion that the Subject Vehicles are compliant with the FMVSS identified above, Petitioner simply repeats the statement that the “MX-Cheyenne complies with the requirements of this standard and is identical to the U.S.-vehicle with respect to those requirements” following a reference to each of these standards. Petitioner offers no factual or analytical support for any of these conclusory assertions. For two of the standards (FMVSS No. 138 (tire pressure monitoring systems) and FMVSS No. 208 (occupant crash protection)), Petitioner identifies various components by part number and states that the Subject Vehicles and the Comparison Vehicles employ identical components. Petitioner did not submit any parts catalogs or any other technical resource for any model year of either the Subject Vehicles or the Comparison Vehicles to verify these assertions and fails to explain why the usage of identical parts would demonstrate that the Subject Vehicles, as built, were compliant with these standards. For FMVSS No. 214 (side impact resistance), Petitioner states that it “removed the interior trim on a door of [a Subject Vehicle] and confirm[ed] that the vehicle is originally equipped with door beams to comply with the requirements of this standard.” This level of examination and analysis does not demonstrate compliance for the Subject Vehicles because meeting the performance requirements of FMVSS No. 214 requires far more than the existence of door beams.
As part of its analysis of DVS's petition, NHTSA requested additional information from GM, the manufacturer of both the Subject Vehicles and the Comparison Vehicles.
In regard to the Subject Vehicles, GM also explained that tire pressure monitoring systems (TPMS) are not required in Mexico, and each imported vehicle would therefore have to be checked to verify that it had an optional FMVSS No. 138 compliant TPMS installed at the time of manufacture. This information directly contradicts Petitioner's assertion that all Subject Vehicles, as built, are equipped with a FMVSS No. 138 compliant TPMS. Finally, GM explained that there is a unique engine and manual transmission combination available for the Subject Vehicles in Mexico, and that GM has no documentation demonstrating compliance of vehicles so equipped with FMVSS No. 102 (transmission shift position sequence), FMVSS No. 114 (rollaway prevention), and FMVSS No. 124 (accelerator control). Petitioner provided no information regarding this particular engine and transmission combination, no basis for identifying its presence or absence in the Subject Vehicles, and no information regarding whether Subject Vehicles with this unique engine and transmission combination could be modified to conform with the relevant FMVSS.
Petitioner has failed to demonstrate that the Subject Vehicles are substantially similar to the Comparison Vehicles, failed to demonstrate that its comparison of the Subject Vehicles to the Comparison Vehicles involved vehicles of the same model year, and failed to demonstrate that the Subject Vehicles are either compliant with or capable of being readily altered to comply with all applicable FMVSS. The petition is therefore denied. Pursuant to 49 CFR 593.7(e), NHTSA will not consider a new petition covering the models that are the subject of this decision until at least three months from the date of this notice of denial.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of petition.
Combi USA (Combi), has determined that certain Combi USA BabyRide rear-facing child restraint
Kelley Adams-Campos, Safety Compliance Engineer, NHTSA, Office of Vehicle Safety Compliance,
Combi has determined that certain Combi USA BabyRide rear-facing child restraint systems manufactured between May 1, 2016, and August 31, 2019, do not fully comply with the requirements of paragraph S5.4.1.2(a) of FMVSS No. 213,
Notice of receipt of Combi's petition was published with a 30-day public comment period, on April 22, 2021, in the
Approximately 13,880 Combi USA BabyRide rear-facing child restraint systems with model number 378099, manufactured between May 1, 2016, and August 31, 2019, are potentially involved.
Combi explains that the noncompliance is that the subject rear-facing child restraint systems are equipped with 25-mm-wide webbing used in the center front harness adjuster that does not comply with the minimum breaking strength requirements as required in paragraph S5.4.1.2(a) of FMVSS No. 213. Specifically, the subject child restraint systems have an initial breaking strength of between 9,622 N and 10,136 N (median load 9,871 N), which is less than the required minimum breaking strength of 11,000 N.
Paragraph S5.4.1.2(a) of FMVSS No. 213 includes the requirements relevant to this petition. The webbing of belts provided with a child restraint system and used to secure a child to a child restraint system shall have a minimum breaking strength for new webbing of not less than 11,000 N when tested in accordance with paragraph S5.1 of FMVSS No. 209. Each value shall be not less than 11,000 N. “New webbing” means webbing that has not been exposed to abrasion, light, or micro-organisms as specified elsewhere in FMVSS No. 213.
The following views and arguments presented in this section, “V. Summary of Combi's Petition,” are the views and arguments provided by Combi and do not reflect the views of the Agency. Combi describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, Combi submitted the following reasoning:
1. Combi has not received any reports from consumers related to the strength of the 25-mm-wide webbing in the BabyRide infant car seat.
2. The BabyRide with the 25-mm-wide webbing at issue complies with dynamic testing requirements of FMVSS No. 213, paragraph S5.1, in testing conducted by both NHTSA and Combi between 2016 and 2019. This includes testing with the 12-month-old CRABI ATD that represents the heaviest child that the BabyRide infant car seat is used with.
3. The actual webbing strength of the 25-mm-wide webbing far exceeds the strength needed for the application of an infant car seat used with children 10 kg (22 lbs.) or less. When tested with the 12-month-old CRABI ATD that weighs 22 lbs., representing the maximum weight occupant for the car seat, the maximum load that the 25-mm-wide webbing is subjected to during an FMVSS No. 213 compliance crash test is 302.9 N. Combi believes that this peak loading represents the maximum load applied to the 25-mm-wide webbing in all Combi USA BabyRide infant car seats. Combi bases that belief on the total belt load applied to the vehicle lap belt and LATCH belt recorded in the 2016 UMTRI and 2021 UMTRI testing with the 12-month-old ATD. The total vehicle lap belt load recorded in the 2021 test (AG2101) of 4206 N (945.6 lbs.) is consistent with the total vehicle lap belt and LATCH belt loading recorded in the 2016 tests conducted by UMTRI with the 12-month-old ATD of 4,067.2 N (851.4 lbs.) in Test TT1603 and 3,989.1 N (896.8 lbs.) in Test TT1604. The maximum load measured in the 25-mm-wide webbing in the BabyRide infant car seat is much lower than the total load applied to the vehicle lap belt and LATCH belt as the car seat is for rear-facing use only and for use with a child weighing 10 kg (22 lb.) or less. In a rear-facing car seat, a significant portion of the load from the ATD during the dynamic test is transferred and supported by the seatback, thus reducing the maximum load applied to the harness system including the 25-mm-wide webbing. Combi has reviewed the harness webbing specifications defined in FMVSS No. 213 and notes the webbing specified is for use with children up to 80 lbs. (36 kg), and sufficiently strong to restrain an 80 lb occupant when forward facing. Combi states that the loads carried by the seatback support surface significantly reduce the loading experienced by the harness webbing and center front adjuster webbing as shown in the UMTRI test AG2101, and that this load is significantly lower than the load applied to the harness and center front adjuster webbing when used in a forward-facing restraint system that is used up to 80 lbs. Combi asserts that rear-facing use of the BabyRide car seat with children 22 lbs. or less will subject the harness belts and adjuster belt to only a small percentage of the load applied when forward-facing with an occupant weighing 80 lbs. Combi believes that the initial minimum breaking strength of 11,000 N is much higher than the strength needed for a rear-facing car seat like the BabyRide even when occupied by a child at the maximum weight and that the 25-mm-wide webbing used in the BabyRide exceeds the forces applied in a crash.
4. Combi cites the webbing requirements in FMVSS No. 213 for new webbing breaking strength, S5.4.1.2(a), webbing strength after abrasion,
Combi concludes that the subject noncompliance is inconsequential as it relates to motor vehicle safety and 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, should be granted.
The burden of establishing the inconsequentiality of a failure to comply with a
An important issue to consider in determining inconsequentiality is the safety risk to individuals who experience the type of event against which the recall would otherwise protect.
Combi identifies no receipt of any reports from consumers related to the strength of the 25-mm-wide webbing. As discussed above, the Agency finds the absence of consumer complaints (or reports as Combi noted) insufficient evidence of an inconsequential effect on the safety of the webbing.
Next, Combi argues that, based on measured forces acting on the 25-mm-wide webbing when subjected to the dynamic testing requirements of FMVSS No. 213 using the 22 lbs. 12-month-old CRABI ATD, the maximum weight occupant for the car seat, the subject child restraints present no motor vehicle safety risk since the measured forces acting on the 25-mm-wide webbing were no higher than 320.9 N. Combi also believes that this represents the maximum load applied to 25-mm-wide webbing in all Combi USA BabyRide Infant Car Seats, based on the total belt load applied to the vehicle lap belt and LATCH belt recorded in 2016 and 2021 UMTRI testing with the 12-month-old ATD.
Consistent with the Agency's decision to deny Combi's 2013 petition
Combi asserts that in a rear-facing car seat, a significant portion of the load from the ATD during the dynamic test is transferred and supported by the seat back, thus reducing the maximum load applied to the harness system including the 25-mm-wide webbing. The petitioner's reasoning is unpersuasive. The minimum initial webbing strength requirements apply to the component level,
Combi cites the webbing requirements in FMVSS No. 213 for new webbing breaking strength, S5.4.1.2(a), webbing strength after abrasion, S5.4.1.2(b)(1), and webbing strength after exposure to light, S5.4.1.2(c)(1) and summarizes results for testing based on these requirements performed by Combi and/
Combi also submitted test data for two samples of the 25-mm-wide webbing after being subjected to abrasion and referenced a 98.8 percent retention of the original breaking strength in NHTSA's testing of the 25-mm-wide webbing after exposure to light. The Agency is not opining on the compliance of these results as they are not germane to the subject noncompliance, thus not dispositive of the inconsequentiality analysis.
Combi believes that the initial minimum breaking strength of 11,000 N is much higher than the strength needed for a rear-facing car seat like the BabyRide, even when occupied by a child at the maximum weight, and that the 25-mm-wide webbing used in the BabyRide exceeds the forces applied in a crash. FMVSS No. 213 requires an absolute minimum initial breaking strength for new webbing to provide a margin of safety for use throughout the life of a child restraint. In the Agency's analysis in determining a minimum breaking strength requirement for new webbing, published in a Notice of Proposed Rulemaking (NPRM)
In consideration of the foregoing, NHTSA has decided that Combi has not met its burden of persuasion that the subject FMVSS No. 213 noncompliance is inconsequential to motor vehicle safety. Accordingly, Combi's petition is hereby denied, and Combi is consequently obligated to provide notification of and free remedy for that noncompliance under 49 U.S.C. 30118 and 30120.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of petition denial.
Cooper Tire & Rubber Company (Cooper Tire) has determined that certain Cooper brand tires do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 139,
Abraham Diaz, Office of Vehicle Safety Compliance, NHTSA, telephone (202) 366-5310, facsimile (202) 366-3081.
Cooper Tire has determined that certain Cooper brand tires do not fully comply with paragraph S5.5.1 of FMVSS No. 139,
Notice of receipt of Cooper Tire's petition was published with a 30-day public comment period, on December 6, 2018, in the
Approximately 327 Evolution H/T size 245/70R16 tubeless radial tires, manufactured between June 4, 2017, and June 10, 2017, are potentially involved.
Cooper Tire explains that the noncompliance is that the subject tires were molded with an incorrectly ordered serial week and year on the outboard sidewall. This date is required by paragraph S5.5.1(b) of FMVSS No. 139. Specifically, the subject tires were manufactured with serial week “1723” when they should have been manufactured with serial week “2317.”
Paragraph S5.5.1(b) of FMVSS No. 139, includes the requirements relevant to this petition:
• For tires manufactured on or after September 1, 2009, each tire must be
• Except for retreaded tires, if a tire does not have an intended outboard sidewall, the tire must be labeled with the tire identification number required by 49 CFR part 574 on one sidewall and with either the tire identification number or a partial tire identification number, containing all characters in the tire identification number except for the date code and, at the discretion of the manufacturer, any optional code, on the other sidewall.
Cooper Tire described the subject noncompliance and contended that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, Cooper Tire submitted the following:
1. While the 327 tires in the subject population contain an incorrectly ordered week and year for the fourth grouping of Tire Identification Number's (TIN), they are in all other respects properly labeled and meet all performance requirements under the FMVSSs. The serial week of manufacture has no bearing on the performance or operation of a tire and does not create a safety concern to either the operator of the vehicle on which the tires are mounted, or the safety of personnel in the tire repair, retread, and recycling industry.
2. Tire registration and traceability will not be interrupted. Cooper Tire's internally controlled online registration system has been modified to be able to accept the incorrectly ordered 1723 date code. Any tires registered with that date code and TIN will be identified properly as having been manufactured in the 23rd week of 2017. This will ensure that Cooper Tire is able to identify these tires in the event they must be recalled. If a recall is necessary, Cooper Tire will explain the date issue in any recall notice.
3. Cooper Tire can also confirm that it will not use the same full TIN in year 2023. Cooper Tire uses the third grouping of numbers within the TIN to identify the SKU or make of the tire, as is permitted at the option of the manufacturer under the regulations.
4. NHTSA has granted a number of previous inconsequentiality petitions relating to mislabeled TINs, provided that the mislabeling does not affect the manufacturer's ability to identify the tires. “The purpose of the date code is to identify a tire so that, if necessary, the appropriate action can be taken in the interest of public safety such as a safety recall notice.”
5. Cooper Tire has taken steps over the last two years to add additional checks in its processes to prevent TIN errors. For example, Cooper Tire has implemented software that allows for a specific plant to choose only its plant code from a drop-down menu when engraving that portion of the TIN. Date codes are updated on a weekly basis and often produced in advance of the serial week. The serial week and year are manually entered into the system and then engraved on a plug for use. Cooper Tire is working to prevent future issues and evaluating the possibility of additional technology which will restrict the selection of date codes to a contained period of time. Cooper Tire is also reviewing its inspection processes to ensure that errors of this sort are identified earlier in the process.
Cooper Tire concluded that the subject noncompliance is inconsequential as it relates to motor vehicle safety and that its petition to be exempted from providing notification and a remedy for the noncompliance, as required by 49 U.S.C. 30118-20, should be granted. Lastly, Cooper Tire informed the Agency that there are no warranty adjustments, personal injury claims, or property damage claims related to the subject noncompliance.
An important issue to consider in determining inconsequentiality is the safety risk to individuals who experience the type of event against which the recall would otherwise protect. In general, NHTSA does not consider the absence of complaints or injuries to show that the issue is inconsequential to safety. “Most importantly, the absence of a complaint does not mean there have not been any
Arguments that only a small number of vehicles or items of motor vehicle equipment are affected have also not justified granting an inconsequentiality petition. Similarly, NHTSA has rejected petitions based on the assertion that only a small percentage of vehicles or items of equipment are likely to actually exhibit a noncompliance. The percentage of potential occupants that could be adversely affected by a noncompliance does not determine the question of inconsequentiality. Rather, the issue to consider is the consequence to an occupant who is exposed to the consequence of that noncompliance.
NHTSA has reviewed Cooper Tire's statements on which it bases its belief that the noncompliance is inconsequential to motor vehicle safety. In this case, the subject tires were molded with an incorrectly ordered date code on the outboard sidewall.
NHTSA's decision considered the following arguments:
1. Markings—On NHTSA's website, the guidance for replacing a tire states the following: “As tires age, they are more prone to failure. Some vehicle and tire manufacturers recommend replacing tires that are six to 10 years old regardless of treadwear.”
The subject tires labeled with the incorrect date code “1723” instead of the correct date code “2317” may confuse consumers because it means the tires were made in the 17th week of year 2023. After the 17th week of year 2023, consumers may believe the date code is correct. An incorrect date code may affect a consumer's behavior, if the consumer believes that the tires are new instead of six years old.
In addition, tire dealers may store tires for multiple years before selling them. A customer who purchases tires with this type of labeling error may incorrectly believe the tire is not as old as it is and may not replace the tire, based on the manufacturer's recommendation for replacing tires due to age. For example, Cooper Tire recommends that all tires be replaced if 10 or more years has passed since the date of manufacture.
2. Performance—Cooper Tire stated that the subject tires, in all other respects, are properly labeled and meet all performance requirements. Cooper Tire also stated that the date code has no bearing on the performance or operation of the tires. Cooper Tire further argued that the subject noncompliance does not pose a safety concern to either the operator, the vehicle on which the tires are mounted, or the safety of personnel in the tire repair, retread, and recycling industry. NHTSA does not find the arguments persuasive. The fact that a new tire meets all other minimum performance requirements fails to limit the potential risk from using a tire beyond the manufacturer's recommended maximum service life; thus, this labeling issue has potential performance implications.
3. Other petitions—In its petition, Cooper Tire cited a number of inconsequentiality petitions relating to TINs that the Agency previously granted. The Agency believes the facts of the petitions cited are sufficiently different and do not support granting the subject petition. The decision notice published at 64 FR 29080 (May 28, 1999) concerned a tire with an incorrectly labeled date code (one year past the actual date of production instead of six years as in the subject tires). The consequence of a consumer relying on the incorrect date was determined to be inconsequential under those circumstances.
The decision notice published at 71 FR 4396 (Jan 26, 2006), concerned a missing date code. It is distinguished from the subject case because it does not point to a future production date, and therefore, does not mislead consumers by providing an incorrect date six years into the future. In the decision notice published at 60 FR 57617 (Nov 16, 1995) the date code was correct but misplaced. In the Bridgestone/Firestone case, 66 FR 45076 (August 27, 2001), the date code related to only one year of future production in the mislabeling. In the prior Cooper Tire case, 68 FR 16115 (April 2, 2003), the noncompliance was irrelevant as it referred to the mislabeling of the plant code and not the date code, which is the concern in the subject tires. The other prior Cooper Tire case cited, 63 FR 29059 (May 27, 1998), is also irrelevant, as it relates to mislabeling of the plant code and a missing date code. In that Cooper Tire case, the missing date code did not mislead consumers about the age of the tire.
The Agency considers the Uniroyal Goodrich petition, 59 FR 1994 (December 13, 1994), relevant to the petition being considered because the mislabeling of the date code is similar to the subject Cooper Tire noncompliance. However, the Uniroyal Goodrich petition was granted in 1994. Since then, the Agency's understanding of the negative safety consequences of tire aging has evolved. NHTSA now recommends that tires be replaced, regardless of their service conditions or useful tread life, based on the manufacturer's recommended maximum service life. NHTSA finds that such a mislabeling is not inconsequential to safety when the mislabeling has the potential to allow a tire to remain in service significantly beyond the manufacturer's recommended maximum service life by six years.
4. Other considerations—The Agency recognizes that Cooper Tire has taken measures to allow customers to register their tires with an incorrectly ordered date code. NHTSA agrees that this will help enable Cooper Tire to identify consumers who have purchased and registered the affected tires. However, this does not, in NHTSA's view, negate the safety risk caused by the incorrect date code as tires may not be registered or may change hands subsequent to registration.
5. Claims—While Cooper Tire noted that there are no claims for property damage or crashes reported for the subject tires, this is not persuasive as the noncompliance likely only poses risk in the future.
In consideration of the foregoing, NHTSA finds that Cooper Tire has not met its burden of persuasion of establishing that the subject FMVSS No. 139 noncompliance in the affected tires is inconsequential to motor vehicle safety. The mislabeled date code present in this case presents an obvious risk that the tires may be used or perhaps sold well after they have aged to the point where they cannot be safely used. Accordingly, Cooper Tire's petition is hereby denied. Cooper Tire is obligated to provide notification of, and a free remedy for, the noncompliance under 49 U.S.C. 30118 through 30120.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Harbor Freight Tools (HFT) has determined that certain Kenway 12V Magnetic Towing Light Kits and Submersible LED Trailer Lights manufactured by Jinhua Eagle King Tools Co., Ltd. do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108,
Send comments on or before September 27, 2021.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and submitted by any of the following methods:
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•
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• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Leroy Angeles, General Engineer, NHTSA, Office of Vehicle Safety Compliance, (202) 366-5304.
HFT has determined that certain Kenway 12V Magnetic LED Towing Light Kits and Submersible Trailer Lights manufactured by Jinhua Eagle King Tools Co., Ltd., do not fully comply with the requirements of FMVSS No. 108,
This notice of receipt of HFT's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any Agency decision or other exercise of judgment concerning the merits of the petition.
Jinhua Eagle King Tools Co., Ltd manufactured the Kenway 12V Magnetic LED Towing Light Kits between November 13, 2019 and December 22, 2019 and the Kenway 12V Submersible Trailer Lights between July 1, 2019 and July 9, 2019. Approximately 3,832 units, in total, are potentially involved.
HFT explains that the noncompliance is that the subject trailer lighting kits are equipped with turn signal, stop lamp, and tail lamps that exceeds the maximum and/or minimum photometric intensity output requirements, as required by FMVSS No. 108.
Paragraphs S7.1.2, S7.1.2.13, S7.1.2.13.1, S7.2, S7.2.13, S7.3, S7.3.13, and S7.3.13.1 of FMVSS No. 108 include the requirements relevant to this petition. Each rear turn signal lamp must be designed to conform to the photometry requirements of Table VII, when tested according to the procedure of paragraph S14.2.1, for the number of lamp compartments or individual lamps, the type of vehicle it is installed on, and the lamp color as specified by S7.1.2.2. Each tail lamp must be designed to conform to the photometry requirements of Table VIII, when tested according to the procedure of S14.2.1. Each stop lamp must be designed to conform to the photometry requirements of Table IX, when tested according to the procedure of paragraph S14.2.1, for the number of lamp compartments or individual lamps and the type of vehicle it is installed on. Table VII specifies the various minimum and maximum photometric intensity requirements for rear turn signal lamps at specified test points. Table VIII specifies the various
The following views and arguments presented in this section, “V. Summary of HFT's Petition,” are the views and arguments provided by HFT. They have not been evaluated by the Agency and do not reflect the views of the Agency. HFT describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, HFT submitted the following reasoning:
1. HFT contends that the subject trailer light kits deviate only by small margins at certain points and not by a degree that is sufficient enough to be noticeable to other road users or create an increased safety risk.
2. HFT explains that the trailer light kits are combination lamps with turn signal, stop lamp and tail lamp functions and that use light emitting diodes (LEDs) as their light source. HFT explains that it engaged Calcoast to conduct comprehensive compliance monitoring of its trailer light products. In certain individual units, portions of the LEDs used in specific production batches have candela values that were either marginally below and/or were slightly above the luminous intensity output provided for in FMVSS No. 108. HFT states that the deviation from the photometry requirements is slight and all but one case falls within 25% of the required output. Thus, HFT claims, the actual performance of HFT's lamps compared to compliant lamps would not be perceptible to the human eye and therefore would not create an enhanced risk to safety. A description of each of the products and associated test results from Calcost are set out below.
i. HFT's submersible trailer light kit consists of a pair of replacement trailer lamps to be used on trailers less than 80 inches in overall width. The LED lamps used in the kit, function as a combination lamp with three lighted sections.
ii. In this case, a total of six tests were conducted on samples from the same production batch produced in calendar week 27. Four of the samples meet all of the FMVSS No. 108 requirements to which they were tested. Two individual test samples fell below the required candela values for turn signals and stop lamps only in Zone 3.
iii. The minimum candela value for Zone 3 for a lamp with three lighted sections is 520 cd. For these two test samples, one sample measured 466.33 cd in Zone 3 and the other sample measured 497.39 cd in Zone 3—a deviation of 4.5% and 10.4%, respectively. In each case, all of the individual test points that make up Zone 3 were at least 60% of the required candela value and in many cases, were more than 90% of the value for the individual test point.
iv. Overall, HFT says that in each case, although Zone 3 fell below the minimum candela value, it nevertheless fulfilled 89.6%-95.6% of the requirement for the zone. In other words, the zone itself was only 10.4% and 4.4% lower than the minimum required candela value. In addition, none of the individual test points fell below 60% of the specified candela value for the test point. Because all of the test points within the zone are compliant, this accounts for the minimal effects on the photometric output of the zone overall.
v. Further, HFT claims that the lamps met the photometric requirements for all other testing zones and met all other requirements of FMVSS No. 108 to which they were tested.
i. The second product at issue is a 12V magnetic LED trailer light kit each trailer light kit consists of a pair of lamps that are intended to be magnetically attached to the rear of a trailer and that are wired to the towing vehicle's tail lamps. Each lamp is a combination lamp that functions as a turn signal, stop lamp and tail lamp with three lighted sections.
ii. A total of 13 sets of lamps were tested for this product and the Calcoast test results indicate that individual units within two separate production batches (calendar week 46 and calendar week 52) had individual test units that did not meet the photometry requirements for stop lamps, turn signals and tail lamps.
iii. For this product, the noncompliance occurred at certain individual test points, not at the zone level. HFT states that the lamps met the photometric requirements at all other test points and met all other requirements of FMVSS No. 108 to which they were tested.
iv. For the magnetic trailer light kit produced in calendar week 46, two samples measured slightly higher candela values for a single test point when evaluated under the photometric intensity values for turn signals and stop lamps. Where the maximum candela value is 420 cd, in one sample a single test point (1.0U/0.7R) measured 579.81 cd after one minute (an exceedance of 27.6%)5 and in the other sample a single test point (0.7D/0.3L) measured 426.87 cd after one minute (an exceedance of 1.7%). However, HFT claims, the overall photometric requirements for all of the test zones were met.
v. In addition, there were slight exceedances of the tail lamp photometry provisions. In one sample, a single test point slightly exceeded the tail lamp maximum output of 25 candelas, where one sample measured 25.7 cd at the H-V point and in another sample a single test point (at 1.0U/0.9R) measured 31.87 cd. This is a range of 2.7%-21.5% above the maximum candela value. All of the overall photometric requirements for each of the zones were met.
vi. Separately, a batch of magnetic trailer light kits produced in week 52 was evaluated. In that case, one exemplar unit had a single test point (0.5D/1.3L) that measured 440 cd after one minute, an exceedance of 4.6% and above the 420 cd maximum value for any test point. Again, all of the overall photometric requirements for each of the zones were met.
vii. Further, HFT states, for the magnetic trailer light kits there is no increased risk of glare to oncoming motorists because the photometric exceedances are minimal and in all cases, below the threshold metric of 25% so that the differences are not perceptible to other drivers.
3. HFT says that historically, NHTSA has granted inconsequentiality petitions when the noncompliance is imperceptible or nearly imperceptible to vehicle occupants or surrounding traffic. HFT states that when the photometric intensity level is within 25% above or below the boundary limit, the difference in the light being emitted is typically not perceptible to other drivers. This objective metric has been applied to various types of lighting sources, including turn signal lighting.
4. HFT states that an alternative basis on which to grant the petition is the performance exceedances of each of the other surrounding zones. Zones 1, 2, 4 and 5 all exceeded the minimum candela value for their respective zone by wide margins (
5. Separately, HFT also states that NHTSA has recognized the inherent challenges to manufacture all lamps so that each and every test point within the lamp meets the minimum criteria. HFT claims that is the case here. When HFT commissioned Calcoast to review and confirm the performance of these lighting products, it tested a total of 24 sets of lamps produced over a seven month/year period. Of that universe, there were just two samples of submersible trailer light kits that had slightly reduced photometric values and three samples of the magnetic trailer light kit that experienced minimal exceedances. HFT claims that this indicates that the LED lamps were in fact designed to comply with FMVSS No. 108 and that the results of the monitoring testing indicate an isolated number of random failures, not a systemic lapse in production processes. NHTSA has stated that it will not consider a lamp to be noncompliant if its failure to meet a test point is random and occasional.
6. Finally, HFT has reviewed its systems and has not received any reports or complaints about the levels of brightness for these trailer lighting kits. The lack of reports or indications that the subject trailer lights are either too bright or too dim supports the conclusion that the condition is undetectable to road users such as drivers following a vehicle equipped with either of the lighting products. HFT is providing copies of the relevant Calcoast test reports with this petition at Attachment 2 for the submersible trailer light kits and at Attachments 3 and 4 for the magnetic trailer light kits.
HFT concludes that the subject noncompliance is inconsequential as it relates to motor vehicle safety and 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, should be granted.
HFT's complete petition and all supporting documents are available by logging onto the FDMS website at
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject equipment that HFT no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant equipment under their control after HFT notified them that the subject noncompliance existed.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the American Honda Motor Co., Inc.'s (Honda) petition for exemption from the Federal Motor Vehicle Theft Prevention Standard (theft prevention standard) for its Acura RDX vehicle line beginning in model year (MY) 2022. The petition is granted because the agency has determined that the antitheft device to be placed on the line as standard equipment is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard.
The exemption granted by this notice is effective beginning with the 2022 model year.
Carlita Ballard, Office of International Policy, Fuel Economy, and Consumer Programs, NHTSA, West Building, W43-439, NRM-310, 1200 New Jersey Avenue SE, Washington, DC 20590. Ms. Ballard's phone number is (202) 366-5222. Her fax number is (202) 493-2990.
Under 49 U.S.C. chapter 331, the Secretary of Transportation (and the National Highway Traffic Safety Administration (NHTSA) by delegation) is required to promulgate a theft prevention standard to provide for the identification of certain motor vehicles and their major replacement parts to impede motor vehicle theft. NHTSA promulgated regulations at 49 CFR part 541 (theft prevention standard) to require parts-
49 CFR 543.5 provides general submission requirements for petitions and states that each manufacturer may petition NHTSA for an exemption of one vehicle line per model year. Among other requirements, manufacturers must identify whether the exemption is sought under section 543.6 or section 543.7. Under section 543.6, a manufacturer may request an exemption by providing specific information about the antitheft device, its capabilities, and the reasons the petitioner believes the device to be as effective at reducing and deterring theft as compliance with the parts-marking requirements. Section 543.7 permits a manufacturer to request an exemption under a more streamlined process if the vehicle line is equipped with an antitheft device (an “immobilizer”) as standard equipment that complies with one of the standards specified in that section.
(1) The performance criteria (subsections 8 through 21) of C.R.C, c. 1038.114, Theft Protection and Rollaway Prevention (in effect March 30, 2011), as excerpted in appendix A of [part 543];
(2) National Standard of Canada CAN/ULC-S338-98, Automobile Theft Deterrent Equipment and Systems: Electronic Immobilization (May 1998);
(3) United Nations Economic Commission for Europe (UN/ECE) Regulation No. 97 (ECE R97), Uniform Provisions Concerning Approval of Vehicle Alarm System (VAS) and Motor Vehicles with Regard to Their Alarm System (AS) in effect August 8, 2007; or
(4) UN/ECE Regulation No. 116 (ECE R116), Uniform Technical Prescriptions Concerning the Protection of Motor Vehicles Against Unauthorized Use in effect on February 10, 2009.
Section 543.8 establishes requirements for processing petitions for exemption from the theft prevention standard. As stated in section 543.8(a), NHTSA processes any complete exemption petition. If NHTSA receives an incomplete petition, NHTSA will notify the petitioner of the deficiencies. Once NHTSA receives a complete petition the agency will process it and, in accordance with section 543.8(b), will grant the petition if it determines that, based upon substantial evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of part 541.
Section 543.8(c) requires NHTSA to issue its decision either to grant or to deny an exemption petition not later than 120 days after the date on which a complete petition is filed. If NHTSA does not make a decision within the 120-day period, the petition shall be deemed to be approved and the manufacturer shall be exempt from the standard for the line covered by the petition for the subsequent model year.
Sections 543.8(f) and (g) apply to the manner in which NHTSA's decisions on petitions are to be made known. Under section 543.8(f), if the petition is sought under section 543.6, NHTSA publishes a notice of its decision to grant or deny the exemption petition in the
This grant of petition for exemption considers American Honda Motor Co., Inc.'s (Honda) petition for its Acura RDX vehicle line beginning in MY 2022.
Pursuant to 49 CFR part 543,
More specifically, section 543.6(a)(1) requires petitions to include a statement that an antitheft device will be installed as standard equipment on all vehicles in the line for which the exemption is sought. Under section 543.6(a)(2), each petition must list each component in the antitheft system, and include a diagram showing the location of each of those components within the vehicle. As required by section 543.6(a)(3), each petition must include an explanation of the means and process by which the device is activated and functions, including any aspect of the device designed to: (1) Facilitate or encourage its activation by motorists; (2) attract attention to the efforts of an unauthorized person to enter or move a vehicle by means other than a key; (3) prevent defeating or circumventing the device by an unauthorized person attempting to enter a vehicle by means other than a key; (4) prevent the operation of a vehicle which an unauthorized person has entered using means other than a key; and (5) ensure the reliability and durability of the device.
In addition to providing information about the antitheft device and its functionality, petitioners must also submit the reasons for their belief that the antitheft device will be effective in reducing and deterring motor vehicle theft, including any theft data and other data that are available to the petitioner and form a basis for that belief,
The following sections describe Honda's petition information provided pursuant to 49 CFR part 543,
In a petition dated January 12, 2021, as supplemented with additional information submitted on June 22, 2021,
In its petition, Honda provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for the Acura RDX vehicle line. Honda stated that its MY 2022 Acura RDX vehicle line will be installed with an engine immobilizer device as standard equipment, as required by 543.6(a)(1). Honda stated that it will offer a “smart entry remote” (keyless key) system on its vehicle line. Honda also stated that the Acura RDX vehicle line will offer two types of remotes, one with remote engine start and one without remote start. Key components of the “smart entry remote” system will include a passive immobilizer, “smart entry” remote, powertrain control module (PCM), and body control module (BCM). Honda further stated that its vehicle line will be installed with a vehicle security alarm system as standard equipment which will activate a visible and audible alarm whenever unauthorized access is attempted.
Pursuant to Section 543.6(a)(3), Honda explained that its “smart entry and start” system is part of the normal operation of the ignition key and activates automatically when the ignition switch is in the “OFF” position. Honda further explained that if a smart entry remote without a matching code is within operating range and the engine start/stop button is pressed, the PCM will prevent fueling of the engine and the engine will not start. Honda also stated that the immobilizer system is deactivated when a valid smart entry remote and matching codes are verified, allowing the engine to continue normal operations. Honda further stated that the security indicator flashes continuously when the immobilizer is activated, and turns off when it is deactivated.
Honda stated that the audible and visible vehicle security alarm system installed on its Acura RDX vehicles will monitor any attempts of unauthorized entry and attract attention to an unauthorized person attempting to enter its vehicles without the use of a “smart entry” remote or its built-in mechanical door key. Specifically, Honda stated that whenever an attempt is made to open one of its vehicle doors, hood or trunk without using the “smart entry” remote or turning a key in the key cylinder to disarm the vehicle, the vehicle's horn will sound and its lights will flash. Honda stated that its vehicle security system is activated when all of the doors are locked and the hood and trunk are closed and locked. Honda further stated that its vehicle security system is deactivated by using the key fob buttons to unlock the vehicle doors or having the “smart entry” remote within operating range when the operator grabs either of the vehicle's front door handles.
Honda also stated that in addition to the standard security system on all 2022 MY Acura RDX models, additional security features include counterfeit resistant vehicle identification number (VIN) plates, secondary VINs, a hood release located inside the vehicle, and its smart entry remote will utilize rolling codes for the lock and unlock functions of its vehicles.
As required in section 543.6(a)(3)(v), Honda provided information on the reliability and durability of its proposed device. To ensure reliability and durability of the device, Honda provided a list of requirements for the characteristics and durability testing along with its results. Honda stated that its device does not require the presence of a “smart entry” remote battery to function nor does it have any moving parts (
Honda believes that installation of the antitheft immobilizer device as standard equipment reduces the vehicle theft rate by making conventional methods of theft obsolete,
Pursuant to 49 U.S.C. 33106 and 49 CFR 543.8(b), the agency grants a petition for exemption from the parts-marking requirements of part 541, either in whole or in part, if it determines that, based upon substantial evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of part 541. The agency finds that Honda has provided adequate reasons for its belief that the antitheft device for its vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard. This conclusion is based on the information Honda provided about its antitheft device. NHTSA believes, based on Honda's supporting evidence, the antitheft device described for its vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard.
The agency concludes that Honda's antitheft device will provide the five types of performance features listed in section 543.6(a)(3): Promoting activation; attracting attention to the efforts of unauthorized persons to enter or operate a vehicle by means other than a key; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
The agency notes that 49 CFR part 541, Appendix A-1, identifies those lines that are exempted from the theft prevention standard for a given model year. 49 CFR 543.8(f) contains publication requirements incident to the disposition of all part 543 petitions. Advanced listing, including the release of future product nameplates, the beginning model year for which the petition is granted and a general description of the antitheft device is necessary in order to notify law enforcement agencies of new vehicle lines exempted from the parts-marking requirements of the theft prevention standard.
If Honda decides not to use the exemption for its requested vehicle line, the manufacturer must formally notify the agency. If such a decision is made, the line must be fully marked as required by 49 CFR 541.5 and 541.6
NHTSA notes that if Honda wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Section 543.8(d) states that a part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the antitheft device on which the line's exemption is based. Further, section 543.10(c)(2) provides for the submission of petitions “to modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in the exemption.”
The agency wishes to minimize the administrative burden that section 543.10(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be de minimis. Therefore, NHTSA suggests that if Honda contemplates making any changes, the effects of which might be characterized as de minimis, it should consult the agency before preparing and submitting a petition to modify.
For the foregoing reasons, the agency hereby grants in full Honda's petition for exemption for the Acura RDX vehicle line from the parts-marking requirements of 49 CFR part 541, beginning with its MY 2022 vehicles.
Issued under authority delegated in 49 CFR 1.95 and 501.8.
Pipeline and Hazardous Materials Safety Administration (PHMSA); DOT.
Notice.
PHMSA is publishing this notice to solicit public comments on a request for special permit received from the Sabal Trail Transmission, LLC (STT). The special permit request is seeking relief from compliance with certain requirements in the federal pipeline safety regulations. At the conclusion of the 30-day comment period, PHMSA will review the comments received from this notice as part of its evaluation to grant or deny the special permit request.
Submit any comments regarding this special permit request by September 27, 2021.
Comments should reference the docket number for this special permit request and may be submitted in the following ways:
•
•
•
•
PHMSA received a special permit request from STT, a joint venture between Spectra Energy Partners, LP (Enbridge), NextEra Energy, Inc., and Duke Energy, which is operated by Enbridge Inc., seeking a waiver from the requirements of 49 CFR 192.611: Change in class location: Confirmation or revision of maximum allowable operating pressure. This special permit is being requested in lieu of pipe replacement or pressure reduction for one (1) special permit segment totaling 53,486 feet (approximately 10.130 miles) on the STT Line 1 Pipeline. The proposed special permit segment is located in Sumter County, Florida. The STT Line 1 Pipeline class location in the special permit segment has changed from a Class 1 to a Class 3 location. The STT Line 1 Pipeline special permit segment is a 36-inch diameter pipeline with an existing maximum allowable operating pressure of 1,456 pounds per square inch gauge. The installation of the special permit segment occurred in 2017.
The special permit request, proposed special permit with conditions, and Draft Environmental Assessment (DEA) for the above listed STT pipeline segments are available for review and public comments in Docket No. PHMSA-2021-0052. PHMSA invites interested persons to review and submit comments on the special permit request and DEA in the docket. Please include any comments on potential safety and
Before issuing a decision on the special permit request, PHMSA will evaluate all comments received on or before the comments closing date. Comments received after the closing date will be evaluated, if it is possible to do so without incurring additional expense or delay. PHMSA will consider each relevant comment it receives in making its decision to grant or deny this special permit request.
Issued in Washington, DC, under authority delegated in 49 CFR 1.97.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See Supplementary Information section for effective date(s).
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
A. On August 20, 2021, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See Supplementary Information section for effective date(s).
OFAC: Bradley Smith, Acting Director, tel.: 202-622-2480; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On March 2, 2021, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authorities listed below.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; Assistant Director for Licensing, tel.: 202-622-2480; or the Assistant Director for Regulatory Affairs, tel. 202-622-4855.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On August 19, 2021, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
1. JIMENEZ GONZALEZ, Abelardo (a.k.a. JIMENEZ GONZALEZ, Roberto Abelardo); Infanta 1506 Santa Rosa Y Estevez, Cerro, Cuba; DOB 22 Feb 1952; nationality Cuba; Gender Male; National ID No. 52022201646 (Cuba) (individual) [GLOMAG].
Designated pursuant to section 1(a)(iii)(B) of Executive Order 13818 of December 20, 2017, “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption” (E.O. 13818) for having acted or purported to act for or on behalf of, directly or indirectly, the MINISTRY OF INTERIOR*, a person whose property and interests in property are blocked pursuant to E.O. 13818.
2. GONZALEZ BRITO, Andres Laureano (Latin: GONZÁLEZ BRITO, Andrés Laureano); Havana, Cuba; DOB 04 Jul 1954; POB Barajagua, Las Villas, Cuba; alt. POB Barajagua, Cienfuegos, Cuba; nationality Cuba; Gender Male; Chief, Central Army (individual) [GLOMAG].
Designated pursuant to section 1(a)(ii)(C)(1) of E.O. 13818 for being a foreign person who is or has been a leader or official of an entity, including any government entity, that has engaged in, or whose members have engaged in, directly or indirectly, serious human rights abuse relating to the leader's or official's tenure.
3. LEGRA SOTOLONGO, Roberto (Latin: LEGRÁ SOTOLONGO, Roberto); Havana, Cuba; DOB 1955; POB Baracoa, Cuba; nationality Cuba; Gender Male; Deputy Chief of the General Staff Revolutionary Armed Forces and Chief of the Directorate of Operations of the FAR (individual) [GLOMAG].
Designated pursuant to section 1(a)(ii)(C)(1) of E.O. 13818 for being a foreign person who is or has been a leader or official of an entity, including any government entity, that has engaged in, or whose members have engaged in, directly or indirectly, serious human rights abuse relating to the leader's or official's tenure.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning a notice regarding repayment of a buyout prior to re-employment with the Federal Government.
Written comments should be received on or before October 25, 2021 to be assured of consideration.
Direct all written comments to Kinna Brewington, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW, Washington, DC 20224. Requests for additional information or copies of the regulations should be directed to R. Joseph Durbala, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW, Washington DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
• 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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the extension of the information collection; they will also become a matter of public record.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning the burden related to Form 8938,
Written comments should be received on or before October 25, 2021 to be assured of consideration.
Direct all written comments to Kinna Brewington, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224. Requests for additional information or copies of the regulations should be directed to R. Joseph Durbala, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW, Washington DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained if their contents may become
• 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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the extension of the information collection; they will also become a matter of public record.
United States Mint, Department of the Treasury.
Notice.
The United States Mint is announcing new pricing for a United States Mint numismatic product in accordance with the table below:
Josephine Campbell, Marketing Specialist, Sales and Marketing; United States Mint; 801 9th Street NW, Washington, DC 20220; or call 202-354-7750.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of supplemental notice of proposed rulemaking and request for comment.
The U.S. Department of Energy (“DOE” or “the Department”) is publishing a supplemental notice of proposed rulemaking (“SNOPR”) to establish energy conservation standards for manufactured housing pursuant to the Energy Independence and Security Act of 2007. This document presents an updated proposal based on the 2021 version of the International Energy Conservation Code (“IECC”) and comments received during interagency consultation with the U.S. Department of Housing and Urban Development, as well as from stakeholders. This proposal presents two potential approaches—one would provide a set of “tiered” standards based on the manufacturer's retail list price for the manufactured home that would apply the 2021 IECC-based standards to manufactured homes, except that manufactured homes with a manufacturer's retail list price of $55,000 and below would be subject to less stringent building thermal envelope requirements based on manufacturer's retail list price. The alternative approach would apply standards based on the 2021 IECC to all manufactured homes, with no exceptions for building thermal envelope requirements based on manufacturer's retail list price.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
Although DOE has routinely accepted public comment submissions through a variety of mechanisms, including postal mail and hand delivery/courier, the Department has found it necessary to make temporary modifications to the comment submission process in light of the ongoing Covid-19 pandemic. DOE is currently suspending receipt of public comments via postal mail and hand delivery/courier. If a commenter finds that this change poses an undue hardship, please contact Appliance Standards Program staff at (202) 586-1445 to discuss the need for alternative arrangements. Once the Covid-19 pandemic health emergency is resolved, DOE anticipates resuming all of its regular options for public comment submission, including postal mail and hand delivery/courier.
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section VI of this document.
The docket web page can be found at
Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program (EE-2J), 1000 Independence Avenue SW, Washington, DC 20585; 202-287-1692;
Mr. Matthew Ring, U.S. Department of Energy, Office of the General Counsel (GC-33), 1000 Independence Avenue SW, Washington, DC 20585; 202-586-2555;
This SNOPR proposes to incorporate by reference into 10 CFR part 460 the following industry standards:
ANSI/ACCA 2 Manual J-2016 (“ACCA Manual J”), “Manual J—Residential Load Calculation (8th edition)”, Copyright 2016.
ANSI/ACCA 3 Manual S-2014 (“ACCA Manual S”), “Manual S—Residential Equipment Selection (2nd edition)”, Copyright 2014.
Copies of Manual J and Manual S may be purchased from Air Conditioning Contractors of America Inc., (ACCA), 2800 S Shirlington Road, Suite 300, Arlington, VA 22206, Telephone: 703-575-4477.
PNL-8006 (“Overall
A copy of Overall
See section V.M of this document for further discussion of these standards.
The Energy Independence and Security Act of 2007 (“EISA,” Pub. L. 110-140) directs the U.S. Department of Energy (“DOE” or in context, “the Department”) to establish energy conservation standards for manufactured housing.
EISA directs DOE to base the standards on the most recent version of the International Energy Conservation Code (“IECC”) and any supplements to that document, except in cases where DOE finds that the IECC is not cost-effective or where a more stringent standard would be more cost-effective, based on the impact of the IECC on the purchase price of manufactured housing and on total lifecycle construction and operating costs. (See 42 U.S.C. 17071(b)(1)) Standards shall be established after notice and an opportunity to comment by manufacturers of manufactured housing and other interested parties, and consultation with the Secretary of Housing and Urban Development (“HUD”), who may seek further counsel from the Manufactured Housing Consensus Committee. (42 U.S.C. 17071(a)(2)) The energy conservation standards established by DOE may (1) take into consideration the design and factory construction techniques of manufactured homes, (2) be based on the climate zones established by HUD rather than the climate zones of the IECC, and (3) provide for alternative practices that result in net estimated energy consumption equal to or less than the specified standards. (42 U.S.C. 17071(b)(2))
On June 17, 2016, DOE published in the
During DOE's interagency consultation with HUD, HUD expressed concerns about the adverse impacts on manufactured housing affordability that would likely follow if DOE were to adopt the approach laid out in its June 2016 NOPR. A variety of commenters also expressed concerns over the potentially negative impacts on the affordability of manufactured housing flowing from increased consumer costs resulting from DOE's approach in the June 2016 NOPR. DOE published a Notice of Data Availability (NODA) on August 3, 2018. 83 FR 38073 (August 2018 NODA). In the August 2018 NODA, DOE stated it was examining a number of possible alternatives to those proposed in the June 2016 NOPR on which it sought further input from the public, including the first-time costs related to the purchase of these homes.
After evaluating the comments received in response to the June 2016 NOPR and the August 2018 NODA, in this SNOPR, DOE proposes energy conservation standards for manufactured homes based on the 2021 IECC. These standards would be based on the current HUD zones.
In this SNOPR, DOE's primary proposal is the “tiered” approach, based on the 2021 IECC, wherein a subset of
As proposed in this document, subpart A presents generally the scope of the rule and provides definitions of key terms. Proposed subpart B would establish new requirements for manufactured homes that relate to climate zones, the building thermal envelope, air sealing, and installation of insulation. Subpart C proposes new requirements related to duct sealing, heating, ventilation, and air conditioning (“HVAC”); service hot water systems; mechanical ventilation fan efficacy; and heating and cooling equipment sizing.
Under either approach, subparts A and C would remain the same; however, the stringency of the requirements under proposed subpart B would depend on the manufacturer's retail list price of the manufactured home for the tiered approach. Under the tiered proposal, two sets of standards would be established in proposed subpart B (
As mentioned previously, in the tiered proposal, DOE proposes to base the applicability of the two tiers on the manufacturer's retail list price. This is more appropriate than basing the tiers on the purchase price as the purchase price may not be known until after a manufactured home leaves the manufacturer, and manufacturers may have limited control of the final purchase price of manufactured homes sold by third-party retailers. DOE also notes that the manufacturer's retail list price is specified in EISA for the purpose of determining penalties for non-compliance. (42 U.S.C. 17071(d)) However, DOE relies on purchase price in its analysis for assessing incremental price increases for manufactured homes as an appropriate approximation for manufacturer's retail list price because available data for manufactured homes are only in terms of purchase price.
Under both approaches, DOE proposes to adopt a compliance date such that the standards would apply to manufactured homes starting one year after the publication date of the final rule in the
As explained in greater detail in section IV.A of this document and in chapter 9 of the SNOPR technical support document (“TSD”), DOE tentatively estimates that benefits to manufactured home homeowners—in terms of lifecycle cost (“LCC”) savings and energy cost savings of the requirements as proposed in both proposals—could outweigh the potential increase in purchase price for manufactured homes.
Table I.1 and Table I.2 present the average purchase price increase of a manufactured home as a result of the energy conservation standards for the tiered standards,
The analysis results for the annual energy cost savings and simple payback periods are projected to be the same for both the Tier 2 standard and the untiered standard because they have the same energy efficiency measures and inputs (
Table I.4 presents the estimated national average LCC savings and energy savings for the compliance year that a manufactured homeowner would experience under the proposals compared to a manufactured home constructed in accordance with the minimum requirements of existing HUD Manufactured Home Construction and Safety Standards (“HUD Code”) at 24 CFR part 3280
As discussed in more detail in section IV.B of this document and chapter 12 of the SNOPR TSD, the industry net present value (“INPV”) is the sum of the discounted cash flows to the industry from the reference year (2021) through the end of the analysis period (2052). Using a real discount rate of 9.2 percent, DOE tentatively estimates the INPV under a no-regulatory-action alternative, which would maintain energy conservation requirements at the levels established in the existing HUD Code, to be $16.2 billion. Under the tiered approach, the change in INPV would range from −1.7 percent to 2.0 percent. Industry would incur total conversion costs of $1.8 million. Under the untiered standard, the change in INPV would range from −2.1 percent to 2.4 percent. Industry would incur total conversion costs of $1.8 million.
As described in more detail in section IV.C of this document and chapter 11 of the SNOPR TSD, DOE's national impact analysis (“NIA”) projects a net benefit to the nation as a whole under both the tiered and untiered proposals, in terms of national energy savings (“NES”) and the net present value (“NPV”) of expected total manufactured homeowner costs and savings compared with the baseline. In this case, the baseline is manufactured homes built to the minimum standards established in the HUD Code. As part of its NIA, DOE has projected the energy savings, operating cost savings, incremental costs, and NPV of manufactured homeowner benefits for manufactured homes sold in a 30-year period from the compliance year of 2023 through 2052. The NIA builds off the LCC analysis by aggregating results for all affected shipments over a 30-year period. All NES and percentage energy savings calculations are relative to a no-regulatory-action alternative, which would maintain energy conservation requirements at the levels established in the existing HUD Code.
Table I.5 illustrates the cumulative NES over the 30-year analysis period under both the tiered and untiered standards on a full-fuel-cycle (“FFC”) energy savings basis. FFC energy savings apply a factor to account for losses associated with generation, transmission, and distribution of electricity, and the energy consumed in extracting, processing, and transporting or distributing primary fuels. NES differ among the different climate zones because of varying energy conservation requirements and varying shipment projections in each climate zone. All NES and percentage energy savings calculations are relative to a no-regulatory-action alternative, which as discussed would maintain energy conservation requirements at the levels established in the existing HUD Code. DOE tentatively estimates that, under the tiered standards, 2.32 quads of FFC energy would be saved relative to the baseline over the 30-year analysis period. DOE tentatively estimates that, under the proposed untiered standard, 2.58 quads of FFC energy would be saved relative to the baseline over the 30-year analysis period.
Table I.6 and Table I.7 illustrate the NPV of consumer benefits over the 30-year analysis period under both proposals for a discount rate of 7 percent and 3 percent, respectively. The NPV of consumer benefits differ among the three climate zones because of differing initial costs and corresponding operating cost savings, as well as differing shipment projections in each climate zone.
As discussed in section IV.C of this document and in the NIA included in chapter 11 of the SNOPR TSD, DOE's analyses indicate that both the tiered and untiered proposals would reduce overall demand for energy in manufactured homes. Both proposals also would produce environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases associated with electricity production.
Emissions avoided under the proposed rule as a result of the energy savings that would be achieved within manufactured homes. As discussed previously, DOE tentatively estimates that, under the proposed tiered standard, 2.32 quads of FFC energy would be saved over the 30-year analysis period relative to the baseline. DOE tentatively estimates that, under the untiered standards, 2.58 quads of FFC energy would be saved over the 30-year analysis period relative to the baseline. DOE estimates reductions in emissions of six pollutants associated with energy savings: Carbon dioxide (CO
Table I.8 lists the emissions reductions under the proposed rule for both single-section and multi-section manufactured homes.
DOE calculates the value of the CO
Table I.9 provides the NPV of monetized emissions benefits from reduction in emissions of GHGs for which social cost is considered, and NO
Table I.10 summarizes the economic benefits and costs expected to result from the proposed standards for manufactured homes.
The benefits and costs of the proposed standards for manufactured housing sold in 2023-2052 can also be expressed in terms of annualized values. The monetary values for the total annualized net benefits are (1) the savings in consumer operating costs, minus (2) the increases in product installed costs, plus (3) the value of the benefits of GHG and NO
The national operating cost savings are domestic private U.S. consumer monetary savings that occur as a result of purchasing the covered housing and are measured for the lifetime of manufactured housing shipped in 2023-2052. The benefits associated with reduced GHG emissions achieved as a result of the proposed standards are also calculated based on the lifetime of manufactured housing shipped in 2023-2052.
Table I.11 and Table I.12 present the total estimated benefits and costs to manufactured housing homeowners associated with the proposed tiered standard and the untiered standards, expressed in terms of annualized values.
DOE's analysis of the national impacts of the proposed standards is described in sections IV.C, IV.D, and IV.E of this document.
DOE has tentatively determined that the energy conservation standards under either approach in this SNOPR (
This section addresses the legal and factual background to date regarding DOE's efforts to establish energy conservation standards for manufactured housing. By statute, DOE is obligated to set standards for manufactured housing in consultation with HUD and to consider certain specific factors when establishing these standards. DOE is also obligated to update these standards within a prescribed period of time.
Section 413 of EISA directs DOE to:
• Establish standards for energy conservation in manufactured housing;
• Provide notice of, and an opportunity for comment on, the proposed standards by manufacturers of manufactured housing and other interested parties;
• Consult with the Secretary of HUD, who may seek further counsel from the Manufactured Housing Consensus Committee (MHCC); and
• Base the energy conservation standards on the most recent version of the IECC and any supplements to that document, except in cases where DOE finds that the IECC is not cost-effective or where a more stringent standard would be more cost-effective, based on the impact of the IECC on the purchase price of manufactured housing and on total lifecycle construction and operating costs.
Section 413 of EISA also provides that DOE may:
• Consider the design and factory construction techniques of manufactured housing;
• Base the climate zones on the climate zones established by HUD
• Provide for alternative practices that, while not meeting the specific standards established by DOE, result in net estimated energy consumption equal to or less than the specific energy conservation standards.
DOE is directed to update its standards not later than one year after any revision to the IECC. (42 U.S.C. 17071(b)(3)) Finally, under EISA, a manufacturer of manufactured housing that violates a provision of Part 460 “is liable to the United States for a civil penalty not exceeding 1 percent of the manufacturer's retail list price of the manufactured housing.” (42 U.S.C. 17071(c))
Section 413 of EISA provides DOE with the authority to regulate energy conservation in manufactured housing, an area of the building construction industry traditionally regulated by HUD. HUD has regulated the manufactured housing industry since 1976, when it first promulgated the HUD Code. (42 U.S.C. 5401
The HUD Code includes requirements related to the energy conservation of
The HUD Code also provides an alternate pathway to compliance that allows manufacturers to construct manufactured homes that meet adjusted
Subpart H of the HUD Code, entitled “Heating, Cooling, and Fuel Burning Systems,” establishes requirements for sealing air supply ducts and for insulating both air supply and return ducts. 24 CFR 3280.715(a).
The statutory authority for DOE's rulemaking effort is different from the statutory authority underlying the HUD Code. EISA directs DOE to establish energy conservation standards for manufactured housing without reference to existing HUD Code requirements that also address energy conservation. However, EISA also requires DOE to consult with HUD. (42 U.S.C. 17071(a)(2)(B)) Such consultations have informed DOE in development of the regulations proposed in this document, and DOE remains cognizant of the HUD Code, as well as HUD's Congressional charge to protect the quality, durability, safety, affordability, and availability of manufactured homes. Compliance with the DOE requirements would not prevent a manufacturer from complying with the requirements set forth in the HUD Code. Section III.F provides a crosswalk of the energy conservation standards that are proposed in this rule with the standards in the HUD Code. Moreover, as discussed further in section III, DOE considered the potential impact on manufactured home purchasers resulting from costs associated with additional energy efficiency measures.
The statutory authority for this rulemaking requires DOE to base its standards on the most recent version of the IECC and any supplements to that document, subject to certain exceptions and considerations. (42 U.S.C. 17071(b)(1)) The IECC is a nationally recognized model code, developed under the auspices of and published by the International Code Council (“ICC”). Many state and local governments have adopted the IECC
The 2021 IECC is divided into two major sections, with provisions for both residential and commercial buildings. The manufactured housing energy conservation standards and test procedure are based on the requirements for residential buildings. The residential building requirements of the 2021 IECC, however, are not specific to manufactured housing.
Chapter 4 of the residential section of the 2021 IECC sets forth specifications for residential energy efficiency, including specifications for building thermal envelope energy conservation, thermostats, duct insulation and sealing, mechanical system piping insulation, heated water circulation system, and mechanical ventilation. To the extent that the HUD Code regulates similar aspects of energy conservation as the 2021 IECC, the 2021 IECC is generally considered more stringent than the corresponding requirements in the HUD Code, given that many areas of the HUD Code have not been updated as frequently as the IECC.
DOE notes that the IECC is designed for building structures that have a permanent foundation. Manufactured housing structures, however, are not built on permanent foundations but are built on a steel chassis to enable them to be moved or towed when needed. As a result, because they present their own set of unique considerations that the IECC was not intended to address, some aspects of the IECC are unable, or highly impractical, to be applied to manufactured housing. Instead, as DOE proposed in its June 2016 NOPR and consistent with the considerations required by EISA, this supplemental proposal utilizes aspects of the IECC that are appropriate for manufactured housing as the basis for the standards proposed herein, thereby accounting for the unique physical characteristics of manufactured housing.
Additionally, the “tiered” proposal provides an approach to mitigate the potential adverse impacts of increased costs on manufactured housing affordability that may arise from increasing the stringency of energy efficiency requirements applied to manufactured homes. In its tiered proposal, by dividing the market into designated manufacturer retail list price-based segments and assigning efficiency levels as appropriate for each segment, DOE suggests a way to address the affordability concerns presented in this housing segment, and relatedly the cost-effectiveness considerations set forth in EISA, while also promoting that the statutory objective of improving manufactured housing energy efficiency.
Manufactured housing accounts for approximately six percent of all homes in the United States.
Establishing improved energy conservation requirements for manufactured homes results in the dual benefit of reducing manufactured home energy use and enabling owners of manufactured homes to experience lower utility expenses over the long-term. Improved energy conservation standards are also expected to provide nationwide benefits of reducing utility energy production levels that would in turn reduce greenhouse gas emissions and other air pollutants.
DOE published an advance notice of proposed rulemaking (“ANOPR”) to initiate the process of developing energy conservation standards for manufactured housing and to solicit information and data from industry and stakeholders.
On June 25, 2013, DOE published a request for information (“RFI”) seeking information on indoor air quality, financing and related incentives, model systems of enforcement, and other studies and research relevant to DOE's effort to establish energy conservation standards for manufactured housing. 78 FR 37995 (“June 2013 RFI”). The June 2016 NOPR provides more details on the comments received on the RFI. 81 FR 39765 (June 17, 2016).
After reviewing the comments received in response to the ANOPR, the June 2013 RFI, and other stakeholder input, DOE ultimately determined that development of proposed manufactured housing energy conservation standards would benefit from a negotiated rulemaking process. On June 13, 2014, DOE published a notice of intent to establish a negotiated rulemaking manufactured housing (“MH”) working group to discuss and, if possible, reach consensus on a proposed rule. 79 FR 33873. On July 16, 2014, the MH working group was established under the Appliance Standards and Rulemaking Federal Advisory Committee (“ASRAC”) in accordance with the Federal Advisory Committee Act and the Negotiated Rulemaking Act. 79 FR 41456; 5 U.S.C. 561-570, App. 2. The MH working group consisted of representatives of interested stakeholders with a directive to consult, as appropriate, with a range of external experts on technical issues in developing a term sheet with recommendations on the proposed rule. The MH working group consisted of 22 members, including one member from ASRAC, and one DOE representative. 79 FR 41456. The MH working group met in person during six sets of public meetings held in 2014 on August 4-5, August 21-22, September 9-10, September 22-23, October 1-2, and October 23-24. 79 FR 48097 (Aug. 15, 2014); 79 FR 59154 (Oct. 1, 2014).
On October 31, 2014, the MH working group reached consensus on energy conservation standards in manufactured housing and assembled its recommendations for DOE into a term sheet that was presented to ASRAC. Public docket EERE-2009-BT-BC-0021-0107 (“Term Sheet”). ASRAC approved the term sheet during an open meeting on December 1, 2014 and sent it to the Secretary of Energy to develop a proposed rule.
On February 11, 2015, DOE published an RFI requesting information that would aid in determining proposed solar heat gain coefficient (“SHGC”) requirements for certain climate zones. 80 FR 7550 (“February 2015 RFI”). Following preparation and submission of the term sheet by the MH working group, DOE also consulted further with HUD regarding DOE's proposed energy conservation standards. In addition to meeting with HUD, DOE prepared two presentations to discuss the proposed rule with MHCC members, which were designed to gather information on development of the proposed standards.
On June 17, 2016, DOE published a NOPR for the manufactured housing energy conservation standards rulemaking. 81 FR 39755. (“June 2016 NOPR”) DOE posted the NOPR analysis as well as the complete NOPR TSD on its website.
DOE also received over 700 substantively similar form letters from individuals. All of the comment submissions are available in the docket for this rulemaking. The comments and DOE's responses are discussed in sections III, IV, and V of this document.
DOE received a number of responses to its June 2016 NOPR. In response to concerns related to potential adverse impacts on price-sensitive, low-income purchasers of manufactured homes from the imposition of energy conservation standards on manufactured housing, DOE sought additional information from the public regarding these impacts by publishing the August 2018 NODA. See 83 FR 38073 (August 3, 2018). That NODA indicated that DOE had re-examined its available data and re-evaluated its approach in developing standards for manufactured housing. The August 2018 NODA also indicated that HUD had made DOE aware of the adverse impacts on manufactured housing affordability that would likely follow if DOE were to adopt the approach laid out in its June 2016 NOPR. See 83 FR 38073, 38075. These discussions with HUD, along with a concern over the initial first-cost impacts that DOE's earlier proposal would have on low-income buyers, led DOE to examine a potential tiered proposal that would require varying levels of energy efficiency performance with specified increases in incremental upfront-costs that would still improve the overall energy efficiency of manufactured homes. See 83 FR 38077.
DOE has not included test procedure or compliance and enforcement provisions in this SNOPR. DOE also has not included provisions related to waivers or exception relief that might be available to manufacturers regarding compliance with any standards that DOE may adopt. DOE does not intend to address test procedures or compliance and enforcement provisions in this rulemaking. DOE notes that HUD has an established design approval, monitoring and enforcement system, defined in 24 CFR part 3282, that is robust and provides compliance and enforcement of the manufactured housing industry standards. Moreover, manufacturers must comply with referenced standards incorporated by HUD in its regulations. While DOE would consider HUD's established compliance and enforcement mechanism appropriate to support any standards HUD incorporates by reference from any final
DOE's authority under 42 U.S.C. 17071 to establish energy conservation standards for manufactured homes specifies that those standards “shall be based on” the most recent version of the IECC. Because the IECC is specific to site-built structures, DOE's supplemental proposal, while based on the 2021 IECC, has required modifications to IECC provisions for application to manufactured homes. In DOE's view, the language Congress used in instructing DOE to set standards for these structures is broad and does not require the imposition of requirements for manufactured homes that are identical to those that IECC provides for site-built structures. The use of the phrase “based on” readily indicates that Congress anticipated that DOE would need to use its discretion in adapting elements of the IECC's provisions for manufactured housing use, including whether those elements would be appropriate in light of the specific circumstances related to the structure. Further, Congress indicated that DOE has discretion to depart from the IECC to the extent it is not cost-effective.
Pursuant to this discretion afforded by Congress, as opposed to complete adoption of the 2021 IECC, DOE is proposing, first, a tiered standard whereby manufactured homes with manufactured retail list prices of $55,000 or less (“Tier 1” manufactured homes) would be subject to different building thermal envelope requirements (subpart B of proposed 10 CFR part 460) than all other manufactured homes (“Tier 2” manufactured homes). Both tiers are based on the 2021 IECC in that both tiers have requirements for the building thermal envelope, duct and air sealing, installation of insulation, HVAC specifications, service hot water systems, mechanical ventilation fan efficacy, and heating and cooling equipment sizing provisions of the 2021 IECC. However, in light of cost-effectiveness concerns, Tier 1 provides tailored improvements in efficiency with regard to building thermal envelope, which are projected to result in an approximately $750 incremental price increase. Tier 2 focuses on the building thermal envelope, duct and air sealing, insulation installation, HVAC specifications, service hot water systems, mechanical ventilation fan efficacy, and heating and cooling equipment sizing provisions, based on the 2021 IECC, and is estimated to result in an average incremental price increase of $3,900-$5,300 for single- and multi-section homes, respectively. As an alternative, DOE is also proposing a single, untiered standard for manufactured homes that is the same as the Tier 2 standard.
In establishing standards for manufactured housing, Congress directed DOE to: (1) Consult with the Secretary of HUD (42 U.S.C. 17071(a)(2)(b)), and (2) base the standards on the most recent version of the IECC, except in cases in which the Secretary finds that the code is not cost-effective, or a more stringent standard would be more cost-effective, based on the impact of the codeon the purchase price of manufactured housing and on total life-cycle construction and operating costs. (42 U.S.C. 17071(b)(1)) Relatedly, the Secretary of HUD is mandated to establish standards for manufactured housing that, in part, “ensure that the public interest in, and need for, affordable manufactured housing is duly considered in all determinations relating to the Federal standards and their enforcement.” (42 U.S.C. 5401(b))
In this consultative role, HUD raised a concern with the potential adverse impacts on manufactured housing affordability that could result from additional energy efficiency standards being established for manufactured homes. More specifically, HUD noted concerns that increases in the purchase prices for manufactured homes resulting from the costs of requiring to meet standards based upon the IECC could result in prospective manufactured homeowners being unable to purchase a manufactured home. With this concern in mind, in the August 2018 NODA, DOE requested comment on a report released in 2014 from the Consumer Financial Protection Bureau (“CFPB”) indicating manufactured housing purchasers face substantial constraints compared to traditional home purchasers.
• Manufactured home ownership varies widely by region, with the majority of manufactured homes located outside of metropolitan areas;
• Manufactured home owners tend to have lower incomes and less net worth than their counterparts who own site-built homes;
• There is an extremely constrained secondary market for manufactured homes, following the collapse of the manufactured home market in the late 1990s through the early 2000s;
• Most manufactured-housing purchasers who finance their homes obtained a loan of between $10,000 and $80,000, with a median loan value of $55,000.
These constraints may make purchasers of manufactured homes more price sensitive to potential changes that would impact the costs to construct (and purchase) a manufactured home. Moreover, the CFPB Report suggests that manufactured home consumers are particularly cost-driven.
The CFPB Report stated that the median annual income of families living in manufactured homes is slightly over $26,000, and the median net worth of these families is $26,000 (a quarter of the median net worth for families in site-built homes).
Additionally, owners of manufactured homes who finance their homes tend to pay higher interest rates than their site-built home counterparts. A key reason for this difference is that the vast majority of manufactured housing stock is titled as chattel (
Therefore, in response to the affordability concerns raised by HUD and commenters, DOE is contemplating whether there are cost-effective approaches that would also mitigate first-cost impacts for purchasers at the lower end of the manufactured home price range. Accordingly, DOE is presenting a tiered proposal that would provide in proposed subpart B tiered standards based on a manufacturer's retail list price. According to 2019 data, the average purchase price (
Accordingly, under the tiered proposal, the stringency of the standards under proposed subpart B applicable to Tier 1 manufactured homes (
DOE estimates the SNOPR would result in a loss in demand and availability of about 53,329 homes (single section and multi-section combined) for the tiered standard and about 71,290 homes (single section and multi-section combined) for untiered standards based on a price elasticity of demand of -0.48 for the analysis period (2023-2052). Out of the 53,329 homes in the tiered standard, the majority of the reduction is in Tier 2 (93 percent) vs. Tier 1 (7 percent). Within Tier 1, DOE estimates a 0.52 percent reduction (essentially no reduction) in availability due to Tier 1 standards for low income purchasers. Table III.1 provides a summary of the change in shipments for tiered standards. See section IV.c.1.b. for a discussion of price elasticity with respect to manufactured housing shipments and people who do not buy because they are price-sensitive.
As a sensitivity, DOE also considered a price elasticity of demand of -2.4 instead of -0.48. Further discussion on this sensitivity is provided in section IV.C.2 of this document. Table III.2 provides a summary of the change in shipments for tiered standards for price elasticity of -2.4 instead of -0.48.
On May 27, 2021, the CFPB issued another report entitled “Manufactured Housing Finance: New Insights from the Home Mortgage Disclosure Act Data” (the “2021 CFPB Report”).
DOE invites comment on whether (1) the manufacturer's retail list price threshold for Tier 1 under the tiered proposal is appropriate, (2) the untiered proposal in this SNOPR is cost-effective, generally, and (3) the untiered proposal is cost-effective for low-income consumers.
Finally, the scope proposed in this document provides additional clarification that the proposed energy conservation standards would apply to the design, construction and aspects of onsite completion of manufactured
On November 9, 2016, DOE published a NOPR for test procedures (2016 Test Procedure NOPR), as a companion to the draft energy efficiency standards rule for manufactured housing. See 81 FR 78733 (November 9, 2016). The 2016 Test Procedure NOPR proposed procedures for how those subject to energy conservation standards for manufactured housing would confirm products are in compliance with the standards. More specifically, the 2016 Test Procedure NOPR proposed procedures to determine compliance with the following metrices from the June 2016 NOPR: The R-value of insulation; the U-factor of windows, skylights, and doors; the solar heat gain coefficient of fenestration; U-factor alternatives to R-value requirements; the air leakage rate of air distribution systems; and mechanical ventilation fan efficacy. 81 FR 78733. A discussion of the 2016 Test Procedure NOPR may be found in section III.C of this document.
DOE is not addressing a test procedure, or compliance and enforcement provisions for an energy conservation standard for manufactured housing in this document. DOE continues to consult with HUD about pathways to address testing, compliance and enforcement for this proposed standard in a manner consistent with the current HUD inspection and enforcement process so that such testing, compliance and enforcement procedures are not overly burdensome for manufacturers. While many of the requirements in the proposed standard and alternative proposal would require minimal compliance efforts and costs (
DOE welcomes comment on approaches for testing, compliance and enforcement provisions for the proposed standards and alternative proposal. DOE also welcomes comments and information related to potential testing, compliance and enforcement under the current HUD inspection and enforcement process, and potential costs of testing, compliance and enforcement of the proposed standards and alternative proposal in this document.
EISA requires DOE to base standards for manufactured housing on the IECC. However, application of the IECC standards is also subject to a number of considerations set forth by the statute in order to ensure standards will be appropriately tailored for manufactured homes and the manufactured home market. Specifically, EISA requires that DOE establish energy conservation standards for manufactured housing that are “based on the most recent version of the [IECC], except in cases in which [DOE] finds that the [IECC] is not cost-effective, or a more stringent standard would be more cost-effective, based on the impact of the [IECC] on the purchase price and on total life-cycle construction and operating costs.” (42 U.S.C. 17071(b)(1)).
In addition to the required cost-effectiveness considerations, EISA explicitly allows DOE to consider the differences in design and factory construction techniques of manufactured homes, as compared to site-built and modular homes. (42 U.S.C. 17071(b)(2)) As noted in section II.B.2, the 2021 IECC applies generally to residential buildings, including site-built and modular housing, and is not specific to manufactured housing. The energy conservation standards proposed in this SNOPR are generally based on certain specifications included in the 2021 IECC while also accounting for the unique aspects of manufactured housing. DOE carefully considered the following aspects of manufactured housing design and construction in developing the standards:
• Manufactured housing structural requirements contained in the HUD Code;
• External dimensional limitations associated with transportation restrictions;
• The need to optimize interior space within manufactured homes; and
• Factory construction techniques that facilitate sealing the building thermal envelope to limit air leakage.
Upon consideration of these aspects of manufactured housing design and construction, DOE is not proposing to include several of the 2021 IECC requirements such as more stringent ceiling
EISA also allows DOE to base standards on the climate zones of the HUD Code instead of the IECC. (42 U.S.C. 17071(b)(2)(B)) There are differences in the number and boundaries of the HUD zones as compared to the IECC climate zones. For example, under the 2021 IECC climate zone map, California is divided into five climate zones (including zone variation based on moisture regimes), with four of the zones subject to SHGC maximums (0.40 applicable to climate zones 4 and 5, and 0.25 applicable to climate zones 2 and 3). Under the HUD zone map, all of California is within a single zone. Developing energy conservation standards based on the HUD climate zones, as DOE is proposing to do in this SNOPR and as permitted under EISA, necessitates deviating from the IECC. The updated proposal would establish thermal envelope requirements, as does the 2021 IECC, but setting the values for those requirements necessitates that DOE develop standard levels different than those in the 2021 IECC to account for the difference in the number of climate zones.
In addition, DOE has conducted a sensitivity analysis for an alternative exterior insulation requirement, R-21, for Tier 2 in zones 2 and 3. This alternative insulation requirement is based on (but not identical to) the 2021 IECC, which includes a requirement for continuous insulation (R-20+5). DOE developed this sensitivity analysis to evaluate the effects on life-cycle costs and payback period for Tier 2 consumers. This sensitivity analysis is further discussed in section IV.A.2 of this document.
In modifying the IECC requirements, DOE relied, in part, on the statutorily required interagency consultation with HUD. As discussed, the HUD consultation ensures that DOE is informed by HUD's expertise and statutory duties as they pertain to the role of manufactured housing in the U.S. housing market, as recognized by Congress. As a result of concerns raised by HUD regarding the need to maintain affordability, which interrelate with the cost-effectiveness concerns specified in 42 U.S.C. 17071, DOE is presenting a primary proposal based on tiered standards that would prescribe a complement of cost-effective energy
The proposed Tier 1 standards would apply to manufactured homes with a manufacturer's retail list price of $55,000 or less (in real 2019$). The proposed Tier 1 requirements incorporate IECC-based building thermal envelope component measures that result in an incremental purchase price increase of approximately $750. The proposed Tier 2 standards would apply to manufactured homes with a manufacturer's retail list price that is greater than $55,000 (in real 2019$). The Tier 2 standards would be based on the most recent version of the IECC, with consideration of the design and factory construction techniques of manufactured homes. As an alternative, DOE also proposes an untiered standard in which all manufactured homes would be at the same stringencies as the standards based on the most recent version of the IECC, similar to the Tier 2 standard.
The proposed manufacturer's retail list price tier threshold for the tiered standard was developed using loan and manufactured home purchase price data. The loan data were derived from the CFPB report.
DOE acknowledges that the boundary of the proposed tiers is being applied to manufacturers' retail list prices, while the underlying data from which the boundary is derived in the MHS 2019 PUF data are sales and/or purchase price data of manufactured homes. DOE understands the manufacturer's retail list price to be the price that the manufacturer provides in the sales contract to a distributor or retailer—
DOE believes the proposed threshold based on manufacturer's retail list price can sufficiently address the affordability concerns previously expressed by HUD and other stakeholders. DOE also notes that, based on its understanding of the MHS 2019 PUF data, the proposed $55,000 threshold would not vary significantly across regions. Although DOE is proposing a national retail price-based threshold, in consultations with HUD and the MHCC, DOE received comments and questions regarding the use of alternative metrics upon which to base the boundary between tiers, such as the size of the manufactured home. Accordingly, DOE also considered other threshold types that would be based on size (
The MHS 2019 PUF data set also provides data that relates Census region (the U.S. Census Bureau divides the country into four census regions) with purchase price. Table III.4 summarizes the average, minimum and maximum sales prices based on census region and section. In general, the data indicates that average price (specifically for single-section homes) does not differ significantly based on census region.
At this time, DOE has tentatively determined that a national retail price-based threshold will accomplish the purposes of EISA while taking into account the importance of affordable housing. However, DOE is considering conducting additional analyses on alternative thresholds prior to the final rule stage. DOE requests comment on this approach and whether other types of thresholds are worth considering for the final rule stage.
DOE requests comment on the use of a tiered approach to address affordability and PBP concerns from HUD, other stakeholders, and the policies outlined in Executive Order 13985. DOE also requests comment regarding whether the price point boundary between the proposed tiers is appropriate, and if not, at what price point should it be set and the basis for any alternative price points. DOE also requests comment on its assumptions regarding the use of high-priced loans (
DOE also requests comment on alternate thresholds (besides price point) to consider for the tiered approach, including a size-based threshold (
As mentioned previously, the threshold proposed in this SNOPR is based in real 2019 dollars. Accordingly, DOE also proposes under the tiered proposal that the manufacturer's retail list price thresholds would be adjusted for inflation (for the applicable year of compliance) using the most recently available Annual Energy Outlook (“AEO”) GDP deflator time series. For AEO 2020, Table III.5 provides the values of the GDP deflator time series.
DOE requests comment on using the AEO GDP deflator series to adjust the manufacturer's retail list price threshold for inflation. DOE requests comment on whether other time series, including those that account for regional variability, should be used to adjust manufacturer's retail list price.
The proposed lower incremental purchase price for manufactured homes covered by the Tier 1 standard was developed in response to concerns from HUD and other commenters regarding the incremental purchase price, and the ability of the first homeowner/purchaser for these homes to recoup the increase in purchase price and realize the savings offered by the greater energy
In determining the energy efficiency measure (EEM) combinations, DOE ensured that the performance-based overall thermal transmittance (
Accordingly, by focusing the Tier 1 standards on those measures that would result in an incremental purchase price increase of approximately $750, DOE proposes a way to take into account energy efficiency and cost-effectiveness in a manner consistent with the statute. Further discussion is provided in Chapter 6 of the TSD.
The proposed Tier 2 standard would be at the same stringencies as the standards based on the most recent version of the IECC, with consideration of cost-effectiveness and design and factory construction techniques of manufactured homes. (42 U.S.C. 17071(b)(1); 42 U.S.C. 17071(b)(2)(A)) The proposed building thermal envelope requirements for both tiers are presented in section III.E.2.b of this document.
This SNOPR reflects general comments to the June 2016 NOPR regarding the need to update the energy conservation standards for manufactured homes and the basis for any standards established. MHARR stated that HUD-regulated manufactured homes are already energy efficient, with median monthly energy costs that are either lower or comparable to the median monthly costs for site-built homes, without high costs to the consumer. (MHARR, No. 143 at p. 4) Next Step cited a study done by the American Council for Energy Efficient Economy (“ACEEE”) that found that residents of manufactured homes spend 30 percent more income on energy than the average American household and 66 percent more than owners of site-built homes. (Next Step, No. 174 at p. 1)
DOE also received several comments regarding the use of the IECC as a basis for this rulemaking. SBRA stated that the IECC is a weak regulatory basis for developing manufactured housing standards, as IECC is not developed with cost-effectiveness as a primary consideration. SBRA recommended that in the future, DOE base changes to energy conservation standards for manufactured housing primarily on methods and practices specific to the MH industry. (SBRA, No. 163 at p. 1)
As described in section II.A, EISA mandates that the manufactured housing energy conservation standards be based upon the most recent IECC, except in cases in which the Secretary finds that the IECC is not cost-effective, or a more stringent standard would be more cost-effective, based on the impact of the IECC on the purchase price of manufactured housing and on total life-cycle construction and operating costs. (42 U.S.C. 17071(b)(1)) As discussed, DOE evaluated the requirements of the IECC along with the other considerations enumerated by EISA. EISA also requires DOE to update the energy conservation standards no later than one year after any revisions to the IECC; therefore, future revisions to the standards will also be based on the IECC along with the other considerations identified by EISA. In this SNOPR, DOE proposes to include several IECC provisions with modification, incorporating some of the MH working group's recommendations that were based on cost-effectiveness. DOE also proposes to include modified IECC provisions to make the DOE standards better tailored to the manufactured housing industry, as discussed in further depth in the next paragraphs.
Regarding the statutory requirement to base standards on the IECC, the ICC stated in its comments that its codes generally do not apply rules that distinguish among buildings based on their structure or how they were built. ICC went on to state that it understands there may be technical reasons that warrant modifying the IECC standards, but it asserted that those changes should be based on a showing of impossibility and incompatibility with the manufactured housing process. (ICC, No. 160 at p. 2)
One of the considerations provided by EISA in establishing standards is “the design and factory construction techniques of manufactured homes.” (42 U.S.C. 17071(b)(2)(A)) The design and construction of manufactured homes was a main focus of the MH working group while developing the recommendations that DOE has considered in this rulemaking. For example, section R402.2.4 of the 2015 IECC (which was considered by the MH working group) and the 2021 IECC (which is the latest version of the IECC and considered in this SNOPR) include
Additionally, as noted previously, the authority under 42 U.S.C. 17071 to establish energy conservation standards for manufactured homes specifies that those standards “shall be based on” the most recent version of the IECC. In DOE's view, this does not require the energy conservation standards for manufactured homes to be an identical or verbatim equivalent of the IECC, especially in light of the other considerations DOE must make under the statute (
In another comment regarding the IECC, VEIC commented that DOE should include a provision to regularly update the standards with changes made to the IECC in the future. (VEIC, No. 187 at p. 2) In response, DOE notes that EISA already requires the agency to update its energy conservation standards for manufactured housing not later than “one year after any revision to the IECC.” (42 U.S.C. 17071(b)(3)(B)) DOE has considered the latest version of the IECC (the 2021 IECC) for this SNOPR, and is proposing energy conservation standards based on the latest version of the IECC. DOE will review subsequent IECC standards issued in the future and evaluate whether to update the energy conservation standards for manufactured housing based on the considerations required by EISA.
Southern Company questioned whether the new regulations are subject to the seven-factor test for cost-effectiveness as found in 10 CFR part 430. (Southern Company, Public Meeting Transcript, No. 148 at p. 143) DOE understands the question from Southern Company to refer to the seven statutory factors, as described in 42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII), that apply to energy conservation standards established under the Energy Conservation Program for Consumer Products Other than Automobiles (Title III, Part B of the Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA)). Manufactured housing is not a covered product under Title III, Part B of EPCA, and is subject to a separate statutory scheme (
As part of developing energy conservation standards for manufactured housing, DOE is undertaking a multi-stage process providing numerous opportunities for public comment and engagement, as discussed in further detail in section II.B.3 of this document. For this rulemaking, EISA requires DOE to “consult with the Secretary of HUD, who may seek further counsel from the Manufactured Housing Consensus Committee”. 42 U.S.C. 17071(a)(2)(B). Pursuant to the statutory requirement, DOE has consulted with HUD throughout the development of these standards, as discussed in section II.B.3. DOE met with HUD multiple times during the preliminary stages of the proposed rule, as well as throughout the rest of the rulemaking process, and consulted HUD in the development of the proposals in this SNOPR. As EISA expressly states that the Secretary of HUD may engage with the MHCC with regard to this rulemaking, DOE has attended three MHCC meetings, most recently in June of 2021, to gather further information and input on the rule. This proposed rule includes a number of the changes submitted by the MHCC (MHCC, No. 162), which mirrored comments from other individual stakeholders on the June 2016 NOPR. A number of other stakeholders, including industry stakeholders, have also provided information, data, and opinions regarding the rule. All interested stakeholders will have the opportunity to provide input and comments on this SNOPR.
In response to the 2016 NOPR, DOE received several comments regarding the rulemaking process used by DOE for these energy conservation standards. MHARR had numerous comments regarding issues with the overall process used for this rulemaking. MHARR asserted that the DOE rulemaking process was not transparent, and that the proposed rule was a violation of the 1974 National Manufactured Housing Construction and Safety Standards Act; the “arbitrary, capricious [or] abuse of discretion” standard of the Administrative Procedure Act; the Negotiated Rulemaking Act; and EISA. (MHARR, No. 154 at pp. 2-15)
MHARR was also concerned that a 2011 draft of the proposed rule was distributed to a select group of organizations. MHARR stated that following this distribution, a “fresh start” was required for the proposed rule, but there is no evidence that a “fresh start” actually occurred. (MHARR, No. 154 at pp. 2-15; MHARR, No. 143 at pp. 1, 3; MHARR, Public Meeting Transcript, No. 148 at p. 149)
As stated earlier, DOE is conducting this rulemaking pursuant to the statutory provisions in EISA that direct DOE to establish energy conservation standards for manufactured housing. This statutory directive is separate from the 1974 National Manufacturing Housing Construction and Safety Standards Act that governs HUD's authority in promulgating regulations for manufactured housing. Additionally, DOE demonstrates in section III.F how the standards proposed in this SNOPR do not conflict with those established by HUD. Furthermore, this discussion and related supporting analyses together present the analytical approach used by DOE in evaluating the relevant information and on which DOE based its determinations regarding the proposed requirements in accordance with the directives in EISA, the Administrative Procedure Act and the Negotiated Rulemaking Act. Accordingly, as discussed previously, in preparation for the prior negotiated rulemaking that produced the June 2016 NOPR, DOE set up a negotiated rulemaking process in accordance with the Federal Advisory Committee Act and the Negotiated Rulemaking Act, which included a broad and balanced array of stakeholder interests and expertise, and included a representative from MHARR. 79 FR 41456 (July 16, 2014).
DOE also received several comments regarding the consensus approach used in the June 2016 NOPR. SBRA and Clayton Homes supported the ASRAC decision to use a consensus approach for this rulemaking and recommended DOE should continue this method for future rulemakings regarding
With regard to the rulemaking process, DOE received several comments regarding the inclusion of the MHCC during the rulemaking. Several commenters stated that the proposed rule should not be finalized until the views and comments of MHCC are incorporated, as they have done for past HUD rulemakings. (Pleasant Valley Homes, No. 154 at p. 2; WVHI, No. 156 at p. 2; MHIM, No. 155 at p. 2; NMMHA, No. 157 at p. 2; MHIAZ, No. 161 at p. 2; PMHA, No. 164 at p. 2; Skyline Corporation, No. 165 at p. 1; OMHA, No. 166 at p. 2; MHI, No. 182 at p. 2; MMHA, No. 170 at p. 2; MHISC, No. 191 at p. 2; AMHA, No. 173 at p. 2, Commodore Corporation, No. 195 at p. 2) AMHA also stated that the proposed rule should not be finalized without thoughtful consideration of the detailed comments of professionals involved with manufactured housing including the MHCC, as well as MHARR and MHI. (AMHA, No. 173 at p. 3)
MHARR stated that DOE must consult with HUD and MHCC during the formulation of DOE standards, and that there is no evidence that these consultations ever occurred. (MHARR, No. 154 at p. 18) MHARR also commented that DOE never provided a chance for MHCC to provide substantive consensus input regarding the proposed rule and actively prevented any input from MHCC at any point when it would have mattered. (MHARR, No. 154 at p. 19) As stated previously, DOE has consulted both with HUD and engaged with the MHCC with regard to this rulemaking, and has incorporated information and considerations provided by HUD and the MHCC into this SNOPR.
DOE published a test procedure NOPR for manufactured housing on November 9, 2016. 81 FR 78733 (November 2016 test procedure NOPR). The November 2016 test procedure NOPR proposed applicable test methods to determine compliance with the following metrics that were included in a June 2016 NOPR: the
The November 2016 test procedure NOPR provided stakeholders an opportunity to comment on the proposed test procedure for manufactured housing. As discussed above, DOE is not addressing a test procedure in this rulemaking. DOE will consider the comments related to test procedures in any future action on test procedures.
In the November 2016 test procedure NOPR, DOE did not propose a system of certification, compliance, and enforcement (“CCE”), instead indicating those items would be addressed in a separate rulemaking. At this time, DOE is not addressing CCE issues in this rulemaking, but may do so in the future.
DOE received several comments identifying compliance and enforcement as a major issue that needs to be addressed. Several commenters stated that they are concerned that establishing standards prior to the establishment of a compliance regime would risk manufacturers facing complicated, conflicting, and overlapping requirements from both HUD and DOE. (Pleasant Valley Homes, No. 153 at p. 2; WVHI, No. 156 at p. 2; MHIM, No. 155 at p. 2; NMMHA, No. 157 at p. 2; MHIAZ, No. 161 at p. 2; OMHA, No. 166 at p. 2; MHCC, No. 162 at p. 2; MHI, No. 182 at p. 2; Clayton Homes, No. 185 at p. 1; Palm Harbor Homes, No. 193 at p. 3; MHISC, No. 191 at p. 2; AMHA, No. 173 at p. 2; Skyline Corporation, No. 165 at p. 2; NCJC, No. 184 at p. 2; Form Letters, No. 182 at p. 1; MHARR, No. 154 at p. 22) Commenters suggested that the proposed rule not be finalized until DOE and HUD can determine a single, efficient, and practical enforcement strategy, where HUD is the prime regulator. (MHI, Public Meeting Transcript, No. 148 at p. 11; MHI, Public Meeting Transcript, No. 148 at p. 142; Washington State University (WSU) Energy Program, Public Meeting Transcript, No. 148 at p. 146; Pleasant Valley Homes, No. 153 at p. 2; WVHI, No. 156 at p. 2; MHIM, No. 155 at p. 2; NMMHA, No. 157 at p. 2; MHIAZ, No. 161 at p. 2; Better Homes, No. 168 at p. 1; OMHA, No. 166 at p. 2; MHI, No. 182 at p. 2; ACEEE, No. 178 at p. 3; Next Step, No. 174 at p. 2; MMHA, No. 170 at p. 2; Clayton Homes, No. 185 at p. 1; Palm Harbor Homes, No. 193 at p. 3; MHISC, No. 191 at p. 2; AMHA, No. 173 at p. 2; Skyline Corporation, No. 165 at p. 2; MHI, No. 182 at p. 8; Form Letters, No. 182 at p. 1, Commodore Corporation, No. 195 at p. 2)
NEEA suggested that DOE establish a collaborative method with HUD to provide compliance oversight with the DOE standards. As suggested by NEEA, HUD could continue to use the existing Design Approval Primary Inspection Agencies (DAPIA) and Inspection Primary Inspection Agencies (IPIA) system, with DOE serving as a third-party review and technical support through periodic energy code compliance studies. (NEEA, No. 190 at p. 2)
ACEEE and South Mountain stated that in order to have effective compliance, it is important that DOE provide training and tools to assist manufacturers in compliance and to monitor effectiveness of implementation, particularly during the initial implementation period. (ACEEE, No. 178 at p. 4; South Mountain, No. 151 at p. 1) One particular technical tool that was suggested by SBRA and Palm Harbor Homes was a single software package that provides a platform for overall compliance. This software could check for HUD and DOE Code compliance, conduct loads analysis (Manual J), equipment sizing (Manual S), generate an Energy Rating Index, and check for ENERGY STAR® compliance. (SBRA, No. 163 at p. 2; Palm Harbor Homes, No. 193 at p. 3) Lastly, ACEEE commented that the residential compliance software used by DOE, REScheck, also be adapted to verify these new requirements. (ACEEE, No. 178 at p. 4)
DOE also received comments regarding specific aspects of compliance and enforcement. Earthjustice commented that DOE should move quickly to propose and finalize provisions related to compliance and enforcement, but that these specific provisions should not delay finalizing the overall rule. (Earthjustice, No. 169 at p. 2)
WSU Energy Program commented that insulation installations and air leakage compliance must be clear for IPIA- and DAPIA-approved quality assurance, suggesting a compliance approach that relies on existing HUD mechanisms. (WSU Energy Program, Public Meeting Transcript, No. 148 at pp. 42, 57)
ACEEE commented that some degree of energy-related information should be provided to purchasers, renters, and owners. To make this possible, ACEEE urged DOE to require MH manufacturers to use effective labeling and sales information that would easily convey the effects of the energy conservation standards to consumers, but without undue burden on manufacturers. (ACEEE, No. 178 at p. 4)
Modular Lifestyles commented that consumers do not usually buy homes directly from the manufacturer; normally, retailers will purchase the manufactured homes from the manufacturer to then sell to consumers. Modular Lifestyle commented that the manufacturer should be held accountable, upon the purchase of the manufactured home by the retailer, that the home meets the consumer's local energy conservation standards, as the manufacturer and consumer may be located in different DOE climate zones. (Modular Lifestyle, No. 141 at p. 2)
NCJC suggested both that compliance and enforcement standards be included in the energy conservation standard, and that a provision be added that would allow homeowners to sue manufacturers for failure to construct homes in accordance with these energy conservation standards. (NCJC, No. 184 at p. 2) GWU suggested DOE consider retrospectively reviewing its rule after implementation to assess any potential overlap or conflicts with the existing HUD Code. (GWU, No. 175 at p. 11)
DOE appreciates the comments received on potential options for a CCE system. DOE will consider the comments related to CCE received in this rulemaking and will consult with HUD in any future action on CCE.
This section discusses in detail the energy conservation standards proposed in this SNOPR, in particular as compared to the energy conservation standards as proposed in the June 2016 NOPR. In response to the 2021 IECC, additional analyses conducted by DOE, and comments received to the June 2016 NOPR, including those regarding potential adverse impacts on price-sensitive low-income purchasers of manufactured homes, DOE is updating the proposed energy conservation standards as presented in the June 2016 NOPR.
The following paragraphs discuss the tiered and untiered standard proposed for manufactured homes based on the 2021 IECC. As discussed previously, the proposed Tier 1 standard would include manufactured homes with a manufacturer's retail list price of $55,000 or less (in real 2019$) and would be subject to a less stringent set of standards, while providing cost-effective energy bill savings and positive cash flow within the first year of occupancy.
DOE is continuing to propose that standards would be codified in a new part of the CFR under 10 CFR part 460 subparts A, B, and C. Subpart A, as proposed, provides the scope of the standards, definitions of key terms, and other commercial standards that are incorporated by reference into this part. The subpart also would establish a compliance date of one year following the publication of the final rule.
As proposed, subpart B would include energy conservation standards requirements associated with the building thermal envelope of a manufactured home according to the climate zone in which the home is located. DOE bases its proposed building thermal envelope energy conservation standards on the three HUD zones. Under the proposal, manufacturers may choose between two pathways to comply, with each one ensuring an appropriate level of thermal transmittance through the building thermal envelope. The first pathway relies on prescriptive requirements for components of the building thermal envelope. The second pathway relies on performance requirements, under which a manufactured home is required to achieve a maximum
Proposed subpart C includes requirements related to duct leakage, HVAC thermostats and controls, service water heating, mechanical ventilation fan efficacy, and equipment sizing.
DOE received several comments regarding the rulemaking in general, both in favor of and opposed. A number of commenters stated that they support the overall standards proposed by DOE in the June 2016 NOPR. (ACEEE, Public Meeting Transcript, No. 148 at p. 17; NEEA, No. 190 at p. 1; South Mountain, No. 151 at p. 1; RECA, No. 188 at p. 1) ACEEE and RECA also commented on the many benefits of the requirements as proposed in the June 2016 NOPR, especially on the energy savings for the owners of manufactured homes. (ACEEE, Public Meeting Transcript, No. 148 at p. 17; RECA, No. 188 at p. 1) NEEA commented that it supports the improved overall building thermal envelope efficiency, citing both increased insulation and lower fenestration
Earthjustice and NCJC urged DOE to implement the proposed rule as soon as possible, as it has gone through a prolonged development process and general consensus was reached in late 2014. These commenters stated that additional time taken to implement this rule deprives new manufactured home homeowners the benefits of greater energy conservation standards. (Earthjustice, No. 169 at p. 1; NCJC, No. 184 at p. 1) NEEA stated that DOE provided more than adequate time for stakeholders to participate and provide comment, and that the rule should be finalized. (NEEA, No. 190 at p. 1)
DOE appreciates the comments supporting the proposed energy conservation standards and the projected benefits. DOE notes that the currently proposed standards were developed with consideration of recommendations received through an in-depth consensus process, recommendations received from a working group, consultations with HUD, and comments received during rulemaking. As noted, EISA requires DOE to base the energy conservation standards on the most recent version of the IECC (42 U.S.C. 17071(b)(1)), and that following the June 2016 NOPR, the 2018 and 2021 editions of the IECC were published. In response, DOE considered the changes to the IECC from the version used in the June 2016 SNOPR (2015 IECC), as well as cost-effectiveness considerations, in developing the energy conservation standards proposed in this SNOPR.
DOE also received comments urging caution in establishing a final rule. SBRA and NCJC stated that while they
Several commenters were specifically concerned with increased consumer cost, which is addressed in section IV.A.1.g, and issues regarding compliance, which is addressed in section III.D. (OMHA, No. 166 at p. 1; MHISC, No. 191 at p. 1; WVHI, No. 156 at p. 1; MHIM, No. 155 at p. 1; NMMHA, No. 157 at p. 1; MHIAZ, No. 161 at p. 1; PMHA, No. 164 at p. 1; Skyline Corporation, No. 165 at p. 1; Commodore Corporation, No. 195 at p. 1)
In response to comments received related to potential adverse impacts on price-sensitive, low-income purchasers, and in light of the consultation with HUD, DOE has updated its analyses specifically to evaluate the potential burden of incremental costs from energy conservation standards on low-income purchasers. To allow stakeholders to comment on the updated proposal contained in this SNOPR, DOE notes that it is proposing updated requirements based on further analyses and is requesting additional comments before establishing a final rule.
Section 431 of EISA directs DOE to establish energy conservation standards for manufactured housing. (42 U.S.C. 17071(a)(1)) In this SNOPR, DOE proposes that § 460.1 (1) restate the statutory requirement and introduce the scope of the requirements, and (2) require manufactured homes that are manufactured on or after one year following publication of the final rule to comply with the requirements established, consistent with the June 2016 NOPR. 81 FR 39756, 39766 DOE stated that a 1-year notice period is a common industry practice for changes to building codes, and would allow manufacturers to transition their designs, materials, and factory processes to comply with the finalized DOE energy conservation standards.
In response to the June 2016 NOPR, ACEEE and South Mountain supported the 1-year period before the rule becomes effective, stating a 1-year period appropriately balances the urgency of implementing the energy conservation standards and the work required of manufacturers to implement changes. (ACEEE, No. 178 at p. 1; South Mountain, No. 151 at p. 1) RECA recommended an implementation timeline of no longer than one year, as outlined in the June 2016 SNOPR. (RECA, No. 188 at p. 2) RECA, Next Step Network, and Modular Lifestyles commented that many manufacturers produce higher efficiency homes that already meet the energy conservation standards, indicating that the path to compliance was known and well established. (RECA, No. 188 at p. 2; Next Step, No. 174 at p. 1; Modular Lifestyles, No. 141 at p. 2) AGA and APGA suggested that the lead time for compliance instead be 5 years, as this would both allow more time for the market to adjust as well as give more time to educate consumers. (AGA and APGA, No. 172 at p. 1) In addition, Advocacy recommended that DOE adopt delayed compliance schedules for small manufacturers, as this would allow them to manage their limited resources. (Advocacy, No. 177 at p. 4)
As noted in comments previously, the industry has experience with the means to comply with the proposed requirements. DOE notes that section 413 requires DOE to update the manufactured home standards within one year following an update to the IECC. (42 U.S.C. 17071(b)(3)(B)) A one-year lead time for compliance would allow DOE to evaluate industry compliance with the proposed standards, if made final, prior to consideration of updates to the IECC in 2024, as required by the statute. The one-year lead time would also minimize the lag time between updates to the IECC and any potential updates to the DOE standards, ensuring that manufactured home purchasers are receiving energy savings based on the most recent model energy codes.
DOE recognizes that compliance with the DOE energy conservation standards may require manufacturers to update designs and certifications required under the HUD Code. However, EISA requires DOE to base the energy conservation standards for manufactured homes on the latest edition of the IECC, with considerations made for cost-effectiveness. As discussed in detail in section I.A, while manufacturers may incur costs to update designs to meet the proposed standards, if finalized, these costs appear outweighed by the benefits gained in energy savings by manufactured home purchasers as a result of the standards.
DOE requests comment on whether a one-year lead time would be sufficient given potential constraints that compliance with the DOE standards may initially place on the HUD certification process, and whether a longer lead time (
In this SNOPR, DOE proposes to maintain certain definitions proposed in the June 2016 NOPR, update other definitions from the June 2016 NOPR based on comments received, and add/update certain definitions based on the later IECC version published since the June 2016 NOPR (the 2018 IECC and the 2021 IECC). As such, DOE proposes the definitions for the following terms proposed in the June 2016 NOPR remain the same for § 460.2: “automatic,” “ceiling,” “climate zone,” “continuous air barrier,” “door,” “duct,” “duct system,” “fenestration,” “floor,” “glazed or glazing,” “insulation,” “manufactured home,” “manufacturer,” “manual,” “
Furthermore, DOE proposes definitions in the SNOPR for the following terms that are either (1) updates from the June 2016 NOPR, (2) new proposals based on the 2018 and 2021 IECC, or (3) other clarifications needed, as discussed later in this section: “access (to)”; “air barrier”; “building thermal envelope”; “conditioned space”; “dropped ceiling”; “dropped soffit”; “eave”; “equipment”; “exterior ceiling”; “exterior floor”; “exterior wall”; “heated water circulation system”; “2021 IECC”; “opaque door”; “skylight”; “skylight well”;
The following paragraphs summarize the comments received to the June 2016 NOPR and DOE's analysis of the 2018 and 2021 IECC updates to the definitions.
COBA requested that a definition of the term “affordable housing” be added. COBA suggested the following:
ACC FSC requested that DOE define “continuous insulation.” (ACC FSC, No. 186 at p. 1) DOE determined in the June 2016 NOPR that a definition for “continuous insulation” was not necessary, as it was deemed not relevant to the proposed energy conservation requirements. Because the regulatory text proposed does not use the term “continuous insulation,” DOE is not proposing a definition for this term.
NEEA commented that improved clarity on what is considered interior conditioned space is needed. NEEA stated that the space under the floor but above insulation should not be considered conditioned space. (NEEA, No. 190 at p. 2) DOE recognizes that there was some confusion regarding the definition of “conditioned space” proposed in the June 2016 NOPR. DOE intended to use the 2015 IECC definition for the term “conditioned space,” but an error led to an incorrect definition being listed in § 460.2 of the proposed regulatory text. For this SNOPR, DOE proposes that the definition of conditioned space match the 2021 IECC definition, which is the same as the 2015 IECC definition for conditioned space. Using this proposed definition, the space under the floor but above the insulation is considered conditioned space. As DOE is proposing the term as defined in the IECC, the term is appropriately understood by industry. Therefore, DOE proposes to define “conditioned space” as an area, room, or space that is enclosed within the building thermal envelope and that is directly or indirectly heated or cooled. Spaces are indirectly heated or cooled where they communicate through openings with conditioned space, where they are separated from conditioned spaces by uninsulated walls, floors or ceilings, or where they contain uninsulated ducts, piping, or other sources of heating or cooling.
NEEA recommended that “skylight wells” be defined as exterior walls, to clearly indicate that they require insulation to at least exterior wall insulation levels. (NEEA, No. 190 at p. 3) While “skylight” is defined in the 2021 IECC, “skylight well” is not defined. As suggested by NEEA, a “skylight well” would extend from the interior finished surface of the exterior ceiling to the exterior surface of the roof. For some homes, the upper part of this well may exist above the exterior ceiling insulation. This upper part of the well would provide an uninsulated path from the interior to the exterior of the home if the skylight well were not insulated. Per the proposed definition of exterior wall, “skylight wells” would be considered exterior walls. DOE agrees with NEEA's suggestion to define the term “skylight well,” which DOE proposes to define as encompassing the walls underneath a skylight that extend from the interior finished surface of the exterior ceiling to the exterior surface of the location to which the skylight is attached.
DOE also proposes to specify that skylight wells are exterior walls by updating the definition of “exterior wall” to include skylight wells. DOE proposes to define “exterior wall” as a wall, including a skylight well, that separates conditioned space from unconditioned space.
HUD's allowance of “alternative construction” of manufactured homes permits manufacturers to utilize new designs or techniques. 24 CFR 3282.14. One such home design can be a multistory manufactured home. In this SNOPR, DOE proposes that the ceiling, wall, and floor building thermal requirements for these energy conservation standards are only for the exterior ceiling, wall, and floor that separate conditioned space from unconditioned space, not for any internal ceilings that can be found in a multistory manufactured home, or for interior walls. Therefore, DOE proposes adding definitions for the term “exterior ceiling” as a ceiling that separates conditioned space from unconditioned space and “exterior floor” as a floor that separates conditioned space from unconditioned space.
DOE also proposes to update the following definitions proposed in the June 2016 NOPR that included “ceiling” and “floor” to include the use of “exterior ceiling” and “exterior floor,” as appropriate: “building thermal envelope,” “dropped ceiling,” “dropped soffit,” “eave,” and “rough opening.”
DOE also reviewed several relevant definitions updated since the publication of the 2015 IECC (in the 2018 IECC and the 2021 IECC). For the 2018 IECC, the updates included the following terms: “air barrier” and “building thermal envelope.” These same updates were carried over to the 2021 IECC. DOE reviewed these updates and finds them to be clarifications rather than substantive changes. Specifically, the 2018 (and 2021) IECC definition for “air barrier” clarified that the materials should be joined together in a continuous manner to restrict or prevent passage of air through the building thermal envelope; the “continuous manner” element was not part of the same definition in the 2015 IECC. The addition of this term means that the material should be joined together without any thermal bridges, other than fasteners and service openings, so that any passage of air through the building thermal envelope is prevented. DOE notes that the term “continuous” is one generally used by and understood within industry and is consistently used in the 2021 IECC (without being defined).
The 2018 (and 2021) IECC definition for “building thermal envelope” specified that it should be building element assemblies as opposed to just building elements. DOE has tentatively determined this update to be non-substantive because it clarifies the original intent of the definition to include all components that separate conditioned from unconditioned space. In addition, the 2018 IECC also added a new definition for “opaque door.” The term opaque door is included in the definition for “vertical fenestration” but previously had not been defined. The 2018 IECC defines an opaque door as a door that is not less than 50 percent opaque in surface area.
For the 2021 IECC, the relevant updates included the following terms: “accessible,” which was replaced by “access (to),” and “skylights.” DOE had only previously proposed a definition for “accessible” because the 2015 IECC defined the term and included the term in the residential provisions, which DOE had incorporated into the regulatory text. However, the 2021 IECC replaces “accessible” with “access (to)”
In addition, the 2021 IECC clarifies that skylights include “unit skylights, tubular daylighting devices, and glazing materials in solariums, sunrooms, roofs and sloped walls.” DOE understand these updates to be clarifications rather than a substantive change and does not alter the meaning of the original definition. Therefore, DOE proposes to include this clarification in the proposed skylight definition. Accordingly, DOE proposes to include the updated definitions for “air barrier,” “building thermal envelope” and “skylight” and the new definition for “opaque door” and “access (to)” in this SNOPR.
In review of the proposed regulatory text from the June 2016 NOPR, DOE also recognized that the term “Circulating hot water system” is defined, but the term “heated water circulation system” is used in the substantive requirements of the June 2016 NOPR. In this SNOPR, DOE proposes to change this defined term to reflect what is used in the substantive provisions of the regulations. Additionally, DOE defined the term “service hot water” in the June 2016 SNOPR, but the proposed substantive requirements also used the term “service water heating.” The IECC uses both terms. For consistency DOE proposes to define and use the term “service hot water” throughout the regulations.
DOE also recognized that the June 2016 NOPR definition for “equipment” included the term “appliances”. However, the MH working group generally did not recommend provisions addressing appliances. Furthermore, this SNOPR is not proposing requirements for appliances that are regulated pursuant to the statutory scheme in EPCA. Therefore, DOE proposes to remove “appliances” from the definition of “equipment.”
DOE also recognized that the term “infiltration” was defined in the proposed regulations in the June 2016 NOPR but was not otherwise used. As the term is not used in the regulatory text, DOE proposes to not include a definition for “infiltration” in this SNOPR.
DOE requests comment on its understanding of the definitional changes in the 2018 IECC and the 2021 IECC. DOE also requests comments on its changes to the proposed definitions as compared to those proposed in the June 2016 NOPR.
In this SNOPR, DOE is not proposing to incorporate the 2021 IECC by reference. The 2021 IECC serves as the basis for the regulations proposed in this document, with the proposed requirements addressing technical issues specific to manufactured homes, relying on the HUD zones, and addressing issues related to health and safety, as well as the need to preserve the affordability of manufactured homes.
Further, DOE continues to propose to incorporate by reference Air Conditioning Contractors of America (“ACCA”) Manual J; ACCA Manual S; and “Overall
In response to the June 2016 NOPR, ACCA commented in favor of the references to Manual J and Manual S. (ACCA, No. 159 at p. 2) DOE also received comments regarding the 2015 IECC (which was the basis of the June 2016 NOPR requirements). The ICC commented that it is concerned with the manner that DOE proposed to use and modify the IECC, which is copyrighted, specifically that DOE did not incorporate by reference the 2015 IECC. Referencing Circular OMB Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, Revised,” ICC stated that all “Federal agencies must use voluntary consensus standards in lieu of government-unique standards in their procurement and regulatory activities,” and that DOE must report the reasons for its use of government-unique standards in lieu of voluntary consensus standards. The ICC also commented that section 5.g of the OMB Circular A-119 directs agencies “to observe and protect the rights of the copyright holder.” (ICC, No. 160 at p. 3) ICC commented that in order to meet minimum requirements for OMB-A119, DOE must “(a) expressly acknowledge that the IECC is a copyright protected document, published and owned by ICC; (b) explicitly state that any reproduction or copying of the standard (other than for personal, non-commercial purposes) requires express written permission or license from ICC; and (c) state that copies of the IECC are available for purchase from ICC at its website,
Subject to copyright law, DOE acknowledges that the IECC is a copyright protected document, published and owned by the ICC, and that reproduction or copying of the IECC requires written permission or license from the ICC. As noted above, copies of the IECC are available for purchase at
DOE requests comment on incorporating by reference ACCA Manual J, ACCA Manual S, and “Overall
Proposed § 460.4 would specify that manufactured homes would be required to comply with the proposed building thermal envelope in subpart B and the equipment and controls requirements in subpart C, as applicable. The proposed requirements of subparts B and C are discussed in the following paragraphs. As discussed, DOE is proposing a tiered proposal with two tiers of energy conservation standards based on the manufacturer's retail list price of a manufactured home. Under the tiered proposal proposed § 460.4 would specify the requirements applicable to the two tiers.
The proposed requirements in subpart B relate to climate zones, the building thermal envelope, installation of insulation and building thermal envelope leakage for manufactured homes. The following sections provide further details, a discussion of comments on the June 2016 NOPR relevant to subpart B and responses to any such comments. As discussed above, the tiered standards approach is DOE's primary proposal in this document
Pursuant to EISA, DOE may base its energy conservation standards on the climate zones established by HUD rather than on the climate zones contained in the IECC. (42 U.S.C. 17071(b)(2)(B)) The potential for climactic differences to affect energy consumption supports an approach in which energy conservation standards account for geographic differences in climate. In this SNOPR, DOE proposes to align with the HUD climate zones.
As indicated in Figure III.1, the HUD Code divides the United States into three distinct climate zones for the purpose of setting its building thermal envelope requirements, the boundaries of which are separated along state lines. By contrast, as indicated in Figure III.2, section R301 of the 2021 IECC divides the country into nine climate zones, the boundaries of which are separated along county lines. The 2021 IECC also provides requirements for three possible variants (dry, moist, and marine) within certain climate zones, as indicated in Figure III.2. The HUD Code zones were developed to be sensitive to the manner in which the manufactured housing industry constructs and places manufactured homes into the market. The IECC climate zones are separated along county lines to reflect a more granular overview of climate distinctions within the United States, and to facilitate state and local enforcement of the IECC for residential and commercial buildings, including site-built and modular construction.
In the June 2016 NOPR, proposed § 460.101 provided for four climate zones, as illustrated in Figure III.3. This was based on the MH working group recommendation that DOE establish four climate zones that placed cities with the same set of most-cost-effective building thermal envelope requirements in the same climate zone. DOE's proposed climate zones bifurcated Texas, Louisiana, Alabama, Mississippi, Georgia, and Arizona.
DOE received several comments regarding climate zones. Modular Lifestyles recommended alternate climate zones. It stated that the local building ZIP code should be used to determine the building climate zone for the placement of a manufactured home. As an example, it referenced the California Energy Commission's climate zones for California, which has 16 building climate zones based on ZIP codes. (Modular Lifestyles, No. 141 at p. 1) In essence, Modular Lifestyles advocated for a finer resolution in climate zones, potentially with even more climate zones than listed in the IECC.
In the June 2016 NOPR, DOE proposed four climate zones based on the recommendation and analysis completed by the MH working group (using the 2015 IECC), which placed cities with the same set of most-cost-effective building thermal envelope requirements in the same climate zone. As noted above, in this document DOE is proposing in this SNOPR a set of energy efficiency requirements applicable to Tier 1 manufactured
In this SNOPR, DOE proposes to incorporate the HUD zones instead of the June 2016 NOPR-proposed climate zones, as explicitly permitted under EISA. (42 U.S.C. 17071(b)(2)(B)) As noted, the HUD zones were developed with specific consideration of the manner in which the manufactured housing industry constructs and places manufactured homes into the market. The HUD zone boundaries are separated along state lines, whereas the June 2016 NOPR-proposed climate zones bifurcated certain states. Aligning the climate zones between the DOE requirements and the HUD Code would reduce the complexities faced by manufacturers in coordinating compliance between the two sets of requirements. Additionally, it would reduce the potential for confusion of manufactured home purchasers, by allowing them to rely on a single map to determine whether a manufactured home would be appropriate for a given location, as opposed to requiring them to consult one map under the HUD Code and a different map under the DOE requirements.
Modular Lifestyle's suggestion to use local building zone ZIP codes to determine climate zones would extend the subdivision of states and be overly burdensome for manufacturers. Although its suggested climate zones could more accurately account for U.S. climatic conditions that affect energy use, the potential benefit of this accounting would be offset by the impracticality to the manufactured housing industry of developing homes per building ZIP code, with multiple zones existing within the same state, where the eventual destination of the home is not always known when the home is manufactured.
DOE also received comments regarding the proposed climate zone map (Figure 460.101), Table 460.101-1, and Table 460.101-2 from the June 2016 NOPR that provided a list of the U.S. states located in each climate zone. Several commenters stated that there was inconsistency between where Kentucky was located in Figure 460.101, and where it was located in Table 460.101-1. (Cavco, No. 167 at p. 1; Earthjustice, No. 169 at p. 2; MHI, No. 182 at p. 1; Clayton Homes, No. 185, at p. 2; PMHA, No. 164 at p. 3) Cavco, Clayton Homes, and MHI recommended that Kentucky be moved to climate zone 3 in the map figure. Several commenters also stated that California was missing in Table 460.101-1 and Table 460.101-2, and therefore the tables needed to be updated. (Clayton Homes, No. 185 at p. 2; MHCC, No. 162 at p. 1; Earthjustice, No. 169 at p. 2; Skyline, No. 165 at p. 2) As already discussed, for this SNOPR, DOE proposes to align with the HUD zones as opposed to the June 2016 NOPR
DOE requests comment on basing the climate zones on the three HUD zones instead of the June 2016 NOPR-proposed four climate zones, or other configuration of climate zones. DOE further requests input on whether energy efficiency requirements should be based on smaller geographic areas than provided with the 3 or 4 zone model.
In this SNOPR, DOE's primary proposal is the tiered proposal and the alternate proposal is the untiered proposal. Both proposals are based on the HUD zones. For the tiered proposal, Tier 1 would incorporate building thermal envelope measures based on certain thermal envelope components subject to the 2021 IECC but would limit the incremental purchase price increase to an average of approximately $750. For Tier 2, DOE proposes building thermal envelope measures based on those proposed in the June 2016 NOPR, updated to reflect the HUD zones and the 2021 IECC requirements. The alternate untiered proposal requirements would be the same as the Tier 2 requirements.
Consistent with the June 2016 NOPR, DOE proposes to add § 460.102 in the regulatory text to establish requirements related to the building thermal envelope, including the materials within a manufactured home that separate the interior conditioned space from the exterior of the building or interior spaces that are not conditioned space. Further DOE also proposes that § 460.102(a) would provide manufacturers the option of choosing one of two pathways for compliance to ensure that the building thermal envelope would meet more stringent energy conservation levels. These two pathways are known as the prescriptive approach and the performance approach. Consistent with the recommendation of the MH working group and the June 2016 NOPR, DOE proposes to allow manufacturers to choose between these two pathways for compliance, which would result in cost-effective energy savings for homeowners while providing for flexibility within the manufactured housing industry. Term Sheet, No. 107 at pp. 3-4. This approach is consistent with the 2021 IECC, which provides a climate zone-specific prescriptive building thermal envelope component pathway (R402.1.2) and an alternate pathway to compliance, which allows for a home to be constructed using a variety of materials as long as the entire building thermal envelope has a maximum, singular total UA value
Further, consistent with the June 2016 NOPR, DOE continues to propose that the prescriptive requirements would establish specific component minimum
In developing the set of Tier 1 energy efficiency measures proposed in this document, DOE considered measures for building elements of manufactured homes based on building components subject to the 2021 IECC (
In developing the set of Tier 2 energy efficiency measures proposed in this document, DOE first mapped the June 2016 NOPR requirements (based on four climate zones) to HUD zones (based on three climate zones). DOE used the manufactured home national shipment percentages for each of the cities analyzed,
For proposed climate zone 1, the cities identified were in either the June 2016 NOPR
Next, DOE considered the updates to the 2021 IECC. In reviewing Section R402.1 of the 2021 IECC, DOE determined the following relevant updates are merited when compared to the 2015 IECC that the MH working group had considered:
• The maximum fenestration
• The maximum glazed fenestration SHGC was updated from NR to 0.40 for IECC climate zones 5 and marine 4.
• The minimum ceiling
• The minimum wall
With regards to the 2021 IECC updates, DOE did not incorporate the minimum ceiling
Therefore, for the tiered proposal, the Tier 1 prescriptive building thermal envelope requirements are presented in Table III.7 and the Tier 2 prescriptive building thermal envelope requirements are presented in Table III.8. The untiered proposal's building thermal envelope requirements would be the same as the Tier 2 requirements presented in Table III.8.
For the exterior wall insulation, the “+5” involves using “continuous insulation,” which is insulation that runs continuously over structural members and is free of significant thermal bridging. As a sensitivity analysis, DOE considered the impacts on the LCC savings from requiring less stringent exterior wall insulation (at R-21 instead of R-20+5) to remove the continuous insulation requirement. At R-20+5, the incremental cost relative to the baseline is $2,500, versus $850 for R-21. DOE considered this alternative insulation requirement for zones 2 and 3 to address potential equity impacts in the regional distribution of benefits and costs and to ensure that each metro area analyzed could experience a positive LCC at Tier 2. DOE is considering additional analysis to further explore the impacts of R-21 for Tier 2 homes and the untiered proposal prior to the final rule stage. Further discussion on the sensitivity analysis results is provided in section IV.A.2.
As discussed, use of the HUD zones (or the climate zones proposed in the June 2016 NOPR) instead of the IECC climate zones does not allow for use of the IECC requirements absent modification. In line with the building thermal envelope requirements and use of the HUD zones, proposed in this document, DOE proposes the following changes to the June 2016 NOPR-proposed regulatory text:
• Update the requirement regarding the use of a combination of
• Update the maximum
• Update the building thermal envelope performance requirements. DOE calculated the updated
• Update the area-weighted average vertical fenestration
• Update the area-weighted average skylight
DOE also notes that section R401.2.5 of the 2021 IECC requires that in addition to the prescriptive compliance option, additional energy efficiency requirements must be utilized to achieve further energy savings. Section 408.2 provides five additional efficiency package options to achieve these additional energy savings, which include: (1) Enhanced envelope performance; (2) more efficient HVAC equipment performance; (3) reduced energy use in service water heating; (4) more efficient duct thermal distribution; and (5) improved air sealing and efficient ventilation system.
In developing recommendations the MH working group evaluated the 2015 IECC, which does not include comparable provisions to section R401.2.5 and R408.2 of the 2021 IECC. However, the MH working group generally did not recommend provisions addressing minimum appliance efficiencies. For example, the MH working group reached consensus that R401.5 of 2015 IECC, which provided for tradeoffs between the building thermal envelope and HVAC equipment and other appliances, was not applicable to manufactured homes. (MH working group, No. 107 at p. 22) Consistent with the recommendations of the MH working group, the performance requirements in the proposed energy conservation standards are specific to the building thermal envelope only, and do not incorporate any specifications on HVAC energy efficiency. Accordingly,
Further, DOE also did not examine the more efficient duct thermal distribution option based on EISA's allowance to consider the design and factory construction techniques of manufactured housing. (42 U.S.C. 17071(b)(2)) DOE understands that the requirements in R408.2 of the 2021 IECC focus primarily on the location of the duct or ductless systems in a home (in terms of duct thermal distribution design) as opposed to improving efficiency of the ducts as already installed and designed. Therefore, the options remaining were those that DOE considered are relevant to manufactured homes and this rulemaking, which include the enhanced envelope performance option and the improved air sealing and efficient ventilation option.
The enhanced envelope performance option in the 2021 IECC requires that the total building thermal envelope UA (the sum of
The improved air sealing and efficient ventilation system option requires that the measured air leakage rate is less than or equal to three air changes per hour (“ACH”), with either heat recovery ventilators (“HRV”) or energy recovery ventilators (“ERV”), installed (with specific requirements on airflow). An HRV recovers heat from the exhaust air and then adds it to the supply air drawn from outside the home. An ERV also recovers heat from the exhaust air, but also transfers some of the moisture from the exhaust air to keep the humidity in the home at a constant level. DOE notes that ERV and HRV fans can be applicable to manufactured housing. However, this option would require an HRV or ERV, which the MH working group or DOE had not considered previously.
Analysis conducted in support of the DOE Building Energy Codes Program (“BECP”) suggests that a primary first cost for HRV could be as high as $1,500.
DOE requests comment on the Tier 1 energy conservation standards, which would be applicable to manufactured homes with a manufacturer's retail list price of $55,000 or less. DOE also requests comment on the proposed energy conservation standards based on the most recent version of the IECC for the Tier 2 and untiered standards and the consideration of R-21 sensitivity for exterior wall insulation for climate zones 2 and 3.
DOE requests comment on the additional energy efficiency requirements from the 2021 IECC and whether they should apply to manufactured homes, including those that DOE has initially considered as not applicable to manufactured homes. If so, DOE requests comment on how these requirements would apply and the costs and savings associated with these requirements.
The following sections discuss comments DOE received regarding the building thermal envelope requirements proposed in the June 2016 NOPR, and any other corresponding proposed changes to the June 2016 NOPR requirements.
DOE received several comments regarding the prescriptive requirements proposed in the June 2016 NOPR. NEEA commented that the prescriptive requirements for exterior walls, floor, ceiling, and fenestration should be based on
DOE also received several comments regarding the
Based on the comments received, DOE revisited the calculations performed to determine the
DOE used a different
DOE based certain aspects of its rulemaking analysis (
DOE also received a comment regarding
In response, DOE notes that the objective of the
DOE also received specific comments regarding the prescriptive requirements. NEEA recommended that DOE should provide a list of typical constructions with nominal
ACC FSC stated that there should be a reference to a document that lists
Palm Harbor Homes stated that Table 460.102-2 lists alternative
DOE received a comment regarding the performance requirements proposed in the June 2016 NOPR. ACC FSC stated that the performance requirements allow for unlimited tradeoffs to the building envelope, as long as the net thermal performance is achieved. It commented that this approach assumes that all components are working together simultaneously, and that the maintenance of HVAC components is sustained. ACC FSC stated, however, that the thermal envelope will last much longer than the service lives of tradeoff components such as HVAC, and the short-term components will be required to be replaced. It suggested that the performance path should have a back-stop to prevent excessive tradeoffs of the thermal envelope. (ACC FSC, No. 186 at p. 1)
The performance requirements in the proposed energy conservation standards are specific to the building thermal envelope, and do not incorporate any specifications on HVAC energy efficiency or maintenance. Therefore, tradeoffs are only allowed within the
• A maximum area-weighted average vertical fenestration
• A maximum area-weighted average skylight
• Windows, skylights, and doors containing more than 50 percent glazing by area to satisfy the SHGC requirements under § 460.102(a) on the basis of an area-weighted average.
DOE received several comments on the June 2016 NOPR that suggested that climate zones 1 and 2 should be combined into one climate zone, such that there would be three climate zones in total. Commenters stated that a SHGC requirement of 0.33 would then apply to all homes in the new combined climate zone. (Lippert Components, No. 152 at p. 1; MHIAZ, No. 161 at p. 3; PMHA, No. 164 at p. 3; Cavco, No. 167 at p. 1; SBRA, No. 163 at p. 3; Skyline, No. 165 at p. 2; OMHA, No. 166 at p. 2; MHI, No. 182 at p. 1; MMHA, No. 170 at p. 3; Clayton Homes, No. 185 at p. 2; Palm Harbor Homes, No. 193 at p. 1; MHISC, No. 191 at p. 2; MHIM, No. 155 at p. 3; Commodore Corporation, No. 195 at p. 3) During the June 2016 NOPR public meeting and in its written comments, ACEEE and South Mountain supported the four proposed climate zones. (ACEEE, Public Meeting Transcript, No. 148 at p. 35; ACEEE, No. 178 at p. 2; South Mountain, No. 151 at p. 1)
As part of its written comment, SBRA also performed its own analysis on SHGC for climate zones 1 and 2 and found that 0.33 for both climate zones 1 and 2 was most cost-effective for both zones. SBRA stated that it believes that DOE's analysis in the February 2015 RFI was based on an atypical set of assumptions (
Regarding the SHGC requirements proposed by DOE in the June 2016 NOPR, Lippert Components stated that the increased stringency on solar heat gain only really benefits those in the glazing industry, and the increased cost associated with increased stringency will reduce the sales of manufactured homes. Lippert Components suggested that the more stringent value of SHGC only be considered after real energy usage in homes has been evaluated and shows that it is a cost-viable option. (Lippert Components, No. 152 at p. 1)
For climate zone 2, RECA commented that SHGC should be 0.25, consistent with the 2015 IECC, but did not comment in the context of the number of climate zones. It stated that DOE should not diverge from the IECC value, as the statute only allows deviations from the IECC value when the code is either not cost-effective, or when “a more stringent standard would be more cost-effective.” RECA asserted that the IECC value of 0.25 is cost-effective, and the statute does not allow for a less stringent standard that would be more cost-effective. (RECA, No. 188 at p. 3) RECA also commented that DOE's analysis of cost effectiveness for SHGC values did not use worst-case orientation of all windows facing west. (RECA, No. 188 at p. 3) (In response to comments received on the February 2015 RFI, DOE changed the assumption from all windows oriented west to assuming an even distribution of the windows.) RECA also stated that low-SHGC fenestration is both widely available and widely used in the proposed climate zone 2. (RECA, No. 188 at p. 4) ACEEE stated that it has no objection to climate zones 1 and 2 having the same required SHGC level considering that all other aspects of the standard are the same for the two zones; however, ACEEE did not recommend any specific SHGC. (ACEEE, No. 178 at p. 2)
As already discussed in III.E.2.a of this document, DOE proposes to align the climate zones to the HUD zones (three zones) instead of the June 2016 NOPR
For the energy modeling in Energy Plus 5.0, DOE used the same assumptions as the June 2016 NOPR analysis for window-to-floor area, window shading, and window cost, which were recommendations from the MH working group and formed the basis of the MH working group's deliberations and recommendations. DOE continues to find the assumptions of the MH working group appropriate and is continuing to apply them in this SNOPR rather than those assumptions from the SBRA analysis. As explained in the June 2016 NOPR, DOE did not find reason to use assumptions different from those recommended by the MH working group based on the considerations of the MH working group arriving at them. 81 FR 39756, 39772.
In addition, while DOE had originally modeled all windows facing west, based on comments received in response to the February 2015 RFI, DOE changed the assumption from all windows oriented west to assuming an even distribution of the windows. DOE maintains the assumption of uniform window distribution in the SNOPR, rather than RECA's assumption of all windows due west. As explained in the June 2016 NOPR, although the assumption of all windows facing west represents the highest energy use window orientation, consumers of manufactured homes with other window orientations would not experience as large an economic benefit. 81 FR 39756, 39772.
Regarding the window costs specifically, SBRA stated that DOE's estimate for the incremental cost to the consumer to improve the SHGC from 0.33 to 0.25 for a single-section home was too low. While DOE used an incremental cost of $91, SBRA stated that it determined that the incremental cost for the SHGC improvement would be $144. SBRA stated that it gathered pricing data from the industry's major window suppliers but did not provide the sources for this information or the calculations used to arrive at this estimate. Additionally, it did not provide its estimate for the incremental cost for multi-section homes.
In response to SBRA's comment on window costs, DOE conducted further
RECA commented that reduced SHGC fenestration can result in benefits like smaller air conditioning systems (which have a lower purchase price) and the reduction of peak-load electricity demand due to smaller cooling loads (and the smaller cooling equipment). (RECA, No. 188 at p. 3) In the June 2016 NOPR, DOE did not include air conditioner downsizing and associated cost savings opportunities in its SHGC analysis (or any of its cost-effectiveness analysis).
DOE recognizes that decreases in air conditioning equipment size and peak electric load may result from the proposed requirements. However, these outcomes may not happen in practice for all consumers. Further, while reduction in peak demand is a benefit to the nation, not all consumers have an energy bill pricing structure (time of use based) that would afford them direct benefits. Therefore, DOE did not introduce the uncertainty associated with these potential benefits into the LCC analysis, and instead continues to focus on the direct impacts of improvements to the building thermal envelope insulation and other energy efficiency measures.
In the June 2016 NOPR, DOE proposed window
As already discussed, DOE is proposing to rely on the HUD zones. Further, for the Tier 2 and untiered proposals, DOE has updated the proposed requirements based on the latest version of the IECC (the 2021 IECC), in accordance with the EISA mandate. See 42 U.S.C. 17071(b)(1) Accordingly, DOE proposes updated window
In the tiered proposed approach DOE is proposing as Tier 1 requirements a set of energy conservation requirements with a first-cost impact of approximately $750. The Tier 1 energy efficiency measures proposed in this document would provide energy savings exceeding that amount and are presented in section III.E.2.b. DOE has tentatively determined that a window
In the June 2016 NOPR, DOE did not propose including sections R405 and R406 from the IECC. Section R405 of the 2015 IECC establishes criteria for compliance using a simulated energy performance analysis, which involves calculating expected building energy use and comparing that value to the energy use of a standard reference building that complies with the minimum specifications of the 2015 IECC. Section R405 compliance is based on the total estimated annual energy usage across the whole building: Envelope, mechanical, and service water heating. Section R406 of the 2015 IECC establishes criteria for compliance using an energy rating index that contemplates the use of software to calculate the energy use of a building. DOE stated that while both sections are valid and technically feasible options, the options do not appear to offer additional flexibility in the design of a manufactured home relative to the performance requirements for the building thermal envelope.
Several commenters, however, stated that the proposed rule lacks a performance path that enables tradeoff among a wider range of energy features than the envelope alone, and recommended that DOE consider compliance options tailored for the manufactured housing industry, using section R405,
Sections R405 and R406 incorporate the energy use of the whole building, including mechanical equipment such as appliances. The performance requirements in the proposed energy conservation standards are specific to the building thermal envelope only. As discussed, the MH working group generally did not recommend provisions addressing minimum appliance efficiencies and specifically identified R405 and R406 as inapplicable to manufactured homes. (MH working group, No. 107 at p. 22) Consistent with the recommendations of the MH working group, the performance requirements in the proposed energy conservation standards are specific to the building thermal envelope only, and do not provide for tradeoffs with mechanical equipment such as appliances. DOE does capture a key element of sections R405 and R406 in its performance path to compliance. The IECC does not have a
DOE also received comments regarding the use of sections R405 and R406 of the IECC, citing the use of a full-fuel-cycle (FFC) calculation in those provisions as an advantage in terms of fully accounting for the impact of homes heated with different fuel types. (NPGA, No. 171 at p. 2; AGA & APGA, No. 172 at p. 1) An FFC measure of energy includes point-of-use (site) energy; the energy losses associated with generation, transmission, and distribution of electricity; and the energy consumed in extracting, processing, and transporting or distributing primary fuels.
NPGA commented that R405 includes an exception for the performance-based compliance approach, which allows the energy use to be based on source energy by using a source energy multiplier (one for electricity and another for fuels other than electricity). NPGA stated that this exception would be consistent with DOE's approach of incorporating energy consumption and emissions beyond the site in DOE's national impact analysis. In addition, NPGA commented that the adoption of R405 would provide a means for manufacturers of HUD homes to choose appliances based on their FFC efficiency ratings, and in turn, benefit from any reductions in FFC energy consumption and carbon emissions. (NPGA, No. 171 at p. 2) AGA and APGA encouraged DOE to reconsider incorporating sections R405 or R406 of the IECC, which utilizes the FFC analysis, for the national impact analysis. (AGA & APGA, No. 172 at p. 1)
As discussed previously, sections R405 and R406 would incorporate the energy use of the whole building, including mechanical equipment. Therefore, any FFC energy use resulting from sections R405 and R406 would also include energy use of the whole building. However, for the reasons discussed, this rulemaking only proposes provisions specific to the building thermal envelope. Therefore, DOE continues to not propose requirements associated with alternative performance from the 2015 and the 2021 IECC sections R405 and R406 in this SNOPR.
In the June 2016 NOPR, DOE proposed that exterior ceiling insulation must have uniform thickness or a uniform density. Several commenters stated that uniform thickness will generally not be possible, and uniform density would not allow high-density insulation in the truss heel area. (SBRA, Public Meeting Transcript, No. 148 at p. 52; NEEA, Public Meeting Transcript, No. 148 at p. 53; MHIM, No. 155 at p. 3; MHIAZ, No. 161 at p. 3; PMHA, No. 164 at p. 3; Cavco, No. 167 at p. 2; SBRA, No. 163 at p. 3; Skyline, No. 165 at p. 3; OMHA, No. 166 at p. 3; MHCC, No. 162 at p. 1; MHI, No. 182 at p. 3; MMHA, No. 170 at p. 3; Clayton Homes, No. 185 at p. 3; Palm Harbor Homes, No. 193 at p. 2; MHISC, No. 191 at p. 3; Commodore Corporation, No. 195 at p. 3)
DOE tentatively agrees with commenters that the exterior ceiling insulation proposal of uniform thickness or a uniform density would prohibit effective insulation techniques. While uniform thickness and density is sound insulation installation practice in most situations, given that the space between the roof and exterior ceiling is limited, particularly at the eaves, this uniformity may not be possible at the insulation levels proposed in the NOPR. In addition, there is no requirement in the 2015 or the 2021 IECC for uniform thickness or density. Therefore, DOE is not proposing in this SNOPR to require that exterior ceiling insulation must have uniform thickness or a uniform density.
DOE requests comment on the proposal to not require that exterior ceiling insulation must have uniform thickness or a uniform density.
In the June 2016 NOPR, DOE proposed a maximum ratio of 12 percent for glazed fenestration area to floor area for energy modeling purposes, consistent with the recommendation from the MH working group. DOE used this ratio as a typical housing characteristic in its analyses for determining the prescriptive requirements. DOE also required the same ratio in the proposed prescriptive requirements. DOE received several comments regarding the proposed prescriptive requirement for the maximum total area of glazed fenestration. Several commenters stated that there is no such total area of glazed fenestration requirement in the 2015 IECC, and therefore the requirement must be removed from DOE's prescriptive requirements. (Skyline, No. 165 at p. 3; MHCC, No. 162 at p. 1; MHI, No. 182 at p. 4; Clayton Homes, No. 185 at p. 3; RECA, No. 188 at p. 5; PMHA, No. 164 at p. 4; WDMA, No. 183 at p. 2)
DOE agrees that there are no similar glazing requirements in the 2015 or the 2021 IECC. DOE proposed a fenestration area to floor area limit in the June 2016 NOPR to preserve energy savings associated with the prescriptive requirements. While the performance requirements improved building thermal envelope insulation to offset larger fenestration to floor area percentages (fenestration typically has a much higher
DOE requests comment on the proposal not to limit the total area of glazed fenestration.
DOE received several comments regarding the use of the National Fenestration Rating Council (“NFRC”) labels for the fenestration
WDMA commented that fenestration
NFRC standards are widely used by industry in a variety of capacities. Many component manufacturers affix an NFRC label to their fenestration products, which includes the
Since DOE published the June 2016 NOPR, DOE has also published the November 2016 test procedure NOPR for manufactured housing, which proposed NFRC standards to determine fenestration
In addition, regarding NFRC labels, NEEA recommended that the final rule be explicit that the NFRC labels should remain on the windows until the house arrives at the site. (NEEA, No. 190 at p. 3) DOE's authority for this rulemaking is to establish energy conservation standards for manufactured housing as manufactured. (42 U.S.C. 17071(c)) The proposed energy conservation standards are specific only to the building thermal requirements for a manufactured home. However, DOE notes that the energy conservation standards, if finalized as proposed, would not prevent industry from pursuing this labeling practice suggested by NEEA.
DOE also received individual comments regarding the proposed building thermal envelope requirements in § 460.102. ACC FSC stated that exterior foam sheathing should be listed as an alternative to cavity-only insulation. (ACC FSC, No. 186 at p. 1) For this rule as proposed, DOE is not precluding the use of foam sheathing. As long as the installed insulation would meet the building thermal envelope requirements, as finalized, then it would be an acceptable option for use in a manufactured home.
ACC FSC also specifically requested that DOE add an “R13+5ci”
Consistent with the June 2016 NOPR, DOE proposes in § 460.103 of the regulatory text to require manufacturers to install insulation according to both the insulation manufacturer's installation instructions and the instructions set forth in proposed Table 460.103. DOE also proposes to require manufacturers to comply with the insulation manufacturer's installation instructions to ensure that the intended performance of the insulation is achieved. Further, consistent with the June 2016 NOPR, DOE proposes to add as part of a new Table 460.103 several component installation requirements, including general requirements, and requirements for access hatches, panels and doors, baffles, ceiling or attic, eave vents, narrow cavities, rim joists, shower or tub adjacent to exterior wall, and walls.
The following paragraphs discuss comments DOE received regarding the installation of insulations requirements proposed in the June 2016 NOPR, and any other corresponding proposed changes to the June 2016 NOPR requirements based on comments received, or updates to the 2021 IECC.
DOE received a comment on the June 2016 NOPR regarding the quality of insulation installation. Wisconsin Energy Conservation Corporation (WECC) commented that the overall quality of the insulation installation is important to avoid any degradation in insulation performance. (WECC, No. 150 at p. 3) Consistent with the 2015 and the 2021 IECC, DOE has maintained that insulation is to be installed according to the manufacturer's instructions to ensure the insulation achieves its rated
DOE received several comments on the June 2016 NOPR regarding the exterior floor insulation requirements. In general, commenters stated that the provision requiring exterior floor insulation be placed in contact with the subflooring material be removed because the requirement is not supported by building scientists; DOE has not demonstrated its value for manufactured home energy efficiency; assuming the bottom board acts as the air barrier (as seen in Table 460.104) obviates the need for the insulation to be in contact with the decking; the overall efficiency of the home decreases as exterior floor insulation between I-beams is usually placed beneath ducts (effectively moving the ducts inside the thermal envelope minimizing thermal losses); and it is difficult to do in a factory setting. (MHIM, No. 155 at p. 3; MHIAZ, No. 161 at p. 3; PMHA, No. 164 at p. 3; Cavco, No. 167 at p. 1; SBRA, No. 163 at p. 3; OMHA, No. 166 at p. 3; MHI, No. 182 at p. 3; MMHA, No. 170 at p. 3; Clayton Homes, No. 185 at p. 3; Palm Harbor Homes, No. 193 at p. 2; MHISC, No. 191 at p. 3; Commodore Corporation, No. 195 at p. 3; Skyline, No. 165 at p. 3; MHCC, No. 162 at p. 1).
During the public meeting, NEEA also stated that the permanent contact with the underside of the subfloor is virtually impossible in the center of a manufactured home. (NEEA, Public Meeting Transcript, No. 148 at p. 55) WECC commented that it is impractical to require insulation to completely contact the subfloor; completely filling the floor with insulation results in cooler floor temperatures leading to consumer complaints. WECC also questioned how the insulation under the ductwork will be supported and maintained, and to what extent the cross-braces have an effect on compaction of increased fiberglass. Overall, WECC stated that it sees many logistical problems with the extra levels of insulation. (WECC, No. 150 at p. 2)
The requirement that exterior floor insulation installed must maintain permanent contact with the underside of the subfloor is found in the 2015 IECC, which was the basis of the June 2016 NOPR requirement. However, a study provided by MHI and other stakeholders shows that this requirement is not necessary and can actually be harmful to homes.
DOE requests comment on removing the proposed requirement that exterior floor insulation installed must maintain permanent contact with the underside of the rough floor decking.
DOE also received several comments specifically on duct material and insulation. Cavco and Pfeffer stated that high-density duct board and flex duct is subject to severe rodent degradation over time, and so ductwork material should be considered in the rulemaking. (Cavco, Public Meeting Transcript, No. 148 at p. 67; Pfeiffer, No. 150 at p. 1) WECC and NCJC advocated using metal ductwork for the entire duct system. Metal ductwork is less susceptible to damage from animals, water, and moisture degradation. (WECC, No. 150 at p. 1; NCJC, No. 184 at p. 2) In addition, WECC commented that both the flex duct and duct boards that are commonly used are capable of being crushed or compressed, which reduces efficiency, as well as being hard to install and permanently repair. (WECC, No. 150 at p. 1)
EISA directs DOE to establish energy conservation standards for manufactured housing. While there may be an issue with the reliability of certain building materials, this issue only indirectly relates to the energy efficiency of manufactured homes and is beyond the scope of this rulemaking. Therefore, DOE is not assessing or proposing regulations relating to duct material.
Regarding duct insulation, NEEA recommended that
DOE's research indicates that HVAC ducts are generally located between the floor and the insulation and are therefore within the conditioned space. Cavco also commented that the common practice on entry-level products is to locate them in the floor. (Cavco, Public Meeting Transcript, No. 148 at p. 65) Therefore, because ducts are already located within the conditioned space, and would already be insulated because of the insulation required within the conditioned space, DOE is not proposing any additional insulation for ducts in this SNOPR.
NEEA and WSU Energy Program stated that a clearer statement on how insulation should contain no voids or compression as installed, is necessary. (NEEA, No. 190 at p. 2; WSU Energy Program, Public Meeting Transcript, No. 148 at p. 54, 57). Manufacturer installation instructions specify that insulation be installed per the insulation chart. Insulation charts, depending on the type of insulation, are required by the Federal Trade Commission (“FTC”) to show the
The 2021 IECC included several updates (relative to the 2015 IECC) in sections R402.2 through R402.3 and Table R402.4.1.1 for insulation installation criteria relevant to manufactured housing, which are discussed in Table III.13.
The 2021 IECC also includes building thermal envelope updates for mass walls, steel-framed buildings, basement walls, slab-on grade floors, crawl space walls, sunroom and heated garage insulation. DOE has not included these requirements in the proposed rule because they are not directly relevant to manufactured housing.
DOE requests comment on the proposed updates to the installation of insulation criteria as it applies to manufactured homes construction only.
DOE requests comments on whether there are any of the 2021 IECC updates relevant to manufactured housing that should be considered as part of this rulemaking. Specifically, DOE requests comment on whether the 2021 IECC updates for installation criteria for access hatches and doors, baffles and shafts are applicable to manufactured housing and should be considered in this rulemaking.
Consistent with the June 2016 NOPR, DOE proposes to add a new § 460.104 that would require manufacturers to seal manufactured homes against air leakage. Air leakage sealing limits air infiltration through the building thermal envelope, in turn reducing heating and cooling loads. Proposed § 460.104 would specify both general and specific requirements for sealing a manufactured home to prevent air leakage, all of which are based on Table R402.4.1.1 of the 2015 IECC with modifications based on recommendations from the MH working group (Term Sheet No. 107 at p. 5) and any further modifications based on DOE's review of the 2021 IECC (discussed further in this section). The MH working group also recommended prescriptive air leakage sealing requirements that are designed to achieve an overall air exchange rate of five air changes per hour (ACH) within a manufactured home. Term Sheet No. 107 at p. 5.
The proposed general requirements in § 460.104 would require that manufacturers properly seal all joints, seams, and penetrations in the building thermal envelope to establish a continuous air barrier, and use appropriate sealing materials to allow for differential expansion and contraction of dissimilar materials. The proposed specific requirements in Table 460.104 include air barrier criteria for
In developing its recommendations, the MH working group also identified concerns regarding the potential impacts of the air sealing requirements on the indoor air quality in manufactured homes, but understood indoor air quality to be outside the scope of the working group. (MH Working Group Meeting Transcript No. 115, pp. 95-96)
Prior to issuing the 2016 EA-RFI, DOE issued a request for information (RFI) regarding “data, studies, and other such materials that address the relationship between potential reductions in levels of natural air infiltration and both indoor air quality and occupant health for a manufactured home.” (June 25, 2013, 78 FR 37995). Specifically, DOE requested information on the relationship between potential reductions in levels of natural air infiltration and both indoor air quality and occupant health for a manufactured home. 78 FR 37995, 37996. With regard to indoor air quality, one commenter mentioned that reductions in air leakage can lead to increased formaldehyde concentrations and noted that increased mechanical ventilation also can increase moisture infiltration in humid climates, potentially leading to deleterious impacts such as mold growth. (MHARR, No. 36 at pp. 6-7) Several commenters suggested including measures approved by the MHCC at the time, including requirement for carbon monoxide alarms, vent termination separation from air intake and an option for individual manufacturers to adopt ASHRAE Standard 62.2. (Joint commenters,
In the June 2016 NOPR, DOE again requested information on the relationship between a reduction in levels of natural air infiltration (through sealing leaks in the building thermal envelope) and health and safety. 81 FR 39756, 39798. In response to the June 2016 NOPR, DOE did not receive any studies or data regarding the potential impact on health and safety from reduced levels of natural air infiltration in a manufactured home. However, DOE is considering measures to mitigate potential adverse impacts to indoor air quality that could arise from this SNOPR proposal. See section III.E.3.d of this document for further details.
The following paragraphs discuss comments DOE received regarding the building thermal envelope air leakage requirements proposed in the June 2016 NOPR, and any other corresponding proposed changes to the June 2016 NOPR requirements based on comments received, or updates to the 2021 IECC.
WSU Energy Program commented that ACH rate of five can be achieved through the prescriptive approaches recommended by the MH working group and that to ensure it is met, specific direction must be provided as to the areas required to be sealed and further that DOE needs to provide education and training to MH manufacturers. (WSU Energy Program, Public Meeting Transcript, No. 148 at p. 57)
As discussed, the June 2016 proposed envelope air leakage requirements were based on Table R402.4.1.1 of the 2015 IECC with modifications. The IECC applies generally to residential buildings, including site-built and modular housing, and is not specific to manufactured housing. As stated by WSU Energy Program in its comments, the building thermal envelope air leakage requirements (as proposed in § 460.104) are prescriptive requirements intended to achieve an envelope tightness of five ACH when depressurized to 50 pascals. Term Sheet, No. 107 at p. 5. Further, DOE reviewed the 2021 IECC and is proposing additional updates to the air barrier criteria, as discussed later in this section.
NEEA commented that a clearer definition of how a proper air barrier should be designed was needed in order to make construction requirements more specific, and to establish a single meaning without ambiguity. (NEEA, No. 190 at p. 2). NEEA did not provide a further explanation of how the proposed requirements for an air barrier were lacking or presented an opportunity for misapplication. As stated earlier in this section, DOE has listed many specific requirements for proper air barrier installation in Table 460.104. These requirements were based on Table R402.4.1.1 of the 2015 IECC and related recommendations from the MH working group. Further, DOE reviewed the 2021 IECC to make any additional updates to the air barrier criteria.
DOE also received a comment regarding installation requirements. VEIC stated that the rule should also have clear installation requirements for insulation, as well as for air and duct sealing. (VEIC, No. 187 at p. 2) DOE notes that its proposal would require that insulation and air leakage sealing must be done according to manufacturer's instructions, and the requirements set forth in proposed §§ 460.103 and 460.104, accordingly.
WDMA recommended that a provision regarding fenestration air leakage requirements be added. WDMA stated that provisions regarding fenestration air leakage are necessary for natural air infiltration limits required by the IECC to be met. WDMA cited section R402.4.3 of the 2015 IECC as an example. (WDMA, No. 183 at p. 3) As stated in the June 2016 NOPR, DOE did not include specifications for air leakage of fenestration consistent with the MH working group recommendation to reduce testing burden. In addition, as discussed in the following paragraphs, DOE is proposing air leakage requirements at the full building thermal envelope level, which will capture any air leakage associated with installed fenestration. Additionally, the proposed prescriptive building thermal envelope air leakage standards include requirements to seal the space between fenestration and framing. Therefore, DOE is not proposing fenestration specific quantitative air leakage requirements.
DOE also received several comments on the June 2016 NOPR regarding the building's air barrier. NEEA recommended that the standards be explicit that the multi-section marriage line air seal shall be installed at the factory with proper quality control rather than being installed in the field.
DOE also received a comment regarding the duct system register boots air barrier installation criteria. The June 2016 NOPR proposed that duct system register boots that penetrate the building thermal envelope or the air barrier must be sealed to the air barrier or the interior finish materials with caulk, foam, gasket, or other suitable material. WECC recommended that boot penetration be sealed to the subfloor. In WECC's experience with retrofit work, sealing to a finished vinyl flooring surface causes the flooring to float when the air handler is energized. (WECC, Public Meeting Transcript, No. 148 at p. 61) DOE reinvestigated this topic and acknowledges that the 2015 IECC requires that the duct register boots that penetrate building thermal envelope be sealed to the subfloor or drywall. The MH working group also voted to include this statement from the 2015 IECC in the term sheet. Term Sheet, No. 107 at p. 19. The 2018 and the 2021 IECC replaces the use of the term “drywall” with “wall covering or ceiling penetrated by the boot.” In this SNOPR, DOE is proposing to revise its earlier proposed regulatory text in Table 460.104 regarding register boots consistent with the language in the 2021 IECC to clarify that duct systems register boots may also be sealed to the subfloor. DOE is proposing the following air barrier criteria for duct system register boots in this SNOPR: “Duct system register boots that penetrate the building thermal envelope or the air barrier must be sealed to the subfloor, wall covering or ceiling penetrated by the boot, air barrier, or the interior finish materials with caulk, foam, gasket, or other suitable material.” This revision provides added flexibility, addresses WECC's concern, and follows the provisions of the 2021 IECC and the recommendations of the MH working group.
Further, DOE considered several other updates of the 2021 IECC in section R402.4 and Table R402.4.1.1 (relative to the 2015 IECC) for air barrier criteria relevant to manufactured housing—see Table III.14.
The 2021 IECC also includes air barrier criteria updates for basement crawl space and slab foundations, garage separation, and concealed sprinklers. DOE has not included these requirements in the proposed rule because they are not directly relevant to manufactured housing.
DOE requests comment on the proposed updates to the air barrier criteria as it applies to manufactured homes construction only. Further, DOE requests comment whether the SNOPR proposal continues to be designed to achieve air leakage sealing requirements of 5 ACH.
DOE requests comments on whether there are any of the 2021 IECC updates relevant to manufactured housing that should be considered as part of this rulemaking. Specifically, DOE requests comment on whether the 2021 IECC updates for air barrier criteria for recessed lighting, narrow cavities and plumbing are applicable to manufactured housing and should be considered in this rulemaking. If so, DOE requests comment on whether the requirements would alter the 5 ACH designation.
Subpart C proposes requirements that would be applicable to manufactured homes related to ducts; HVAC; service hot water systems; mechanical ventilation fan efficacy; and heating and cooling equipment sizing. The proposed subpart C requirements would be applicable to all manufactured homes under either the proposed rule or the tiered proposed rule (
DOE proposes to include in § 460.201(a) a requirement that manufactured homes equipped with a duct system be designed to limit total air leakage to less than or equal to 4 cubic feet per minute (“cfm”) per 100 square feet of conditioned floor area. DOE initially determines this proposal to be consistent with R403 of the 2021 IECC. In addition, DOE also proposes to require that building framing cavities not be used as ducts or plenums under § 460.201(a), consistent with the 2021 IECC and the recommendation of the MH working group (Term Sheet, No. 107 at p. 1). Building framing cavities are typically not tightly sealed and do not provide an adequate barrier to foreign bodies for air quality reasons. The use of building framing cavities as ducts and plenums is generally considered to be poor construction practice and is not a typical practice in the manufactured housing industry.
The following paragraphs discuss comments DOE received regarding the duct system requirements proposed in the June 2016 NOPR, and any other corresponding proposed changes to the June 2016 NOPR requirements based on comments received, or updates to the 2021 IECC.
The majority of the comments were recommending more specificity on the proposed duct sealing requirements. Several commenters suggested that the duct leakage requirements should only be applicable to homes that are equipped with a duct system, so as not to prohibit use of a ductless HVAC system. (MHIM, No. 155 at p. 3; MHIAZ, No. 161 at p. 3; PMHA, No. 164 at p. 4; Cavco, No. 167 at p. 2; SBRA, No. 163 at p. 4; OMHA, No. 166 at p. 3; MHI, No. 182 at p. 4; Clayton Homes, No. 185 at p. 3; Palm Harbor Homes, No. 193 at p. 2; MHISC, No. 191 at p. 3; SBRA,
In the June 2016 NOPR, DOE proposed to include in section 460.201(a) a requirement that manufacturers equip each manufactured home with a duct system designed to limit total air leakage to less than or equal to 4 cubic feet per minute (cfm) per 100 square feet of conditioned floor area. DOE agrees with the commenters that each manufactured home should not be required to have a duct system. An implicit requirement for including a duct system would prohibit usage of ductless HVAC systems, which could improve the energy performance of the home.
DOE received other comments regarding the design of duct systems. Skyline Corporation and MHCC questioned the wording of proposed § 460.201 Duct Systems—section (b), which stated, “building framing cavities must not be used as ducts or plenums.” They stated this is ambiguous as to whether it applies to return air plenums. They recommended that the section be revised to include “. . . as ducts or plenums when directly connected to mechanical systems.” (Skyline, No. 165 at p. 3; MHCC, No. 162 at p. 2) Clayton Homes stated that proposed § 460.201(a), the last sentence should be changed to read “Building framing cavities must not be used as supply ducts or plenums.” Clayton Homes commented that the addition of the word “supply” will enable cavities to be used for return air, as intended and allowed by the IECC. (Clayton Homes, No. 185 at p. 4) DOE agrees with commenters that return air plenums should not be included in the requirement because they are free-flowing and generally not ducted. Therefore, DOE is proposing to state the return air plenums are not included.
DOE also received a comment on higher performing duct systems. WSU Energy Program commented that some manufacturers are looking toward higher performing duct systems than the minimum standards, and there is no incentive for manufacturers to use these better performing systems (
NEEA recommended that the standard include specifics on air leakage testing on ducts to be performed, and that duct leakage be tested in the factory. (NEEA, No. 190 at p. 2) As discussed previously, DOE is not addressing a test procedure in this rulemaking.
DOE also reviewed the updates to section R403.3.4 of the 2021 IECC (relative to the 2015 IECC reviewed by the MH Working Group) as it relates to duct sealing and leakage. As previously discussed, DOE is not proposing any testing provisions at this time. As it relates to duct leakage requirements, DOE notes that section R403.3.6 of the 2021 IECC was updated to require that for ducts and air handlers that are located entirely within building thermal envelope, the total leakage would be less than or equal to 8 cfm per 100 square feet of conditioned floor area. For manufactured homes, DOE notes that it is not always the case that ducts and air handlers are located entirely within the building thermal envelope. Accordingly, for this rulemaking, DOE continues to propose the MH Working Group recommendation that total air leakage of duct systems is to be less than or equal to 4 cfm per 100 square feet of conditioned floor area under a post-construction test.
DOE requests comment on the proposal to require that total air leakage of duct systems for all manufactured homes is to be less than or equal to 4 cfm per 100 square feet of conditioned floor area.
Consistent with the June 2016 NOPR, DOE proposes including specifications for thermostats in § 460.202(a) of the regulatory test based on the IECC. Section R403.1 of the 2015 and 2021 IECC specifies that at least one thermostat shall be provided for each separate heating and cooling system. DOE also proposes specifications for programmable thermostats in § 460.202(b), based on section R403.1.1 of the 2015 and 2021 IECC. Section R403.1.1 of the 2015 and 2021 IECC also specifies that the thermostat controlling the primary heating or cooling system must be capable of controlling the heating and cooling system on a daily schedule to maintain different temperature set points at different times of the day. In addition, consistent with the June 2016 NOPR, DOE proposes to include in § 460.202(c) specifications for heat pumps having supplementary heat, based on section R403.1.2 of the 2015 and 2021 IECC.
The following paragraphs discuss comments DOE received regarding the thermostat and controls requirements proposed in the June 2016 NOPR, and any other corresponding proposed changes to the June 2016 NOPR requirements based on comments received, or updates to the 2021 IECC.
Regarding thermostat control, NEEA recommended that the final rule be explicit that the electric resistance lockout in central heat pump systems when the outdoor air temperature is greater than 40 °F. (NEEA, No. 190 at p. 3). While section R403.1.2 of the 2015 and the 2021 IECC provides requirements for the shutoff of heat pumps having supplementary electric-resistance heat under certain conditions, the 2015 and the 2021 IECC do not provide any temperature specifications for this shutoff. Therefore, DOE did not consider these requirements in the proposed energy conservation standards.
DOE also reviewed the updates to sections R403.1 of the 2021 IECC (relative to the 2015 IECC reviewed by the MH Working Group) as it relates to thermostats and controls. DOE notes that section R403.1 is no longer identified as “mandatory” in the 2021 IECC. DOE's understanding of this update is that no technical changes were intended, rather the removal of the label “mandatory” was only to make the IECC more understandable and easier to use because the label “mandatory” was not used consistently in the IECC. The 2021 IECC prescriptive compliance option application described in section R401.2.1 continues to require compliance with section R403.1, regardless of whether the label “mandatory” is included in that section. Therefore, DOE preliminarily concludes this update is not a substantive change. In addition, DOE observed that the programmable thermostat requirements were updated to allow for maintaining different temperature set point at different days of the week in addition to
DOE requests comment on DOE's interpretation of R403.1 and the proposed updates to the thermostat and controls requirements. In addition, DOE requests comments on whether there are any of the 2021 IECC updates relevant to manufactured housing that should be considered as part of this rulemaking.
Consistent with the June 2016 NOPR, DOE proposes to require in § 460.203(a) that manufacturers install service water heating systems according to the service water heating system manufacturer's installation instructions. As proposed, § 460.203 would apply to any service water heating system installed by a manufacturer. In addition, § 460.203 would require manufacturers to provide maintenance instructions for the service water heating system with the manufactured home. These requirements would promote the correct installation and maintenance of service water heating equipment and help to ensure that such equipment performs at its intended level of efficiency.
Further, DOE proposes that § 460.203(b) would require any automatic and manual controls, temperature sensors, and pumps associated with service water heating systems to be similarly accessible. This requirement would ensure that homeowners would have adequate control over service water heating equipment in order to achieve the intended level of efficiency contemplated in 10 CFR part 460. This proposal was consistent with the recommendation of the MH working group. Term Sheet, No. 107 at p. 1.
DOE also proposes specifications for heated water circulation systems in § 460.203(c) based on section R403.5.1.1 of the 2015 and 2021 IECC. The specifications proposed included: (1) Requiring heated water circulation systems be provided with a circulation pump, and that the system return pipe be a dedicated return pipe or cold water supply pipe; (2) prohibiting gravity and thermosyphon circulation systems; (3) requiring that controls for heated water circulation system pumps identify a demand for hot water within the home when starting the pump; and (4) requiring the controls to automatically turn off the pump when the water in the circulation loop is at the desired temperature and when there is no demand for hot water.
Finally, DOE also proposes that all hot water pipes outside conditioned space be required to be insulated to at least
The following paragraphs discuss comments DOE received regarding the service hot water requirements proposed in the June 2016 NOPR, and any other corresponding proposed changes to the June 2016 NOPR requirements based on comments received, or updates to the 2021 IECC.
NEEA recommended that pipe insulation be required on the hot water main branch and locations where the insulation is not in direct contact with the pipe or underfloor. (NEEA, No. 190 at p. 3) WSU Energy Program recommended that all hot water pipes be insulated. (WSU Energy Program, Public Meeting Transcript, No. 148 at p. 63) Taking the opposite viewpoint, Cavco commented that there is minimal to no energy savings from insulating pipes inside the conditioned space. (Cavco, Public Meeting Transcript, No. 148 at p. 66)
DOE's proposal of requiring a minimum
DOE also reviewed the updates to sections R403.5 of the 2021 IECC (relative to the 2015 IECC reviewed by the MH Working Group) as it relates to service hot water systems. DOE notes that section R403.5 is no longer identified as “mandatory” in the 2021 IECC. Similar to R403.1 of the 2021 IECC, DOE's understanding of this update is that no technical changes were intended, rather the removal of the label “mandatory” was only to make the IECC more understandable and easier to use because the label “mandatory” was not used consistently in the IECC. Therefore, DOE preliminarily concludes this update is not a substantive change. In addition, DOE observed the additional requirement that the controls for circulating hot water system shall limit the temperature of the water entering the cold water piping to not greater than 104 °F (40 °C). For this SNOPR, DOE proposes to continue to include service hot water systems requirements, as recommended by the MH working group. In addition, DOE understands that the temperature limitation is not directly applicable to manufactured homes and therefore DOE is not proposing to incorporate in this SNOPR.
DOE requests comment on DOE's interpretation of R403.5 and the proposed updates to the service hot water requirements. In addition, DOE requests comments on whether there are any of the 2021 IECC updates relevant to manufactured housing that should be considered as part of this rulemaking. Specifically, DOE requests comment on whether the circulating hot water system temperature limit should be included as a requirement.
DOE proposes mechanical ventilation fan efficacy requirements in proposed Table 460.204 based on Table R403.6.2 of the 2021 IECC, which provides requirements for mechanical ventilation system fan efficacy.
DOE received one comment on the June 2016 NOPR regarding mechanical fan efficacy. NEEA commented that the fan efficacy requirement is not as high as it could be, especially with bathroom utility fans, but did not provide a suggested efficacy level. (NEEA, Public Meeting Transcript, No. 148 at p. 64) The mechanical efficacy requirements being proposed in this SNOPR are based on the 2021 IECC. However, DOE emphasizes that it is proposing energy conservation standards established as minimum standards. The requirements as proposed would not prohibit manufacturers from employing more efficient measures.
DOE also reviewed the updates to section R403.6 of the 2021 IECC (relative to the 2015 IECC reviewed by the MH Working Group) as it relates to mechanical ventilation. The 2021 IECC includes new mandatory requirements for IECC climate zones 7 and 8, where dwelling units must be provided with a heat or energy recovery ventilation, and the system must be balanced with a minimum sensible heat recovery efficiency of 65 percent at 32 °F (0 °C) at a flow greater than or equal to the design flow. Further, Table R403.6.2 of 2021 IECC updates the mechanical fan efficacy requirements to include new minimum efficacy requirements for heat recovery ventilators (HRV) and energy recovery ventilators (ERV), and air
As discussed in section III.E.2.b, ERV and HRV fans can be applicable to manufactured housing. DOE notes that per the 2021 IECC, these requirements would only be applicable to homes in IECC climate zones 7 and 8, which would translate to manufactured homes in HUD zone 3 only, and about 8 percent shipments within the HUD zone. At a primary cost of $1,500 (based on the analysis performed in support of the BECP
Regarding the updates to minimum efficacy requirements, this SNOPR proposes to include all requirements except the efficacy requirements for air handlers that are integrated to tested and listed HVAC equipment. This SNOPR is not proposing requirements for appliances and equipment that are regulated pursuant to the statutory scheme in EPCA. Further, DOE proposes to remove the requirement that mechanical fans that are integral to HVAC equipment must be powered by an electronically commutated motor, in line with the 2021 IECC. DOE is also clarifying that the mechanical ventilation fan efficacy requirements would not apply to furnace fans, which are regulated under EPCA.
In this SNOPR, DOE is also considering energy efficiency measures to reduce uncontrolled air infiltration and air exchange associated with leaks in the air distribution ductwork for the central heating and cooling system, as well as measures that would reduce the energy consumption of mechanical ventilation equipment that is required in the HUD Code.
In addition, DOE is considering measures to mitigate potential adverse impacts to indoor air quality that could arise from the proposal. Considerations include signage for ventilation controls related to energy efficiency, informing the manufactured homeowner of the benefits to indoor air quality of using the system (reinforcing HUD encouragement to operate it whenever the home is occupied per 24 CFR 3280.103(b)(6)), as well as measures that would mitigate indoor air quality impacts per other current ventilation standards (
DOE requests comment on the proposal to include the 2021 IECC fan efficacy standard requirements. DOE requests comment on whether any of the fan efficacy requirements are not applicable to manufactured homes.
DOE requests comment on whether the HRV and ERV provisions under 2021 IECC for site-built homes are applicable to manufactured homes and whether they would be cost-effective. Specifically, DOE requests comment on costs for the HRV and ERV requirements as it applies to manufactured homes in all climate zones.
DOE requests comment on the above ventilation strategies, including (but not limited to) cost, performance, noise, and any other important attributes that DOE should consider, including those related to mitigation measures. While the alternate ventilation approaches are not integrated into the analysis presented as part of this proposal, DOE is giving serious consideration as to whether it should incorporate one or more of these options as part of its final rule based on any additional data and public comments it receives.
Consistent with the June 2016 NOPR, DOE proposes specifications for equipment sizing in § 460.205 of the regulatory text, based on section R403.7 of the 2015 and 2021 IECC, which sets forth specifications on the appropriate sizing of heating and cooling equipment within a manufactured home. This section of the 2015 and 2021 IECC requires the use of ACCA Manual S to select appropriately sized heating and cooling equipment based on building loads calculated using ACCA Manual J. The MH working group recommended the inclusion of this specification in the proposed rule. Term Sheet, No. 107 at p. 1.
DOE received several comments on the June 2016 NOPR regarding equipment sizing. ACCA commented that while HVAC manufacturers are producing highly efficient products that exceed DOE's regulatory demands, DOE does not require MH manufacturers to follow the minimum installation design standards that HVAC manufacturers recommend. ACCA asserted that as a result, HVAC systems are significantly less efficient and have shorter lifespans due to incorrect installation. (ACCA, No. 159 at p. 1) ACCA also commented that if DOE educated and incentivized homeowners to demand HVAC systems be installed to industry recommended standards by trained technicians, DOE could promote energy savings. (ACCA, No. 159 at p. 1) WSU Energy Program stated that DOE should consider including regulations regarding the installation of HVAC equipment. (WSU Energy Program, Public Meeting Transcript, No. 148 at p. 116)
DOE acknowledges that installation can affect the efficiency of HVAC
DOE did not receive any other comments regarding equipment sizing. In addition, section R403.7 of the 2021 IECC provides no updates to the equipment sizing and efficiency rating requirements.
DOE also received numerous other comments that were not specific to the preceding sections or that could not be placed in only one of the preceding sections. Advanced Energy commented that, given the negative health effects of carbon monoxide exposure, carbon monoxide detection should be added to the proposed rule, similar to section 915 of the 2015 International Building Code. (Advanced Energy, No. 189 at p. 1) EISA provides DOE with the authority to regulate energy conservation in manufactured housing. (42 U.S.C. 17071(a)) Because the installation of a carbon monoxide detector is a health and safety matter as opposed to an energy conservation matter, DOE has not proposed this requirement in the SNOPR.
ACC FSC stated that air-permeable insulation without the proper vapor retarder will cause condensation problems and that reducing air leakage and increasing insulation in homes will increase the possibility of condensation unless the proper materials are specified. (ACC FSC, No. 186 at p. 1) DOE is not proposing specifications for condensation control and vapor retarders because condensation control is not an energy conservation measure. The HUD Code, however, includes specifications for condensation control and installation of vapor retarders at 24 CFR 3280.504. DOE's proposed energy conservation standard would not prevent manufacturers from meeting the condensation and vapor retarder requirements established by HUD. This SNOPR, if made final, would not prevent or impede manufacturers from selecting construction materials, assembly methods, and designs that prevent the concerns raised by ACC FSC.
VEIC stated that high-tier and middle-tier efficiency standards for HVAC, domestic hot water, lighting, and appliances should be included as requirements for certification. (VEIC, No. 187 at p. 2) NEEA commented that DOE should include the following energy savings elements in future revisions to the energy conservation standard: Lighting, appliances, domestic hot water efficiency, and HVAC efficiency. (NEEA, No. 190 at p. 4) ACEEE noted that section R404.1 of the 2015 IECC requires that 75 percent of lighting be high-efficacy lamps. It commented that this yields significant additional cost-effective savings over the federal lighting standards. ACEEE urged DOE to include this provision in the standard. (ACEEE, No. 178 at p. 2)
DOE is not proposing energy conservation standards for HVAC, water heaters, lighting, and appliances. As discussed, the energy efficiency of those products is specifically governed by the comprehensive Appliance Standards program established under EPCA. (42 U.S.C. 6291-6317) However, manufacturers would not be prohibited from installing more efficient products and appliances, as long as the energy conservation standards are met. DOE also invites parties interested in energy conservation standards for appliances to comment on the rulemakings associated with those products.
VEIC stated that the proposed rule should include requirements for insulation and air barrier installation training, quality assurance oversight, commissioning, and field performance testing. (VEIC, No. 187 at p. 2) As discussed, EISA directs DOE to establish energy conservation standards for manufactured housing. While DOE is proposing regulations, DOE's Building America Solution Center
Modular Lifestyles and VEIC both offered comments regarding the benefits of zero energy homes. VEIC commented that an alternative to manufactured homes is to replace them with zero energy modular homes. (VEIC, No. 187 at p. 2). Modular Lifestyle gave information regarding their NetZero manufactured home, built in Ojai, California. (Modular Lifestyle, No. 141 at p. 2) DOE acknowledges that there are homes in the market that are already at the top end of energy efficiency. This SNOPR proposes minimum energy efficiency requirements applicable to all manufactured homes, and nothing in this SNOPR would prohibit manufacturers from producing models that exceed these requirements.
WECC stated that the manufactured home's crawl area temperature is warmer than outside ambient temperature during winter, and if the ambient air temperature is used for calculations, then the associated savings are overestimated. (WECC, No. 150 at p. 2) The manufactured homes modeled in the energy simulations in the analyses conducted for the June 2016 NOPR and in this SNOPR are modeled with a vented crawl space below the floors. Thus, the floors are not exposed to ambient air, but to air temperatures within the vented crawlspace (which fall between the ambient outdoor air temperature and the conditioned indoor air temperature); this prevents the energy savings from being overestimated.
DOE compared the energy conservation standards proposed in this SNOPR to the construction and safety standards for manufactured homes established by HUD to confirm that compliance with the proposed requirements would not prohibit a manufacturer from complying with the HUD Code.
Table III.15 lists the energy conservation standards and discusses their relationship to similar requirements contained in the HUD Code.
DOE conducts LCC and PBP analyses to evaluate the economic impacts on individual consumers of energy conservation standards for manufactured housing. The effect of new or amended energy conservation standards on individual consumers usually involves a reduction in operating cost and an increase in purchase cost. DOE uses the following two metrics to measure consumer impacts:
• The LCC is the total consumer expense of a manufactured home over the life of that home, consisting of total installed cost plus total operating costs. To compute the total operating costs, DOE discounts future operating costs to the time of purchase and sums them over the lifetime of the product (or another specified period).
• The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient manufactured home through lower operating costs.
For the June 2016 NOPR, DOE used the LCC and PBP analyses developed during the MH working group negotiations to inform the development of the proposed rule based on the economic impacts on individual purchasers of manufactured homes. The LCC of a manufactured home refers to the total homeowner expense over the life of the manufactured home (30 years), consisting of purchase expenses (
In the June 2016 NOPR, the LCC analysis demonstrated that increased purchase prices due to the proposed energy efficiency measures (“EEMs”) would be offset by the benefits manufactured home homeowners would experience via operating cost savings. DOE evaluated these projected impacts on individual manufactured home homeowners by analyzing the potential impacts to LCC, energy savings, and purchase price of manufactured homes under the proposed rule. For the purpose of the June 2016 NOPR economic analysis, DOE compared the purchase price and LCC for manufactured homes built in accordance with the proposed rule relative to a baseline manufactured home built in compliance with the minimum requirements of the HUD Code. Specifically, DOE performed energy simulations on manufactured homes located in 19 geographically diverse locations across the United States, accounting for five common heating fuel/system types and two typical industry sizes of manufactured homes (single-section and double-section manufactured homes).
In the June 2016 NOPR, DOE analyzed a 10-year LCC to represent the first ownership period and cost of the first homebuyer, and a 30-year LCC to represent the lifetime of the manufactured home and associated costs, which would represent the total costs and benefits for all occupants over the life of the manufactured home. The 30-year lifetime was selected as a typical length that EEMs last in the aggregate. The monetary value of these EEMs was considered to depreciate linearly over the 30-year lifetime. At the end of this 30-year lifetime, the EEMs would have no monetary value.
DOE received comments on the June 2016 NOPR discussing the time period that a consumer owns a manufactured home. COBA commented that in its experience, consumers generally stay in their manufactured home 2 to 3 years. (COBA, Public Meeting Transcript, No. 148 at p. 97) SBRA also stated that on average, the first homeowner of a manufactured home sells their home within 7 years of purchase and is unlikely to realize any incremental value from the EEMs. (SBRA, No. 163 at p. 2) MHI stated that manufactured homes change ownership within 7 to 10 years. (MHI, No. 182 at p. 6)
DOE appreciates the information provided by these organizations regarding the potential ownership period of manufactured homes. DOE researched the ownership period of manufactured home homeowners and found that a study by the Consumer Financial Protection Bureau (CFPB) indicated an average ownership period of 13 years. This study also found that based on 50,000 manufactured homesites in 161 communities in 2014, manufactured homes resided in their community for an average of 40 years, an indication of manufactured home lifetime.
Additionally, due to concerns about incremental cost for low-income families, DOE is proposing the Tier 1 standard for manufactured homes with manufacturer's retail list price of $55,000 or less. As discussed below, manufactured homes complying with the Tier 1 standard would have an average PBP of 3.7 and 3.5 years for single-section and multi-section homes, respectively, while achieving a positive cash flow in the first year of occupancy. Further discussion of these concerns is addressed in section IV.A.1.i.
MHARR commented that the PBP found in the analysis will be longer once the costs of compliance are included and passed onto the consumer (MHARR, No. 154 at p. 27). As discussed above, DOE is not addressing a compliance, certification, and enforcement program in this rulemaking, but may do so in the future. However, DOE will consider comments and information on compliance and enforcement matters provided by stakeholders, including costs.
DOE also received comments regarding the longer term LCC period (
EISA directs DOE to base the standards on the most recent version of the IECC considering, among other things, the total life-cycle construction and operating costs. (42 U.S.C. 17071(b)(1)) As such, DOE is considering the total life-cycle costs and operating costs of the standards proposed in this document.
As discussed previously, DOE determined that the average tenure of a manufactured homeowner is 13 years, and the lifetime of a home can average 40 years. However, DOE understands that there are constraints in the secondary market for manufactured
DOE received several comments regarding PBP results relating to the LCC and homeownership periods. In the June 2016 NOPR, DOE reported national average PBP values of 7.1 years for single-section homes and 6.9 for multi-section homes. MHARR stated that the projected consumer PBP is longer than consumers live in a particular manufactured home. (MHARR, No. 154 at p. 27) AGA and APGA commented that the PBP should be less than 5 years for the resident to truly gain a benefit. (AGA & APGA, No. 172 at p. 1)
As previously stated, a study by the CFPB indicated that the average ownership period of 13 years. DOE assumes a 10-year ownership period for the first owner of the manufactured home in its 10-year LCC analysis. Table IV.17, Table IV.10, and Table IV.11 provide the results for DOE's simple PBP analysis for the rule as proposed in this SNOPR, broken out by tiers and climate zone for single-section and multi-section homes. These resulting simple PBPs indicate that the first owner of a Tier 1 manufactured home would gain a net benefit and would realize positive net savings from the proposed energy standards. The simple PBP of a Tier 1 standard manufactured home is 3.7 years for single-section and 3.5 years for multi-section homes, and the simple PBP of a Tier 2 standard manufactured home is 10.9 years for single-section and 10.6 years for multi-section. Although the simple PBPs for Tier 2 homes exceed the 10-year ownership period for the first owner, they still fall within the 13-year average ownership period. In addition, DOE considered a sensitivity analysis for an alternative insulation requirement for Tier 2 homes, R-21, wherein the PBP is 8.5 for single-section and 8.9 years for multi-section homes.
In the June 2016 NOPR LCC analysis, DOE estimated an interest rate of 5 percent for consumers using real estate loans, 9 percent for consumers using chattel (personal property) loans, and 5 percent for consumers paying for the manufactured home outright with cash. These were conservative figures based on ranges provided by the MH working group. According to data provided by the MH working group, real estate loans typically have interest rates ranging from approximately 4.0 to 4.3 percent and chattel loans typically have interest rates ranging from 6.3 percent to 9.5 percent. EERE-2009-BT-BC-0021-0074. In the June 2016 NOPR analysis, DOE used a 5-percent real estate loan interest rate and a 9-percent chattel loan interest rate as a conservative estimate.
Regarding the different interest rates used for the LCC analysis, GWU commented that interest rates on chattel loans range from 7 percent to 13 percent and that DOE's use of 9 percent may be too low. (GWU, No. 175 at p. 5) DOE conducted research on interest rates for real estate and chattel loans to confirm the discount rates determined by the MH working group. DOE's research showed that chattel loans often range from 0.5 to 5 percent more than real estate loans according to a CFPB study released in September 2014.
In the June 2016 NOPR LCC analysis, DOE used a discount rate of 5 percent for consumers using real estate loans, 9 percent for consumers using chattel (personal property) loans, and 5 percent for consumers paying for the manufactured home outright with cash. The discount rate was set equal to the loan interest rate because this rate represents a primary “investment” available to a homeowner (that is, the homeowner can pay down the loan early, avoiding interest payments at the rate associated with the loan). Therefore, DOE discounted cash flows in the LCC analysis using a discount rate equal to this alternative investment rate (the loan interest rate).
Regarding the discount rates used in the June 2016 NOPR LCC analysis, ACEEE supported the June 2016 NOPR, stating that an LCC analysis using a discount rate similar to the rate low-income homeowners would pay for a mortgage should be reasonable. (ACEEE, No. 178 at p. 3) Alternatively, GWU stated it also conducted its own LCC analysis based on discount rates of 5, 9, and 13 percent. GWU's LCC results using these inputs found that consumers in certain cities are anticipated to bear net costs and summing the percentage of national shipments of each of these cities would result in 28.5 percent of all shipments of single-section manufactured homes and 35.1 percent of all shipments of multi-section manufactured homes anticipated to bear net costs. GWU stated that these studies indicate that DOE's proposed rule does not fit the statutory cost-effectiveness requirement given in EISA. (GWU, No. 175 at p. 6)
DOE appreciates ACEEE's comment supporting the June 2016 NOPR LCC discount rates. Regarding the LCC analysis conducted by GWU, DOE's understanding is that the results were based on a discount rate of 13 percent, which was the upper bound of the 7-percent to 13-percent range of chattel rates GWU presented and is higher than DOE's estimate of 9 percent. In addition, it is not clear what analysis period GWU relied on (DOE uses 10 and 30 years). However, the discount rate values used by GWU diminish the value of the benefits of reduced energy use relative to the values used in the June 2016 NOPR. As described previously, the June 2016 NOPR analysis was based on the real estate and chattel loan rates of 5 percent and 9 percent, respectively, as well as a 30-year analysis period reflecting the lifespan of a manufactured home. For the reasons already discussed, for this SNOPR, DOE continues to find these values more appropriate than those used by GWU. Using the discount rates equal to the corresponding interest rate, in this SNOPR, DOE's 30-year and 10-year analyses indicate that the national average results show positive LCC savings compared to the baseline.
In the June 2016 NOPR, DOE assumed a down payment of 20 percent for both real estate and chattel loans. DOE received several comments on the June 2016 NOPR suggesting alternatives to the down payment assumptions used in the NOPR.
MHI and COBA indicated that DOE may be overestimating the LCC savings by using a down payment assumption of 20 percent for chattel loans. According to MHI and COBA, chattel loan down payments are rarely 20 percent, and a more common range representative of the industry is 5-10 percent. (MHI, No. 182 at p. 6; COBA, Public Meeting Transcript, No. 148 at p. 92) After researching the matter, DOE tentatively agrees that a lower down payment assumption (relative to the June 2016 NOPR) is appropriate. MHI's “Trends and Information About the Manufactured Housing Industry 2016” indicates that down payments for all loans used for manufactured homes range from 10 to 20 percent.
Regarding the loan term for chattel loans, MHI recommended that DOE use an estimate of 10 to 15 years. (MHI, Public Meeting Transcript, No. 148 at p. 91; MHI, No. 182 at p. 7) In the June 2016 NOPR, DOE used a 15-year loan term for chattel loans for the LCC analysis based on suggestions from the MH working group. DOE's NOPR estimate of 15 years falls within the range recommended by MHI. No comments were received suggesting that the 15-year assumption was inappropriate. For the SNOPR, DOE maintains the chattel loan term of 15 years.
DOE received several comments on the June 2016 NOPR regarding the resale value of manufactured homes and how that may affect the LCC analysis. GWU commented that DOE's LCC analysis did not take into account the difficulty in recouping high upfront costs via resale. It stated that secondhand buyers have difficulty obtaining adequate financing for resold manufactured homes because lenders often charge higher interest rates on used manufactured homes. (GWU, No. 175 at p. 3) Lippert Components and MHI also expressed concern that it will be unlikely that first-time homeowners will be able to recapture the cost of EEMs in the event of a resale. (Lippert Components, No. 152 at p. 1; MHI, No. 182 at p. 6) Conversely, WSU Energy Program commented that resale values of manufactured homes with energy efficiency measures are often higher than those without these measures. (WSU Energy Program, Public Meeting Transcript, No. 148 at p. 93) Further, WSU Energy Program stated that this higher resale value of the manufactured home must be considered when calculating payback period. (WSU Energy Program, Public Meeting Transcript, No. 148 at p. 93)
For the SNOPR, as with the June 2016 NOPR, DOE conducted the LCC analysis based on the total homeowner expense over the life of the manufactured home and operating costs. A 30-year lifetime was selected as a typical length that energy efficiency measures last in a manufactured home. In addition, DOE also performed a 10-year LCC analysis, which represents the cost of ownership over the tenure of the first homeowner. Both analyses assume that the incremental cost of the DOE-compliant home depreciates on a linear basis over the 30-year lifetime. Therefore, DOE's analysis assumes that not all of the incremental cost of EEMs is recouped at resale.
Increases in resale value can offset upfront costs when considering life cycle costs over a period of time. However, the PBP metric is a “simple PBP” based on dividing the incremental increase in purchase cost by the average annual savings in operating costs that would result from the rule. Therefore, resale value is not included in the PBP calculation. DOE maintains this methodology in the SNOPR, as the resale value of the home does not have any direct input into the calculation of a simple PBP.
Property taxes vary widely within and among states. In the June 2016 NOPR, DOE assumed a property tax rate of 0.9 percent, which was agreed upon by the MH working group. DOE also separately determined the median tax rate and found that the 2013 American Housing (AHS) Survey for manufactured homes reported a $10 per $1,000 in home value, indicating a 1-percent tax rate.
DOE received one comment regarding the property tax rate used in the June 2016 NOPR. COBA commented that the property tax rate data used in the June 2016 NOPR analysis for the LCC was incorrect, without further elaborating on a better estimate. (COBA, No. 158 at p. 3) As no alternative estimates were offered, for this SNOPR, DOE continues to assume a property tax rate of 0.9 percent based on the MH working group recommendation and the AHS Survey.
In the June 2016 NOPR, DOE arrived at the incremental cost to the consumer by calculating the difference in the EEM costs of DOE-compliant and minimally compliant HUD homes. These incremental costs correspond to the purchase prices seen by the homeowner, and thus account for manufacturer and retail markups. DOE used incremental component costs (retail costs) provided and agreed to by the MH working group. ASRAC Cost Analysis Data, EERE-2009-BT-BC-0021-0091.
Regarding the incremental costs, MHARR stated that the cost figures used for the June 2016 NOPR analysis were obtained primarily from large manufacturers, and therefore the cost is understated for smaller manufacturers who do not benefit from large volume supply orders. MHARR conducted a study based on higher supply costs associated with small manufacturers and concluded that the price increase will be $4,600 and $5,825 above the HUD Code for single- and multi-section manufactured homes, respectively. (MHARR, No. 154 at p. 30; MHARR, No. 143 at p. 4)
Conversely, NEEA and VEIC stated that the incremental costs found and used in DOE's analysis may be overstating the cost increases. NEEA commented that the real-world incremental costs would be lower than DOE estimates. NEEA cited data (from the Pacific Northwest region) that shows current incremental purchase prices for ENERGY STAR homes (which NEEA stated are more stringent than the proposed rule) are between $2,000 and $3,000 more than a manufactured home minimally compliant with the HUD
In the June 2016 NOPR, DOE used incremental component costs provided and agreed to by the MH working group. MHI stated that these costs represent small, medium, and large manufacturers, commenting that for the cost analysis conducted by MHI and SBRA, small, medium, and large manufacturers were all consulted during the MH working group process. (MHI, Public Meeting Transcript, No. 148 at p. 85) DOE analyzed MHARR's incremental costs and identified a number of differences in the inputs between DOE's and MHARR's calculations. Specifically, DOE found that for certain components, such as exterior floor insulation, MHARR's incremental costs were based on baseline thermal requirements that were different than what was used by the MH Working Group. In another case, MHARR's calculations also included costs for exterior doors. However, DOE expects no incremental cost associated with doors because the insulation level (
Regarding incremental cost impacts on retailers, MHARR stated that smaller retailers will feel the full brunt of the increased costs. (MHARR, No. 143 at p. 4) DOE notes that retailers will experience increased costs. However, DOE's analysis anticipates that the full incremental cost of the EEMs necessary to comply with the SNOPR will be passed through to the consumer, bypassing the manufacturer and retailer. While DOE agrees retailers (both large and small) will see higher prices when purchasing manufactured homes from MH manufacturers, these same manufactured homes will be sold at a correspondingly higher price to the consumer.
For this SNOPR, DOE updated the total incremental costs for the tiered standards—
DOE received a comment regarding the overall reliability of the LCC analysis to capture potential savings related to the rulemaking. MHI stated that the LCC analysis is too uncertain to justify the projected upfront purchase price, and specifically stated that small errors in energy cost escalation rates can turn a long-term benefit into a long-term loss. (MHI, No. 182 at p. 6)
DOE understands that there may be uncertainties regarding the future prices of energy. In the June 2016 NOPR, the energy cost inputs used in the LCC analysis, including energy prices and their escalation rates, were based on the
Lastly, EISA requires that DOE establish energy conservation standards for manufactured housing with consideration of the cost-effectiveness as related to the purchase price and total life-cycle construction and operating costs generally. (42 U.S.C. 17071(b)(1)) As such, the LCC analysis in this SNOPR addresses this requirement by incorporating the total homeowner expense over the life of the manufactured home, consisting of purchase expenses (
Consistent with concerns raised in DOE's consultation with HUD, commenters raised concerns regarding the impact of energy conservation standards on the affordability of manufactured homes. DOE received comments from organizations that stated that manufactured homes are an important aspect of unsubsidized affordable housing across the country and that the average income of a manufactured homeowner is half the national average. Commenters indicated that any changes in the cost of manufactured homes will price some consumers out of homeownership and expressed concern that the proposed rule did not offer any assistance to offset the predicted cost increase and resulting decrease in manufactured home production. (Pleasant Valley Homes, No. 153 at p. 1; Skyline Corporation, No. 165 at p. 1; Clayton Homes, No. 185 at p. 2; MHIM, No. 155 at p. 1; NMMHA, No. 157 at p. 1; MHIA, No. 161 at p. 1; MHISC, No. 191 at p. 1; OMHA, No. 166 at p. 1; MMHA, No. 170 at p. 2; AMHA, No. 173 at p. 2; PMHA, No. 164 at p. 1; Commodore Corporation, No. 195 at p. 1) Cavco commented that the industry must maintain affordability in order to increase home ownership and stated that if the cost to produce a home increases, the costs will be passed onto the consumer. They also expressed concern that the manufactured housing market has extended too much credit to homeowners. (Cavco, Public Meeting Transcript, No. 148 at p. 87) SBRA suggested that DOE analyze how this standard affects home ownership affordability for consumers once the
DOE recognizes the role of manufactured homes in the U.S. housing market and their ability to provide affordable housing. As already discussed in section II.B.4 and in several other sections in this document, concern over the initial first-cost impacts that the June 2016 NOPR energy efficiency requirements would have on low-income buyers led DOE to contemplate cost-effective approaches that would also mitigate first-cost impacts for purchasers at the lower end of the manufactured home price range, and to examine and propose the tiered-approach presented in this SNOPR. In consideration of the first-cost impacts and cost-effectiveness for low-income purchasers, the tiered approach would subject those manufactured homes with a manufacturer's retail list price of $55,000 or less (
While both proposals presented in the SNOPR (
Relating to the general affordability of manufactured homes, SBRA recommended that DOE work with the industry in establishing an economic basis for energy efficiency standard development that would serve as the benchmark for setting requirements that improve home affordability. (SBRA, No. 163 at p. 2) DOE used the LCC and PBP analyses developed during the MH working group negotiations to inform the development of the proposed rule based on the economic impacts on individual purchasers of manufactured homes. As such, DOE has initially concluded that the national economic benefits outweigh the increased purchase price, indicating that under both proposals the applicable energy conservation standards would improve the economic status of consumers in most regions relative to the status quo.
DOE also received comments regarding affordability and the cost-effective provision of EISA. MHARR stated that the cost-effective provision of EISA must be applied to ensure that energy standards do not result in purchase price increases that would impair manufactured housing affordability, availability, or accessibility. (MHARR, No. 154 at p. 24) DOE performed an LCC analysis in this SNOPR that calculated the total homeowner expense over a period of 30 years, consisting of purchase expenses (
Regarding the availability of manufactured homes, for this SNOPR (and in the June 2016 NOPR), DOE addressed the reduction of shipments based on the projected increase in home upfront costs using a price elasticity of demand (price elasticity) calculation. Price elasticity is an economic concept that describes the change of the quantity demanded in response to a change in price. Price elasticity is typically represented as a ratio of the percentage change in quantity relative to a percentage change in price. Sections IV.C.1.a and IV.C.1.b provide more details on how DOE incorporated price elasticity in the shipments analysis and the magnitude of people who do not buy because they are price-sensitive.
DOE also received many comments from groups concerned with a potential 3-10 percent increase in purchase price of manufactured home as a result of the proposed standards. Because of the affordable housing crisis in the U.S., they stated that the final rule should avoid any increases in cost for consumers by providing programs for consumers to obtain financing or aid in purchasing their homes. These commenters urged DOE to improve energy efficiency while preserving affordability and to work with lenders, federal regulators, and HUD to mitigate the upfront costs of these regulations before the rule is finalized. (Pleasant Valley Homes, No. 153 at p. 1; Skyline Corporation, No. 165 at p. 1; Clayton Homes, No. 185 at p. 2; MHIM, No. 155 at p. 2; NMMHA, No. 157 at p. 2; MHIA, No. 161 at p. 2; MHISC, No. 191 at p. 1; OMHA, No. 166 at p. 1; MMHA, No. 10 at p. 2; AMHA, No. 173 at p. 2; PMHA, No. 164 at p. 2; Form Letter, No. 192 at p. 1; COBA, No. 158 at p. 5; Commodore Corporation, No. 195 at p. 2)
Specifically, several commenters recommended that DOE also consult with the CFPB and Federal Housing Finance Agency (“FHFA”) to ensure that there is enough flexibility in qualified mortgage regulations to permit an increase in debt-to-income ratios when paired with reductions in energy costs. (Better Homes, No. 168 at p. 1, Next Step, No. 174 at p. 2, MHI, No. 182 at p. 7) Next Step also commented that DOE should collaborate with HUD, FHFA, and the U. S. Department of Agriculture (“USDA”) to ensure flexibility in underwriting guidelines. (Next Step, No. 174 p. 2) WECC recommended the use of low-income weatherization funds, Property Assessed Clean Energy (PACE) financing, carbon offsets, and Environmental Protection
DOE appreciates these comments and understands that affordability and cost-effectiveness for low-income purchasers is an important issue when discussing manufactured housing. However, DOE's authority for this rulemaking is limited to energy conservation standards for manufactured housing. While DOE has considered the cost-effectiveness and affordability concerns described throughout this document, matters related to financing, tax credits, or other financial incentives or assistance for manufactured housing are outside the scope of this rulemaking, which is being conducted only to establish an energy conservation standard for manufactured housing. As already discussed, to help mitigate the potential impacts of a price increase, DOE is proposing a tiered proposal in this SNOPR that would establish a pricing tier to address those manufactured homes likely to be purchased by more price-sensitive consumers, and by limiting the impact to the first-cost for Tier 1 manufactured homes. The Tier 1 energy conservation standards, as proposed, are estimated to result in a 0.7-1.4 percent increase in first cost, depending on climate zone. These incremental costs would be offset by the energy savings provided from the energy efficiency measures and the incremental increase in upfront costs and monthly loan payments is recouped in less than one year. Furthermore, the PBP associated with the Tier 1 standard is only 3.7 years for single-section homes and 3.5 years for multi-section homes.
Along with consumer financing, Next Step and Lippert Components both recommended the implementation of consumer education for potential homeowners, to properly inform them of the benefits and paybacks of more efficient homes. (Next Step, No. 174 at p. 3; Lippert Components, No. 152 at p. 1) Next Step also commented that it currently has a system called Manufactured Housing Done Right, which connects comprehensive homebuyer education with responsible financing so potential buyers can purchase ENERGY STAR compliant, factory-built homes. (Next Step, No. 174 at p. 1) DOE agrees that consumer education is important aspect to ensuring the effectiveness of any standards that may be adopted. To this end, DOE has described this proposed regulation in detail in this document and can respond to questions from the public. While a consumer education program is not an element of the statutory mandate of EISA, DOE provides a number of resources to educate homeowners on the energy efficiency, including those applicable to manufactured housing.
MHI also commented that DOE must engage with HUD to revisit the economic assumptions and revise consumer impact estimates. MHI stated that any new regulation must avoid reducing the availability of affordable homeownership options. (MHI, No. 182 at p. 1) GWU stated that DOE should revisit the effect of the proposed standards on the Federal Government's goal to increase the availability of affordable housing. (GWU, No. 175 at p. 12) In this SNOPR, DOE has reviewed the economic assumptions relied upon in the June 2016 NOPR and made changes where appropriate. As explained, DOE is proposing a tiered approach in this SNOPR in response to concerns raised regarding affordability and cost-effectiveness. In addition, DOE changed the down payment assumptions from 20 percent to 10 percent for chattel loans (see section IV.A.1.d). Furthermore, DOE made updates to energy costs, energy escalation rates, and inflation rates based on the updates to
DOE received comments on the June 2016 NOPR indicating concern that the proposed rule's incremental cost relative to the existing HUD Code would eliminate the ability of some low-income consumers to obtain the financing necessary to purchase a new home, resulting in consumers being priced out of the manufactured housing market. (Advocacy, No. 177 at p. 3; GWU, No. 175 at p. 8; Form Letter, No. 192 at p. 1; Pleasant Valley Homes, No. 153 at p. 1; Skyline Corporation, No. 165 at p. 1; Clayton Homes, No. 185 at p. 2; MHIM, No. 155 at p. 1; NMMHA, No. 157 at p. 1; MHIA, No. 161 at p. 1; MHISC, No. 191 at p. 1; OMHA, No. 166 at p. 1; MMHA, No. 170 at p. 2; AMHA, No. 173 at p. 2; PMHA, No. 164 at p. 1; MHI, No. 182 at p. 1, SBRA, No. 163 at p. 2; MHARR, No. 143 at p. 4) Specifically, MHARR cited a 2014 National Association of Home Builders (“NAHB”) study that MHARR asserted indicates that more than 1 million households would be priced out of the market for a single-unit manufactured home and over an additional one million households would be priced out of the multi-section market as a result of DOE's proposed standards. (MHARR, No. 154 at p. 25) Similarly, AMHA stated a recent NAHB study indicated each $1,000 increase over the median-home price results in 200,000 prospective households being excluded from the market. (AMHA, No. 173 at p. 1)
As discussed in section IV.A.1.i, DOE is proposing a tiered approach for which energy conservation standards for manufactured home with a manufacturer's retail list price of $55,000 or less would be established, in part, on a defined upfront manufacturer's retail list price increase (
DOE reviewed the 2014 NAHB study referenced by MHARR and AMHA and found the values cited by MHARR and AMHA from that study are not representative of the manufactured housing market's prospective buyers. The NAHB study estimates the reduction in buyers assuming all American households intend to buy a home. The NAHB study stated that an increase of $1,000 would exclude approximately 350,000 households from purchasing a single-section home, and the same $1,000 would exclude 315,000 households from purchasing a multi-section home. MHARR extrapolated that the incremental costs of the standards would exclude more than 1 million households from each of the single- and multi-unit markets.
Rather than analyzing all American households, DOE's estimate in this SNOPR calculates the number of households no longer able to purchase a manufactured home from the pool of households planning to purchase a manufactured home (which is much smaller than the total number of American households). As a result of
Accordingly, DOE estimates the SNOPR would result in a loss in demand and availability of about 53,329 homes (single section and multi-section combined) for the tiered standard using a price elasticity of demand of −0.48 for the analysis period (2023-2052). Out of the 53,329 homes in the tiered standard, the majority of the reduction is in Tier 2 (93 percent) vs. Tier 1 (7 percent). Within Tier 1, DOE estimates a 0.52 percent reduction (essentially no reduction) in availability due to Tier 1 standards for low income purchasers. Given that low-income consumers generally purchase lower priced manufactured homes, DOE concludes that low-income consumers would not be priced out by the Tier 1 standards proposed in this SNOPR.
As a sensitivity, DOE also considered a price elasticity of demand of −2.4 instead of −0.48. Further discussion on this sensitivity is provided in Section 10.4 of Chapter 10 of the TSD. Table IV.1 provides a summary of the change in shipments from baseline for the tiered standards for a price elasticity of −0.48 and −2.4.
In the study published in the Journal of Housing Economics by Marshall and Marsh, the authors conclude that national and local programs that cause small price increases in manufactured housing units (
DOE requests comment on the price elasticity values used in DOE's analysis and in the sensitivity analysis as well as any data or research available with respect to the demand sensitivity in the manufactured housing market.
DOE also received comments stating that it was necessary to capture the costs and economic impact associated with the exclusion of some consumers from the manufactured housing market as a result of this standard. (MHARR, Public Meeting Transcript, No. 148 at p. 80; MHARR, No. 154 at p. 29) COBA commented that if a consumer is priced out of the market for manufactured homes, there are no energy savings that the consumer can encounter. (COBA, Public Meeting Transcript, No. 148 at p. 82) Lippert Components stated that it doubted that the benefits of the increases in energy efficiency will outweigh the negative impacts caused by the elimination of choice and reduction of affordability of manufactured homes due to the proposed standards. (Lippert Components, No. 152 at p. 1)
The cost savings estimates for the proposals in this SNOPR are based on manufactured housing sales in response to the incremental increase in housing costs. A discussion of the projected future shipments is provided at section III.C.1.a of this docment.
DOE also received comments regarding the issue of consumers being priced out of the manufactured housing market within specific regions. GWU suggested that DOE specifically consider the distributive economic impact on climate zones 1 and 2, as they account for roughly 40 percent of all manufactured housing shipments. GWU stated that under the standard as proposed in the June 2016 NOPR, climate zones 1 and 2 will bear higher costs from the increased standards, which is especially problematic as these zones have higher poverty rates. GWU recommended that DOE analyze the impact of the proposed rule on low-income consumers in high-poverty regions. (GWU, No. 175 at p. 8)
The energy standards in the proposals presented in this SNOPR would provide benefits in energy savings to the consumer (including those in climate zones 1 and 2) which, over the span of the PBP, would offset the increase in purchase price. Under the tiered proposal, manufactured homes that would be subject to the Tier 1 standards would have a PBP less than 10 years for all climate zones and recoup any additional upfront and monthly payments in less than one year.
DOE also received numerous other comments that were not specific to the above sections or could not be placed in only one of the above sections. WECC stated that consumers' trust and confidence must be secured if these higher costs are to be received favorably.
This section provides the tentative results for the projected economic impacts on individuals, including the LCC and PBP. In this SNOPR, DOE has included two options: A two-tiered set of standards and a single untiered standard, as described in section III.E.2.b. DOE also updated all inputs to the LCC and PBP based on the updated AEO 2020. This includes updates to the inflation rates, energy prices, and energy pricing growth rates. DOE adjusted the down payment percentage for personal property (chattel) loans to 10 percent based on comments received on the June 2016 NOPR and maintained a 20 percent down payment for real estate loans. Lastly, the analyses include updates to the fuel type distributions based on 2019 MHI shipments.
Further, as discussed in section I.A, DOE also used different loan parameters for the analysis for the untiered standard and the alternate tiered standard. This is because the Tier 1 and Tier 2 standards each would apply to a portion of all manufactured homes, whereas the untiered standard would apply to all manufactured homes. Specifically, the Tier 1 standard would apply to manufactured homes with a manufacturer's retail list price of $55,000 or less, and would be applicable to price-sensitive, low-income purchasers. Therefore, DOE considered only personal property loans for the Tier 1 standard analysis. For the Tier 2 standard, DOE recalculated the loan percentages such that the sales-weighted Tier 1 and Tier 2 standard loan percentages would equate to the overall loan percentages for the untiered standard. See Table IV.2 for details on the loan parameter percentages used for the analyses.
The LCC analysis allowed DOE to analyze the effects of the energy conservation standard on both the individual consumer, as well as the aggregate benefits at the national level. Table IV.3, Table IV.4, and Table IV.5 provide the average purchase price increases to manufactured homes associated with the HUD climate zones, under the proposals. These costs are based on estimates for the increased costs associated with more energy efficient components, as provided by the MH working group. ASRAC Cost Analysis Data, EERE-2009-BT-BC-0021-0091. These costs are discussed in further detail in chapter 5 and chapter 9 of the SNOPR TSD.
Figure IV.1, Figure IV.2, and Figure IV.3 illustrate the average annual energy cost savings for space heating and air conditioning for the first year of occupation by geographic location under the proposed tiered approach based on the estimated fuel costs provided in chapter 8 of the SNOPR TSD.
Table IV.6 through Table IV.8 and Figure IV.4 through Figure IV.6 illustrate the average 30-year LCC savings by geographic location (averaged across the five different heating fuel/system types) associated with the proposals for both single-section and multi-section manufactured homes. As discussed in detail in chapter 8 of the SNOPR TSD, the results presented account for LCC savings and impacts over a 30-year period of analysis, including energy cost savings and chattel loans or conventional mortgage payment increases discounted to a present value using the discount rates discussed in chapter 4 of the SNOPR TSD. These tentative results also are based on the costs associated with the proposed energy conservation improvements, as discussed in chapter 5 of the SNOPR TSD.
As shown, the national average savings for the untiered standard and the tiered standards (
DOE requests comment on the cost-effectiveness and feasibility of requiring R-20+5 for the exterior wall insulation for climate zone 2 and 3 Tier 2/Untiered manufactured homes. DOE also requests comment on the sensitivity analysis for R-21 that would result in positive LCC savings for all cities.
The estimated LCC impacts under Figure IV.4, Figure IV.5, and Figure IV.6 vary by location for three primary reasons. First, each geographic location analyzed is situated in one of three climate zones and therefore would be subject to different energy conservation requirements. Second, geographic locations within the same climate zone would experience different levels of energy savings. Finally, the level of energy cost savings depends on the type of heating system installed and fuel type used in a manufactured home. As discussed in chapter 8 of the SNOPR TSD, DOE has accounted for regional differences in heating systems and fuel types commonly installed in manufactured housing.
Table IV.14 provides the national average LCC savings and annual energy cost savings associated with the proposals in the SNOPR for space heating and air conditioning (and percent reduction in space heating and cooling costs), both of which are measured against a baseline manufactured home constructed in accordance with the HUD Code. As discussed in further detail in chapter 9 of the SNOPR TSD, each geographic location has been determined to result in LCC savings and energy savings, on average.
Table IV.15 through Table IV.17 and Figure IV.7 through Figure IV.9 illustrate the nationwide average simple payback period (purchase price increase divided by first year energy cost savings) under the SNOPR. The estimated simple payback periods vary by geographic location based on the different climate zone requirements for manufactured housing, geographic climatic differences within climate zones, type of heating system installed, and fuel type used in a manufactured home.
DOE performed a manufacturer impact analysis (“MIA”) to estimate the potential financial impact of energy conservation standards on manufacturers of manufactured homes. The MIA relied on the Government Regulatory Impact Model (“GRIM”), an industry cash-flow model used to estimate changes in industry value as a result of energy conservation standards. The key GRIM inputs are: Industry financial metrics, manufacturer production cost estimates, shipments forecasts, conversion costs, and manufacturer markups. The primary output of the GRIM is industry net present value (“INPV”), which is the sum of industry annual cash flows over the analysis period (2021-2052), discounted using the industry average discount rate. The GRIM has a slightly different analysis period than the NIA and LCC since it accounts for the conversion period, the time between the announcement of the standard and the compliance date of the standard, because manufacturers may need to make upfront investments to bring their manufactured homes into compliance ahead of the standard going into effect. The GRIM estimates the impacts of more-stringent energy conservation standards on a given industry by comparing changes in INPV between the no-standards case and the standards cases. The GRIM estimates a range of possible impacts under different manufacturer markup scenarios to capture the uncertainty relating to manufacturer pricing strategy following new standards. Additional detail on the GRIM can be found in chapter 12 of the SNOPR TSD.
DOE analyzed the upfront investments manufacturers would need to make to bring their products into compliance with the proposed energy conservation standards. These upfront investments include product conversion costs and capital conversion costs. Product conversion costs are one-time expenses in research, development, engineering time, and other costs necessary to make product designs comply with energy conservation standards. Capital conversion costs are one-time investments in property, plant, and equipment to adapt or change existing production lines to fabricate and assemble new product designs that comply with the energy conservation standards.
DOE received comments regarding the conversion costs used for the cost-benefit analysis. MHARR commented that the June 2016 NOPR cost-benefit analysis failed to include costs for testing, certification, inspections, and other compliance related activities, including new testing that is not currently included in the HUD Code. It stated that there are enforcement costs as well as ongoing regulatory compliance costs. MHARR expressed concern that these costs were not included in calculating the manufacturer impact as well as incremental cost increases since compliance costs will inevitably be passed onto the consumer (MHARR, No. 154 at p. 27; MHARR, No. 143 at p. 4). MHCC also commented that the cost analysis does not include compliance costs and stated that the enforcement of the proposed rule significantly affects the costs, planning, and implementation (MHCC, No. 162 at p. 2).
As stated in the November 2016 test procedure NOPR, for the
RECA, Next Step Network, and Modular Lifestyles commented that many manufacturers produce higher efficiency homes that already meet the proposed standards, and thus the impacts for those manufacturers will be significantly reduced. (RECA, No. 188 at p. 2; Next Step, No. 174 at p. 1; Modular Lifestyles, No. 141 at p. 2).
DOE recognizes that some manufacturers already produce higher efficiency homes that meet the proposed standard level. DOE received data on the number of ENERGY STAR manufactured homes but lacked information on the number of manufactured homes that already meet or exceed the standard levels proposed in this SNOPR. Therefore, DOE conservatively assumed that all shipments are minimally compliant with the current HUD level and all models for which standards would be applicable would need design updates as a result of this proposed rule for the purposes of the MIA analysis. This prevents underestimation of negative impacts on manufacturers. As such, DOE's conversion costs are the same for the tiered and untiered proposals, as DOE models the maximum potential conversion costs.
In contrast, the NIA assumes conservatively that all ENERGY STAR manufactured homes would not provide additional national benefits as a result of this proposed rule, if made final. More information about the shipments analysis used for the NIA can be found in section IV.C.1.a of this document.
DOE estimated conversion costs to be $52,000 per manufacturer. This figure included approximately $49,000 per manufacturer for product conversion
DOE requests comment on the inputs to the conversion cost estimates.
DOE analyzed the effect the proposed standards would have on manufacturer production costs. DOE derived these costs from purchase price information and the markup factor, which is the product of the manufacturer markup, the retail markup, and sales tax. DOE used census data to obtain HUD minimum purchase price data by state for single-section and multi-section manufactured homes in 2019.
DOE added incremental purchase prices to the HUD minimum purchase prices to calculate the purchase price for manufactured homes built in compliance with the proposed standard levels. The incremental purchase prices were negotiated during MH working group meetings and discussed further in section IV.A.1.g.
To calculate MPCs from purchase prices for homes at the baseline level and at the proposed standard levels, DOE divided the purchase prices by the markup factor. The markup factor is the product of the manufacturer markup, retail markup and the sales tax factor. In the June 2016 NOPR, DOE used public sources, including company SEC 10-K filings
MHCC recommended that an industry projected cost markup factor of 2.30 be used, as opposed to the factor of 1.67 used by DOE in the June 2016 NOPR analysis (MHCC, No. 162 at p. 2). MHI expressed concern that the DOE markup factor of 1.67 is too low. It stated that HUD typically uses a markup factor of 2.30 and MHI's own study found a cost markup factor of 2.23. By using a lower markup factor, it expressed concern that DOE may be underestimating the impact of price increases passed onto the consumer (MHI, No. 182 at p. 5).
DOE investigated the research quoted by MHI and MHCC regarding the markup factor and found a supporting paper developed by Pacific Northwest National Laboratory (“PNNL”) on behalf of National Fire Protection Association, MHCC, and HUD that referenced their methodology for the distribution chain markups. The research paper indicates that DOE's estimated retail markup in the June 2016 NOPR of 1.30 is representative of the MH industry, whereas DOE's estimated manufacturer markup of 1.25 is too low.
COBA commented that the retail markup varies greatly depending on the nature of the distribution process. Independent MH retailers, who sell on a deal-by-deal and commission-only basis, will seek to maximize profitability. COBA said Land-Lease-Lifestyle Communities (LLL) Community operators will minimize the retail markup for HUD Code homes to get homeowners or site lessees to sign a rental agreement (COBA, No. 158 at p. 5). COBA stated that this change in the manufactured home distribution system leads to several different scenarios for markup. (COBA, Public Meeting Transcript, No. 148 at p. 124). DOE acknowledges that retail markups can vary based on the distribution channel. However, based on public information and comments received from interested parties, a retail markup of 1.30 is the industry average.
COBA also commented on the topic of sales tax assumptions used in DOE's MIA. COBA stated that sales tax is a state matter that varies depending on whether a manufactured home is new or used (COBA, No. 158 at p. 5). DOE agrees that sales taxes vary by state. To account for variations in sales taxes, DOE took the shipment-weighted average sales tax by state to estimate a national average sales tax of three percent. The MH working group reviewed the sales tax assumptions used in the DOE's analysis during the negotiated consensus process. The MH working group agreed to a national average sales tax of three percent for the purposes of DOE's analyses. This is consistent across the June 2016 NOPR and the SNOPR analyses. Additional information can be found in section 8.2.6 of the SNOPR TSD.
DOE modeled two standard case manufacturer markup scenarios that reflect changes in the manufacturer's ability to pass on their upfront investments and increases in production costs to the consumer. The manufacturer markup scenarios represent the uncertainty regarding prices and profitability for manufactured home manufacturers following the implementation of the rule. DOE modeled a high and a low scenario for manufacturers' ability to pass on their increased costs to the consumer: (1) A preservation of gross margin percentage markup scenario; and (2) a preservation of operating profit markup scenario. These scenarios lead to different manufacturer markup values that result in varying revenue and cash flow impacts to the manufacturer when applied to the inputted manufacturer production costs.
Under the preservation of gross margin scenario, manufacturers maintain their current average markup of 1.72 even as production costs increase. Manufacturers are able to maintain the same amount of profit as a percentage of revenues, suggesting that they are able to recover conversion costs and pass the costs of compliance to their consumers. DOE considers this scenario the upper bound to industry profitability.
In the preservation of per-unit operating profit scenario, manufacturer markups are set so that the per-unit operating profit in the standards case equals the per-unit operating profit in the no-standards case one year after the compliance date of the new energy conservation standard. Under this scenario, as the costs of production increase under a standards case, manufacturers are required to reduce their markups. The implicit assumption behind this markup scenario is that the
DOE calculated an industry average discount rate of 9.2 percent based on SEC filings for public manufacturers of manufactured homes. The INPV is the sum of the discounted cash flows over the analysis period, which begins in 2021 and ends in 2052, using the industry average discount rate. DOE compares the INPV of the no-standards case to that of the standard level. The difference between INPV in the no-standards case and INPV in the standards case is an estimate of the economic impacts on the industry.
For single-section units, the no-standards case INPV is $4.87 billion. The tiered proposal standard level could result in a change of industry value ranging from −1.5 percent to 2.1 percent, or a change of −$0.07 billion to $0.10 billion, for single-section units. For multi-section units, the no-standards case INPV is $11.36 billion. The tiered proposal standard level could result in a change of industry value ranging from −1.8 percent to 1.9 percent, or a change of −$0.20 billion to $0.22 billion. For the entire industry, the no-standards case INPV is $16.23 billion. The tiered proposal standard level could result in a change in INPV of −1.7 percent to 2.0 percent, or a change of −$0.28 billion to $0.32 billion. Industry conversion costs total $0.0018 billion.
For single-section units, the no-standards case INPV is $4.87 billion. The untiered proposal's standard level could result in a change of industry value ranging from −2.7 percent to 3.0 percent, or a change of −$0.13 billion to $0.15 billion for single-section units. For multi-section units, the no-standards case INPV is $11.36 billion. The untiered proposal's standard level could result in a change of industry value ranging from −1.8 percent to 2.2 percent, or a change of −$0.21 billion to $0.25 billion. For the entire industry, the no-standards case INPV is $16.23 billion. The untiered proposal's standard level could result in a change in INPV of −2.1 percent to 2.4 percent, or a change of −$0.34 billion to $0.39 billion. Industry conversion costs total $0.0018 billion.
DOE also received comments regarding competition within the manufactured housing industry. GWU stated that DOE should pay particular attention to the prospective effects of the proposed rule on competition within the MH market. It commented that it was unable to find any analyses by the DOJ on market competition regarding the rule (GWU, No. 175 at p. 11). MHARR also asserted that the June 2016 NOPR would have anti-competitive effects and result in highly negative impacts on the industry's small manufacturers. MHARR stated that the June 2016 NOPR would lead to further consolidation in the industry. (MHARR, No. 154 at p. 33, 34)
The authority for the rule proposed in this document is section 413 of EISA (42 U.S.C. 17071), which is a separate authority from that governing appliance standards,
DOE considered the impacts of this rulemaking on small manufacturers. In response to concerns related to potential adverse impacts on price-sensitive, low-income purchasers of manufactured homes, DOE is proposing updated standard levels that are different from the June 2016 NOPR levels, upon which MHARR's comment are based. In the updated proposed standards, described in detail in section III.A.2, DOE structured the tiered standard to address affordability concerns for low-income home buyers and for the small manufacturers that serve that segment of the market. Furthermore, DOE conducted additional analysis, found in section V.B.4, to understand the magnitude of upfront cost impacts of
The national impact analysis (NIA) assesses the national energy savings (NES) and the national net present value (NPV) from a national perspective of total consumer costs and savings that would be expected to result from new or amended standards. “Consumer” in this context refers to consumers of the product being regulated. DOE calculates the NES and NPV based on projections of annual product shipments, along with the annual energy consumption and total incremental cost data from the LCC analyses.
In the June 2016 NOPR, DOE's NIA projected a net benefit to the nation as a whole as a result of the proposed rule in terms of NES and the NPV of total consumer costs and savings that would be expected as a result of the proposed rule in comparison with the minimum requirements of the HUD Code. DOE calculated the NES and NPV based on annual energy consumption and total construction and lifecycle cost data from the LCC analysis (developed during the MH working group negotiation process), and shipment projections. DOE projected the energy savings, operating cost savings, equipment costs, and NPV of consumer benefits sold in a 30-year period from 2017 through 2046. The analysis also accounted for costs and savings for a manufactured home lifetime of 30 years.
In addition, for the June 2016 NOPR, DOE developed a shipments model to forecast the shipments of manufactured homes during the analysis period. DOE first gathered historical shipments spanning 1990-2013 from a report developed and written by the Institute for Building Technology and Safety and published by the Manufactured Housing Institute.
DOE conducted sensitivity analyses in order to account for the ranges of estimates available for shipment assumptions. The analysis focused on changes to two parameters: The shipment growth rate and the price elasticity of demand. In the first sensitivity analysis, the shipment growth rate was changed to 6.5 percent instead of 1.8 percent based on the trend in actual manufactured home shipments from 2011 to 2014. This growth rate applies to both the no-standards case and standards case shipments. In a second sensitivity analysis, DOE considered a standards case shipment scenario in which the price elasticity is −2.4 (instead of −0.48). This would project a 2.4 percent reduction in shipments based on the projected cost increases in the June 2016 NOPR. DOE based this sensitivity case on previous HUD estimates of −2.4 price elasticity based on a 1992 paper written by Carol Meeks.
DOE received a number of comments regarding several aspects of the nationwide impacts described in the June 2016 NOPR. The following sections provide a discussion of each of the submitted comments as well as updates to the NIA conducted for this SNOPR.
DOE received numerous comments on the June 2016 NOPR regarding the methodology and assumptions used in the shipments analysis. In the June 2016 NOPR, for the no-standards case shipments, DOE assumed that all current manufactured home shipments reported by MHI are for manufactured homes that are minimally compliant with the HUD Code. NEEA commented that 54 percent of the manufactured homes built in the Pacific Northwest are built to the EPA's ENERGY STAR program specifications (NEEA, No. 190 at p. 4).
Because ENERGY STAR-certified manufactured homes are more efficient than minimally HUD Code-compliant homes, DOE agrees that ENERGY STAR homes should not be accounted for in the no-standard shipments and national impact analyses, so as to avoid overestimating energy savings and NPV benefits to the consumer. In this SNOPR, DOE's NIA analysis is based on the assumption that ENERGY STAR-certified manufactured homes would not provide additional national benefits as a result of this proposed rule, if made final.
DOE also received comments regarding the volume of manufactured housing shipments in the future. NEEA commented that the manufactured housing market has risen in recent years and it predicts the volume of homes built will be 20-40 percent higher than estimates used in DOE's NOPR analysis. (NEEA, No. 190 at p. 4) Southern Company commented that it believes that the shipment analysis should include a “spike” or large increase in shipments in the 2030s to serve as replacements for homes built in the late 1990s and early 2000s, during which time a similar large spike in shipments was observed. (Southern Company, Public Meeting Transcript, No. 148 at p. 104)
DOE acknowledges that there are a variety of factors that could affect future manufactured home shipments. For the June 2016 NOPR, DOE determined the shipment growth rate from the
DOE also recognizes that manufactured homes that reach the end of their useful life may eventually need to be replaced, and DOE agrees with Southern Company that replacement of old manufactured homes does indeed occur in the market and can cause an upshift in shipments. However, the ownership period of a manufactured home may vary drastically between different consumers and different manufactured homes. Furthermore, there may be homeowners who do not purchase a second manufactured home. Therefore, DOE bases future shipments on historical trends and residential housing start growth rates rather than replacements.
Regarding the source of the manufactured housing shipment data, COBA commented that the Institute for Building Technology and Safety (“IBTS”) is the primary source for HUD Code housing data and suggested that DOE contact IBTS directly to guarantee the most accurate data. (COBA, No. 158 at p. 5) DOE determined shipments from the annual production and shipment data provided by MHI.
DOE also received comments on the June 2016 NOPR regarding the changes currently taking place within the manufactured housing market. COBA commented that the overall distribution of manufactured homes has undergone a paradigm change, where roughly 500 portfolio operators of LLL Communities own the majority of new HUD Code homes. It said this change was not addressed by the MH working group and will greatly affect the cost of implementing the new DOE energy conservation standards. (COBA, No. 158 at p. 3) COBA commented that the sales of HUD Code homes through traditional distribution (via independent MH retailers and other manufacturers) have plummeted in the 21st century with loss of easy access to chattel capital. However, portfolio LLL Community operators have since realized that selling new homes on-site is the best method for success. COBA stated that in 2009, 25 percent of new HUD Code homes were shipped to LLL Communities; in 2015, it was closer to 40 percent, and is predicted to be 75 percent of new homes by 2020. (COBA, No. 158 at p. 7) COBA also stated that these newer large portfolios are very susceptible to price adjustments and are going to be hurt by the increase in price. (COBA, Public Meeting Transcript, No. 148 at p. 14, 27)
DOE appreciates the information regarding shipment distribution provided by COBA. However, DOE's LCC analysis focuses primarily on the effects of the rule on the individual consumers of manufactured homes. This proposed standard provides for a balanced approach regarding increased purchase price of the manufactured home in view of energy cost savings over time for a consumer. DOE's LCC analysis tentative results are provided in section IV.A.2. The LCC analysis applies to all consumers, regardless of whether they purchase the home from a commercial retailer or an onsite community operator.
In addition, DOE's shipment analysis studies the effect of the incremental price increases of the energy conservation standard on the total amount of manufacturer shipments in the United States and does not differentiate on who actually sells the home to consumers. The no-standards case shipments include shipments that are minimally compliant to the HUD Code. Furthermore, DOE's analysis for the standards-case shipments includes a price elasticity factor describing the change in future shipments in response to the energy conservation standards. Section IV.C.1.b provides more details regarding the price elasticity used in the analysis.
In this SNOPR, DOE also had to determine the percentage of the total shipments that would be applicable to each of the tiers analyzed based on HUD zone under the tiered proposal. Accordingly, DOE developed shipments for each of the tiers using the MHS 2019 PUF data discussed in III.A.2.
As a result, Table IV.23 provides the corresponding percentage of total manufactured homes placed/sold applicable to each tier based on HUD zone and size. These percentages were applied to the total shipments to determine the shipments for each tier. Further discussion on this analysis is provided in the Chapter 10 of the SNOPR TSD. Without the substitution effect applied, there would be more shipments in the Tier 2 standard for all climate zones, which would increase the national energy savings from the tiered standard.
DOE requests comment on the shipment breakdown per tier and using a substitution effect of 20 percent on shipments to account for the shift in homes sold to the lower tiered standard. DOE requests comment on whether it should use a different substitution effect value for this analysis—and if so, why. (Please provide data in support of an alternative substitution effect value.)
Price elasticity of demand (price elasticity) is an economic concept that describes the change of the quantity demanded in response to a change in price. Price elasticity is typically represented as a ratio of the percentage change in quantity relative to a percentage change in price. It allows DOE to assess the extent to which consumers and retailers are unable or unwilling to purchase new homes as a result of the increased costs. In the June 2016 NOPR, DOE used a price elasticity value of −0.48 to estimate the effect of the proposed rule on manufactured home shipments. This value was sourced from a study by Marshall and Marsh.
DOE received several comments on the June 2016 NOPR regarding the price elasticity that was used in the NOPR. MHARR stated that the −0.48 value was published in 2007 prior to the collapse of the housing market in 2008-2009. (MHARR, Public Meeting Transcript, No. 148 at p. 112) Southern Company and MHI expressed that the elasticity value of −0.48 seemed too low, particularly considering that a large part of the manufactured housing market is low-income households. Southern Company indicated that an elasticity value of -1 would be more intuitive. (Southern Company, Public Meeting Transcript, No. 148 at p. 110) MHI stated that HUD uses an elasticity value of −2.4 instead, which would yield a much greater decrease in production as a result of this standard. MHI indicated that both values are outdated, and that DOE may be underestimating the impact of the proposed rule. MHI suggested that DOE and HUD develop a new elasticity measure that is more up to date and accurately measures price sensitivity from manufacturers and retailers. (MHI, No. 182 at p. 5) MHCC also stated that the June 2016 NOPR analysis underestimates the reduction in production levels due to the proposed rule by using −0.48, which they deemed too low. (MHCC, No. 162 at p. 2)
DOE reviewed the Meeks study cited by HUD, as well as various others, and concluded that the Marshall and Marsh elasticity value of −0.48 was the most reliable figure. The Meeks study was published in 1993 and is based on manufactured housing shipments as a proxy for consumer demand.
Marshall and Marsh used the number of new manufactured homes placed for residential use as a proxy for consumer demand and also separated short-term consumer behavior from long-term influences. As part of their paper, Marshall and Marsh reviewed all the aforementioned studies (including Meeks', Gates', and Kavanaugh's studies) to determine the inputs into their model. They used national level data from similar sources to the Meeks, Gates, and Kavanaugh studies for their consumer demand model. Marshall and Marsh estimated the price elasticity of demand for manufactured homes at −0.48 using a two-stage regression model and concluded that consumers in general are not so price sensitive and are likely willing to accept incremental higher prices for improvements in cost efficiency. For the NIA, DOE determined the Marshall and Marsh study is still the most recent estimate of consumer demand based on price changes for manufactured housing and maintains the proposed usage of the −0.48 elasticity value. In recognition of the range of estimates in the housing literature, DOE also retained −2.4 as a sensitivity analysis. As discussed previously, DOE is proposing Tier 1 of the tiered standard to address concerns about affordability for low-income consumers. DOE estimates that based on a price elasticity of −0.48, the SNOPR would result in a loss in demand and availability of about 53,329 homes (single section and multi-section combined) for the tiered standard. Out of the 53,329 homes in the tiered standard, the majority of the reduction is in Tier 2 (93 percent) vs. Tier 1 (7 percent). Within Tier 1, DOE estimates a 0.52 percent reduction (essentially no reduction) in availability due to Tier 1 standards for low income purchasers. As a sensitivity, DOE also considered a price elasticity of demand of −2.4 instead of −0.48. Further discussion on this sensitivity is provided in Section 10.4 of Chapter 10 of the TSD. Table IV.1 provides a summary of the change in shipments from baseline for the tiered standards for a price elasticity of −0.48 and −2.4 to reflect the people who do not buy a manufactured home under the standards case because they are price-sensitive.
DOE received a comment concerning the discount rates used to calculate the NPV. GWU commented that it has concerns regarding the 3-percent and 7-percent discount rate used by DOE in the annualized benefits and costs calculation in the June 2016 NOPR. GWU stated that DOE's 3-percent and 7-percent discount rates were too low and that a more realistic discount rate, such as chattel loan rates, would reflect a much lower benefit to consumers. (GWU, No. 175 at p. 5)
DOE generally uses real discount rates of 3 percent and 7 percent to discount future costs and savings to present values.
DOE also received another comment that was not specific to any of the previous topics regarding nationwide impacts. NPGA commented that it appreciated DOE's use of full-fuel cycle analysis. It also supported the estimated reduction of pollutants and greenhouse gases for both site and upstream emissions. (NPGA, No. 171 at p.1) DOE appreciates NPGA's comment, and continues to use the full-fuel cycle analysis in this SNOPR.
This section provides the tentative results for the projected nationwide impact analyses, including the NES and NPV. In this SNOPR, DOE updated the energy efficiency measures analyzed as described in section III.E.2.b. DOE also updated all inputs to the NES and NPV based on the updated
DOE notes that the NES does not account for the energy savings for the people who do not buy a manufactured home under the standards case because they are price-sensitive. As such, NES only accounts for savings for those that are able to purchase a manufactured home. The NES is calculated based on the same number of homes purchased under both the standards and no standards case such that there are no energy savings attributed to less homes purchased.
Table IV. reflects the NES results over a 30-year analysis period under the SNOPR on a primary energy savings basis. Primary energy savings apply a factor to account for losses associated with generation, transmission, and distribution of electricity. Primary energy savings differ among the different climate zones because of differing energy conservation requirements in each climate zone and different shipment projections in each climate zone.
Table IV.21 illustrates the cumulative NES over the 30-year analysis period for the tiered proposals on an FFC energy savings basis. FFC energy savings apply a factor to account for losses associated with generation, transmission, and distribution of electricity, and the energy consumed in extracting, processing, and transporting or distributing primary fuels. NES values differ among the different climate zones because of differing energy efficiency requirements in each climate zone and different shipment projections in each climate zone.
Without the substitution effect applied, the total cumulative FFC energy savings for the tiered standards would increase by 0.2 percent.
Table IV.22 and Table IV.23 illustrate the NPV of consumer benefits over the 30-year analysis period under the tiered proposals for a discount rate of 7 percent and 3 percent, respectively. The NPV of manufactured homeowner benefits differ among the different climate zones because there are different upfront costs and operating cost savings associated with each climate zone and different shipment projections in each climate zone. For the primary tiered proposal, all climate zones have a positive NPV for both discount rates under this SNOPR.
Table IV.24 shows the tentative projected benefits and costs to the manufactured homeowner associated with the SNOPR, expressed in terms of annualized values.
DOE also estimated the deadweight loss associated with the proposed rule stemming from the reduced shipments in the standards case scenario. Deadweight loss is a cost to society as a whole generated by shifting the market away from the no-standards case equilibrium. If the supply curve is perfectly elastic, then the deadweight loss of an energy conservation standard is entirely borne by consumers and not producers. The deadweight loss is equivalent to one-half the incremental price multiplied by the reduction in total shipments, discounted over the 30-year analysis. If, however, the supply curve's slope near equilibrium is similar in magnitude to the demand curve, then the deadweight loss is equivalent to the incremental price multiplied by the reduction in total shipments, discounted over the 30-year analysis.
DOE does not have data on the supply curve elasticity, therefore DOE estimated the deadweight loss for the proposed standards using a price elasticity of −0.48.
DOE tentatively estimates that the discounted total deadweight loss for the standards based on Tier 1 range from $0.8 to $1.5 million (2020$, discounted at 3 percent) and $0.4 to $0.9 million (2020$, discounted at 7 percent). DOE tentatively estimates that the discounted total deadweight loss for the standards based on Tier 2 from $75.4 to $150.9 million (2020$, discounted at 3 percent) and $43.9 to $87.8 million (2020$, discounted at 7 percent). DOE tentatively estimates that the discounted total deadweight loss for the untiered standard range from $103.1 to $206.2 million (2020$, discounted at 3 percent) and $60 to $120 million (2020$, discounted at 7 percent).
DOE requests comment on the calculation of deadweight loss presented above and the extent to which there are market failures in the no-standards case.
DOE considered two sensitivity analyses relating to shipments. First, DOE considered a shipment scenario in which the growth rate is 6.5 percent (instead of 0.3 percent) based on the trend in actual manufactured home shipments from 2011 to 2014. This growth rate applies to both the no-standards case and standards case shipments. DOE's primary scenario is based on the residential housing start data from
In a second sensitivity analysis, DOE considered a standards case shipment scenario in which the price elasticity is −2.4 (instead of −0.48). HUD has used an estimate of −2.4 in analyses of revisions to its regulations
DOE estimates environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases associated with electricity production. DOE bases these estimates on a 30-year analysis period of manufactured home shipments, accounting for a 30-year home lifetime. DOE's analysis estimates reductions in emissions of six pollutants associated with energy savings: Carbon dioxide (CO
As in the June 2016 NOPR, DOE estimated emissions reductions based on emission factors for each pollutant, which depend on the type of fuel associated with energy savings (electricity, natural gas, liquefied petroleum gas, fuel oil). The analysis of power sector emissions of CO
Because the onsite operation of manufactured homes may require combustion of fossil fuels and results in emissions of CO
As part of the analysis of the impacts of this proposed rule, DOE considered the estimated monetary benefits from the reduced emissions of CO
DOE estimates the monetized benefits of the reductions in emissions of CO
DOE used the estimates for the social cost of greenhouse gases (“SC-GHG”) from the most recent update of the Interagency Working Group on Social Cost of Greenhouse Gases, United States Government (IWG) working group, from “Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive Order 13990.” (February 2021 TSD). DOE has determined that the estimates from the February 2021 TSD, as described more below, are based upon sound analysis and provide well founded estimates for DOE's analysis of the impacts of the reductions of emissions anticipated from the proposed rule.
The SC-GHG estimates in the February 2021 TSD are interim values developed under Executive Order (E.O.) 13990 for use until an improved estimate of the impacts of climate change can be developed based on the best available science and economics. The SC-GHG estimates used in this analysis were developed over many years, using a transparent process, peer-reviewed methodologies, the best science available at the time of that process, and with input from the public. Specifically, an interagency working group (IWG) that included DOE, the EPA and other executive branch agencies and offices used three integrated assessment models (IAMs) to develop the SC-CO
The SC-CO
DOE's derivations of the SC-CO
The SC-CO
In calculating the potential global benefits resulting from reduced CO
DOE multiplied the CO
The SC-CH
DOE multiplied the CH
For the SNOPR, DOE estimated the monetized value of NO
DOE estimated the monetized value of NO
DOE multiplied the emissions reduction (in tons) in each year by the associated $/ton values, and then discounted each series using discount rates of 3 percent and 7 percent as appropriate.
DOE received a number of comments regarding several aspects of the nationwide environmental benefits described in the June 2016 NOPR. The following sections provide a discussion of each of the submitted comments, including the changes that DOE has made in the methodology and assumptions.
DOE received several comments on the development of, and the use of the SC-CO
In contrast, the Joint Advocates stated that only a partial accounting of the costs of climate change (those most easily monetized) can be provided, which inevitably involves incorporating elements of uncertainty. The Joint Advocates commented that accounting for the economic harms caused by climate change is a critical component of sound cost—benefit analyses of regulations that directly or indirectly limit greenhouse gases. The Joint Advocates stated that several executive orders direct Federal agencies to consider non-economic costs and benefits, such as environmental and public health impacts. (Joint Advocates, No. 147 at pp. 2-3) Furthermore, the Joint Advocates argued that without an SC-CO
The Joint Advocates stated that assessment and use of the IAMs in developing the SC-CO
DOE emphasizes that the SC-GHG analysis presented in this SNOPR and TSD was performed in support of the cost-benefit analyses required by Executive Order 12866, and is provided to inform the public of the impacts of emissions reductions resulting from this proposed rule. The SC-GHG estimates were not factored into DOE's determination of whether the proposed rule could be cost-effective under section 413 of EISA 2007.
As noted previously, DOE has updated the SC-CO
First, as the IWG affirmed, a global perspective is essential for social cost of greenhouse gases (SC-GHG) estimates because climate impacts occurring outside U.S. borders can directly and indirectly affect the welfare of U.S. citizens and residents. Thus, U.S. interests are affected by the climate impacts that occur outside U.S. borders. Examples of affected interests include: Direct effects on U.S. citizens and assets located abroad, international trade, tourism, and spillover pathways such as economic and political destabilization and global migration. In addition, assessing the benefits of U.S. GHG emissions reductions requires consideration of how those actions may affect emissions reductions by other countries, as those international actions will provide a benefit to U.S. citizens and residents by mitigating climate impacts that affect U.S. citizens and residents. Therefore, in analyzing the potential impacts of this proposed rule DOE focuses on a global measure of SC-GHG. As noted in the February 2021 TSD, the IWG will continue to review developments in the literature, including more robust methodologies for estimating SC-GHG values based on purely domestic damages, and explore ways to better inform the public of the full range of carbon impacts, both global and domestic. As a member of the IWG, DOE will likewise continue to follow developments in the literature pertaining to this issue.
Second, as the IWG found, the use of the social rate of return on capital (7 percent under current OMB Circular A-4 guidance) to discount the future benefits of reducing GHG emissions inappropriately underestimates the impacts of climate change for the purposes of estimating the SC-GHG. Consistent with the findings of the National Academies (2017) and the economic literature, the IWG continued to conclude that the consumption rate of interest is the theoretically appropriate discount rate in an intergenerational context (IWG 2010, 2013, 2016a, 2016b), and recommended that discount rate uncertainty and relevant aspects of intergenerational ethical considerations be accounted for in selecting future discount rates.
While the IWG works to assess how best to incorporate the latest, peer reviewed science to develop an updated set of SC-GHG estimates, it set the interim estimates to be the most recent estimates developed by the IWG prior to the group being disbanded in 2017. The estimates rely on the same models and harmonized inputs and are calculated using a range of discount rates. As explained in the February 2021 TSD, the IWG has determined that it is appropriate to revert to the same set of four values drawn from the SC-GHG distributions based on three discount rates as were used in regulatory analyses between 2010 and 2016 and subject to public comment. As explained in the February 2021 TSD, this update reflects the immediate need to have an operational SC-GHG for use in regulatory benefit-cost analyses and other applications that was developed using a transparent process, peer-reviewed methodologies, and the science available at the time of that process. Those estimates were subject to public comment in the context of dozens of proposed rulemakings as well as in a dedicated public comment period in 2013.
DOE acknowledges that there are a number of challenges in attempting to assess the incremental economic impacts of CO
In the June 2016 NOPR, DOE also estimated monetary benefits for NO
The Joint Advocates commented that DOE acknowledges that its proposed standards will reduce significant quantities of non-carbon dioxide greenhouse gases, including methane, and has estimated monetary benefits for NO
As noted previously, DOE has updated its analysis to account for the social cost of methane and nitrous oxide consistent with the SC-CH
In this SNOPR DOE updated its analysis from the 2016 NOPR based on the results of the national energy savings discussed in section IV.C.2. DOE also updated its analysis to utilize emission factors derived from data in the
SO
However, beginning in 2016, SO
CSAPR also established limits on NO
The MATS limit mercury emissions from power plants, but they do not include emissions caps and as such, DOE's energy conservation standards would be expected to slightly reduce Hg emissions. DOE estimated mercury emissions reduction using emissions factors based on
Combustion emissions of CH
Table IV.29 reflects the emissions reductions for both single-section and multi-section manufactured homes.
DOE estimated the global social benefits of GHG emission reductions expected from this final rule using the SC-GHG estimates presented in the
Similarly, DOE has updated the quantified total climate benefits to estimate monetary benefits likely to result from the reduced emissions of CH
In this SNOPR, DOE also updated the monetization of NO
DOE has not considered the monetary benefits of the reduction of Hg for this SNOPR.
DOE has tentatively determined that under either proposal the benefits to the Nation of the standards (energy savings, consumer LCC savings, positive NPV of consumer benefit, and emission reductions) outweigh the burdens (loss of INPV, LCC increases for some homeowners of manufactured housing, and price-sensitive consumers who do not purchase manufactured homes). The tentative projected total benefits and costs (from the manufactured homeowner's perspective) associated with the SNOPR, expressed in terms of annualized values, is presented in Table I.9 (See Section I.E), and is explained in greater detail in section IV and in chapter 15 of the SNOPR TSD.
Section 1(b)(1) of Executive Order (E.O.) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), requires each agency to identify the problem that it intends to address, including, where applicable, the failures of private markets or public institutions that warrant new agency action, as well as to assess the significance of that problem. The problems that the proposed standards for manufactured housing are intended to address are as follows:
(1) Under current federal standards, manufactured homes typically conserve less energy than comparably built site-built and modular homes,
(2) Insufficient information and the high costs of gathering and analyzing relevant information leads some consumers to miss opportunities to make cost-effective investments in energy efficiency.
(3) In some cases, the benefits of more efficient equipment are not realized due to misaligned incentives between purchasers and users. An example of such a case is when a product or design decision is made by a building contractor or building owner who does not pay the energy costs.
(4) There are external benefits resulting from improved energy efficiency of products or equipment that are not captured by the users of such equipment. These benefits include externalities related to public health, environmental protection and national energy security that are not reflected in energy prices, such as reduced emissions of air pollutants and greenhouse gases that impact human health and global warming.
The Administrator of the Office of Information and Regulatory Affairs (“OIRA”) in the OMB has determined that the regulatory action in this document is a significant regulatory action under section (3)(f) of E.O. 12866. Accordingly, pursuant to section 6(a)(3)(B) of the E.O., DOE has provided to OIRA: (1) The text of the draft regulatory action, together with a reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need; and (2) an assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate. DOE has included these documents in the rulemaking record.
In addition, the Administrator of OIRA has determined that the regulatory action is an “economically” significant
DOE has also reviewed this proposed regulation pursuant to E.O. 13563, issued on January 18, 2011. 76 FR 3281 (Jan. 21, 2011). E.O. 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in E.O. 12866. To the extent permitted by law, agencies are required by E.O. 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, OIRA has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this proposed rule is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.
The Regulatory Flexibility Act (5 U.S.C. 601
EISA requires DOE to regulate energy conservation in manufactured housing, an area of the building construction industry traditionally regulated by HUD. HUD has regulated the manufactured housing industry since 1976, when it first promulgated the HUD Code. Among other provisions, EISA directs DOE to consult with the Secretary of HUD, who may seek further counsel from the Manufactured Housing Consensus Committee (MHCC); and to base the energy conservation standards on the most recent version of the IECC, except where DOE finds that the IECC is not cost effective or where a more stringent standard would be more cost effective, based on the impact of the IECC on the purchase price of manufactured housing and on total lifecycle construction and operating costs. (42 U.S.C. 17071).
DOE received comments from the Office of Advocacy at the U.S. Small Business Administration (“Advocacy”) and other interested parties on the manufactured housing June 2016 NOPR regarding small businesses. These comments are addressed in this section.
Advocacy stated that DOE published an IRFA that did not comply with the RFA's requirement to quantify or describe the economic impact that the proposed regulation might have on small entities. (Advocacy, No. 177 at p. 2) Advocacy stated that DOE failed to include large costs such as conversion costs and test procedure compliance costs. Advocacy also stated that compliance and enforcement costs (redesign costs, plant modifications, re-costing and sourcing new materials, inspections, approvals, consulting fees, and employee training) are major costs to small businesses and should be included and analyzed in the proposed rule (Advocacy, No. 177 at p. 3).
In the June 2016 NOPR IRFA DOE estimated the impacts on small
Advocacy requested that DOE present and analyze significant alternatives, and adopt a regulatory alternative to the proposed standard that will minimize the economic impact to small manufacturers (Advocacy, No. 177 at pp. 2-4). Further, Advocacy expressed concern that the proposed rule would have a significant impact on small manufacturers. Advocacy stated it takes longer for small manufacturers to recover investments, because they must spread similar redesign investments over a lower volume of units than larger competitors. (Advocacy, No. 177 at p. 2) Additionally, MHARR commented that the proposed rule will have a particularly negative impact on the smaller producers in terms of regulatory cost burdens. (MHARR, Public Meeting Transcript, No. 148 at p. 13) The MHCC commented that DOE has not adequately addressed the impact of the proposed rule on small manufacturers, stating that small manufacturers may not be able to compete in the marketplace due to economies of scale afforded to large manufacturers that are able to purchase materials in volume at discounted rates not available to smaller manufacturers. The MHCC noted that DOE did not certify that the proposed rule would not have a significant impact on small manufacturers. (MHCC, No. 162 at p. 2).
In the June 2016 NOPR, DOE quantified the number of small businesses that have a direct compliance burden and estimated the magnitude of the compliance burden based on industry average conversion costs. In this updated IRFA, DOE expands its analysis to include a more detailed review of the burdens, an analysis of the costs specific to small manufacturers, and a comparison of these costs to small manufacturer revenue to determine whether those costs are significant. This analysis can be found in section V.B.4 of the updated IRFA. Additionally, DOE includes a review of alternatives to this proposal in section V.B.5 of the IRFA. DOE recognizes that new standards can create cost uncertainty for small businesses, but the updated analysis finds that the expected investments are less than 0.1 percent of revenues for small manufacturers (see section V.C.4). While small manufacturers may need to spread these costs over a lower volume of shipments than larger competitors, DOE finds this level of investment unlikely to change the level of industry competition or be a driver of industry consolidation.
Advocacy commented that DOE's estimate of $2,423 and $3,745 price increases for single- and multi-section manufactured homes is extremely low and does not accurately reflect the baseline cost, nor the dealer and retail markups. Advocacy expressed that even a modest increase in the price of manufactured housing will prevent many potential consumers from obtaining financing, which would severely impact small manufacturers' consumer base. Further, Advocacy stated that dominant businesses in the manufactured home industry can sell manufactured homes at cost or offer energy rebates to their consumers to offset the increased price of energy efficient homes. Advocacy stated that small businesses cannot absorb the added cost to comply with the proposed regulation. (Advocacy, No. 177 at p. 3).
In response to the June 2016 NOPR, certain parties commented that DOE's estimated incremental cost to the consumer were too low, whereas other interested parties stated that the estimates were too high (see section IV.A.1.g for a full discussion). During the June 2016 NOPR public meeting, MHI stated that it represents small manufacturers and that the cost analysis used by the MH working group included small, medium, and large manufacturers. (MHI, Public Meeting Transcript, No. 148 at pp. 85-86). DOE confirmed MHI represented multiple small manufacturers through its publicly-available manufacturer membership list.
MHARR stated that DOE's analysis contains financial information from 10-K filings that are likely from larger industry corporations. (MHARR, No. 154 at p. 33) Table 12.1 of the SNOPR Technical Support Document (TSD) summarizes the financial parameters DOE used in its analysis of manufacturer impacts. The Department makes uses of all public and private financial information made available. DOE invites stakeholders to provide additional financial data to be considered in the analysis.
MHARR referenced a SBA report to make the case that federal regulation generally has a disproportionately negative impact on smaller businesses in any industry. (MHARR, No. 154 at pp. 33). As noted in the NOPR, DOE recognizes that the rulemaking will have costs to small manufacturers. In this SNOPR, DOE includes a tiered proposal which is based on a tiered structure that would minimize impacts on the most cost-sensitive segment of manufactured home buyers and on the small manufacturers that serve that market segment. In the updated IRFA (see the “Description and Estimate of Compliance Requirements” section below), DOE estimates conversion costs of the updated proposed standard level to be $43,000 per small manufacturer, an amount that is less than 0.1% of average annual revenues.
Lastly, Advocacy recommended that DOE adopt delayed compliance schedules for small manufacturers, stating that more time to comply will allow them to spread costs and manage their limited resources in a way that will minimize the economic impact on their business. (Advocacy, No. 177 at p. 4) In this SNOPR, DOE has proposed a one-year lead time for compliance. As discussed in previous sections, a one-year lead time would allow for coordination of compliance with the DOE requirements and the HUD Code and provide manufacturers flexibility in allocating and managing the resources needed to bring their manufactured homes into compliance. Additionally, a one-year lead-time would allow for the evaluation of industry compliance under the DOE standards before DOE is required to evaluate potential updates based on the next version of the IECC.
The SBA has set a size threshold for manufacturers of manufactured homes, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. (13 CFR part 121) The size standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at
To estimate the number of companies that manufacture manufactured housing covered by this rulemaking, DOE conducted a market survey using publicly available information. DOE first attempted to identify all manufactured housing manufacturers by researching industry trade associations (
DOE identified 34 manufacturers of manufactured housing affected by this rulemaking. Of these, DOE identified 29 as domestic small businesses.
DOE requests comment on the number of manufacturers of manufactured housing producing home covered by this rulemaking.
To evaluate impacts facing manufacturers of manufactured housing, DOE estimated both the capital conversion costs (
To calculate product conversion costs, DOE estimated the number of model-plans manufacturers would need to redesign. Based on input from subject matter experts in the industry, manufacturers would need to update between 200 and 250 plans as a result of the standard. Consulting with subject matter experts in the industry, DOE estimated that each plan would require 3 hours of engineering time to update. Based on data from the Bureau of Labor Statistics, DOE calculated a fully burdened mean hourly wage for a mechanical engineer at $65.63/hour in 2020.
While DOE understands most manufacturers have the necessary equipment to produce manufactured homes that are compliant with the standards as proposed in this document, DOE incorporated capital conversion costs of approximately $3,000 per manufacturer to cover additional work stations, equipment, and tooling that may be needed to support compliance with the standard.
In aggregate, DOE estimates the average small manufacturer would incur $52,000 in conversion costs. Based on data from business databases (
DOE requests comment on the cost to update model plans and the number of model plans to update as a result of the proposed rule; on the types of equipment and capital expenditures that would be necessitated by the proposal; and the total cost of updating product offerings and manufacturing facilities. DOE requests comment on how these values would differ for small manufacturers. DOE requests comment on its estimate of average annual revenues for small manufacturers of manufactured housing.
In reviewing alternatives to the proposed standards, DOE examined energy conservation standards proposed in the June 2016 NOPR. The June 2016 NOPR was adopted by the MH working group, which consisted of 22 representatives of stakeholders,
DOE evaluated the alternative of adopting a single, untiered standard for manufactured homes that focuses on the building thermal envelope, duct and air sealing, insulation installation, HVAC specifications, service hot water systems, mechanical ventilation fan efficacy, and heating and cooling equipment sizing provisions, based on the 2021 IECC. The untiered standard would apply all manufactured homes,
However, DOE's primary proposal in this SNOPR is the tiered standard. DOE structured this proposal to minimize impacts on the most price-sensitive consumers and manufacturers that sell to those consumers. In the proposal, Tier 1 would apply to manufactured homes with a manufacturer's retail list price of $55,000 or less, and would incorporate building thermal envelope measures based on certain thermal envelope components subject to the 2021 IECC but would limit the incremental purchase price increase to $750 or less. The proposal also sets up a Tier 2 that would apply to manufactured homes with a manufacturer's retail list price greater than $55,000. The Tier 2 standards would be set to stringencies based on the 2021 IECC and likely increase purchase prices by more than $750. The tiered proposal is expected to result in 2.32 quads of energy savings over the 30-year analysis period. The tiered proposal balances the benefits of the energy savings with the potential burdens placed on low-income consumers and on manufacturers that serve those consumers.
This rulemaking would not include any information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
DOE is preparing a draft Environmental Impact Statement (EIS) (DOE/EIS-0550) entitled, “Environmental Impact Statement: Energy Conservation Standards for Manufactured Housing”, pursuant to the National Environmental Policy Act of 1969 (NEPA), the Council on Environmental Quality's Regulations for implementing the procedural provisions of the National Environmental Policy Act (40 CFR parts 1500-1508), and DOE's NEPA Implementing Procedures (10 CFR part 1021).
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999) imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
DOE has examined this action and has determined that it will not pre-empt State law. This action impacts energy efficiency requirements for manufacturers of manufactured homes. Therefore, no further action is required by E.O. 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met, or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of E.O. 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, section 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
DOE has tentatively concluded that this proposed rule may require expenditures of $100 million or more in one year by the private sector. Such expenditures may include: (1) Updates to product plans and investment in capital expenditures by manufactured home manufacturers in the years between the final rule and the compliance date of the new standards, and (2) incremental additional expenditures by consumers to purchase higher-efficiency manufactured homes, starting at the compliance date for the standards.
Section 202 of UMRA authorizes a Federal agency to respond to the content requirements of UMRA in any other statement or analysis that accompanies the rule. (2 U.S.C. 1532(c)) The content requirements of section 202(b) of UMRA relevant to a private sector mandate substantially overlap the economic analysis requirements that apply under E.O. 12866. The
Under section 205 of UMRA, the Department is obligated to identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a written statement under section 202 is required. (2 U.S.C. 1535(a)) DOE is required to select from those alternatives the most cost-effective and least burdensome alternative that achieves the objectives of the rule unless DOE publishes an explanation for doing otherwise, or the selection of such an alternative is inconsistent with law.
In accordance with the statutory provisions discussed in this document, this proposed rule would establish energy conservation standards for manufactured homes based on the most recent IECC, except in cases in which DOE finds that the IECC is not cost-effective, or a more stringent standard would be more cost-effective, based on the impact of the code on the purchase price of manufactured housing and on total life-cycle construction and operating costs, and taking into consideration the design and factory construction techniques of manufactured homes. (42 U.S.C. 17071(b)(1) and 42 U.S.C. 17071(b)(2)(A)) A discussion of the alternatives considered by DOE is presented in chapter 15 of the TSD for this SNOPR.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposal, if finalized as proposed, would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 18, 1988), DOE has determined that this proposal, if finalized as proposed, would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under E.O. 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has tentatively concluded that this regulatory action, which proposes new energy conservation standards for manufactured housing, is not a significant energy action because the standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this proposed rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer-reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the Bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.” 70 FR 2664, 2667.
In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process for consumer products and industrial equipment under EPCA and the analyses that are typically used and prepared a report describing that peer review.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the FTC Chairman concerning the impact of the commercial or industry standards on competition.
DOE is proposing to incorporate by reference the industry standard published by ACCA, titled
DOE is proposing to incorporate by reference the industry standard published by ACCA, titled
DOE is proposing to incorporate by reference the industry standard written by C.C Conner and Z.T. Taylor of Pacific Northwest Laboratory, titled
DOE has evaluated these standards and was unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (
The time and date of the webinar meeting are listed in the
Any person who has an interest in the topics addressed in this SNOPR, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the webinar. Requests should be sent by email to:
Persons requesting to speak should briefly describe the nature of their interest in this rulemaking and provide a telephone number for contact. DOE requests persons selected to make an oral presentation to submit an advance copy of their statements at least two weeks before the webinar. At its discretion, DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Office. As necessary, requests to give an oral presentation should ask for such alternative arrangements.
DOE will designate a DOE official to preside at the webinar and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the webinar. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the webinar and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.
The webinar will be conducted in an informal, conference style. DOE will present summaries of comments received before the webinar, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the webinar will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be
A transcript of the webinar will be included in the docket, which can be viewed as described in the Docket section at the beginning of this SNOPR. In addition, any person may buy a copy of the transcript from the transcribing reporter.
DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
1. DOE invites comment on whether (1) the manufacturer's retail list price threshold for Tier 1 under the tiered proposal is appropriate, (2) the untiered proposal in this SNOPR is cost-effective, generally, and (3) the untiered proposal is cost-effective for low-income consumers.
2. DOE welcomes comment on approaches for testing, compliance and enforcement provisions for the proposed standards and alternative proposal. DOE also welcomes comments and information related to potential testing, compliance and enforcement under the current HUD inspection and enforcement process, and potential costs of testing, compliance and enforcement of the proposed standards and alternative proposal in this document.
3. DOE requests comment on the use of a tiered approach to address affordability and PBP concerns from HUD, other stakeholders, and the policies outlined in Executive Order 13985. DOE also requests comment regarding whether the price point boundary between the proposed tiers is appropriate, and if not, at what price point should it be set and the basis for any alternative price points. DOE also requests comment on its assumptions regarding the use of high-priced loans (
4. DOE also requests comment on alternate thresholds (besides price point) to consider for the tiered approach, including a size-based threshold (
5. DOE requests comment on using the AEO GDP deflator series to adjust the manufacturer's retail list price threshold for inflation. DOE requests comment on whether other time series, including those that account for regional variability, should be used to adjust manufacturer's retail list price.
6. DOE requests comment on whether a one-year lead time would be sufficient given potential constraints that compliance with the DOE standards may initially place on the HUD certification process, and whether a longer lead time (
7. DOE requests comment on its understanding of the definitional changes in the 2018 IECC and the 2021 IECC. DOE also requests comments on its changes to the proposed definitions as compared to those proposed in the June 2016 NOPR.
8. DOE requests comment on incorporating by reference ACCA Manual J, ACCA Manual S, and “Overall U-Values and Heating/Cooling Loads—Manufactured Homes” by Conner and Taylor.
9. DOE requests comment on basing the climate zones on the three HUD zones instead of the June 2016 NOPR-proposed four climate zones, or other configuration of climate zones. DOE further requests input on whether energy efficiency requirements should be based on smaller geographic areas than provided with the 3 or 4 zone model.
10. DOE requests comment on the Tier 1 energy conservation standards, which would be applicable to manufactured homes with a manufacturer's retail list price of $55,000 or less. DOE also requests comment on the proposed energy conservation standards based on the most recent version of the IECC for the Tier 2 and untiered standards and the consideration of R-21 sensitivity for exterior wall insulation for climate zones 2 and 3.
11. DOE requests comment on the additional energy efficiency requirements from the 2021 IECC and whether they should apply to manufactured homes, including those that DOE has initially considered as not applicable to manufactured homes. If so, DOE requests comment on how these requirements would apply and the costs and savings associated with these requirements.
12. DOE requests comment on the proposal to not require that exterior ceiling insulation must have uniform thickness or a uniform density.
13. DOE requests comment on the proposal not to limit the total area of glazed fenestration.
14. DOE requests comment on removing the proposed requirement that exterior floor insulation installed must maintain permanent contact with the underside of the rough floor decking.
15. DOE requests comment on the proposed updates to the installation of insulation criteria as it applies to manufactured homes construction only.
16. DOE requests comments on whether there are any of the 2021 IECC updates relevant to manufactured housing that should be considered as part of this rulemaking. Specifically, DOE requests comment on whether the 2021 IECC updates for installation criteria for access hatches and doors, baffles and shafts are applicable to manufactured housing and should be considered in this rulemaking.
17. DOE requests comment on the proposed updates to the air barrier criteria as it applies to manufactured homes construction only. Further, DOE requests comment whether the SNOPR proposal continues to be designed to achieve air leakage sealing requirements of 5 ACH.
18. DOE requests comments on whether there are any of the 2021 IECC updates relevant to manufactured housing that should be considered as part of this rulemaking. Specifically, DOE requests comment on whether the 2021 IECC updates for air barrier criteria for recessed lighting, narrow cavities and plumbing are applicable to manufactured housing and should be considered in this rulemaking. If so, DOE requests comment on whether the requirements would alter the 5 ACH designation.
19. DOE requests comment on the proposal to require that total air leakage of duct systems for all manufactured homes is to be less than or equal to 4 cfm per 100 square feet of conditioned floor area.
20. DOE requests comment on DOE's interpretation of R403.1 and the proposed updates to the thermostat and controls requirements. In addition, DOE requests comments on whether there are any of the 2021 IECC updates relevant to manufactured housing that should be considered as part of this rulemaking.
21. DOE requests comment on DOE's interpretation of R403.5 and the proposed updates to the service hot water requirements. In addition, DOE requests comments on whether there are any of the 2021 IECC updates relevant to manufactured housing that should be considered as part of this rulemaking. Specifically, DOE requests comment on whether the circulating hot water system temperature limit should be included as a requirement.
22. DOE requests comment on the proposal to include the 2021 IECC fan efficacy standard requirements. DOE requests comment on whether any of the fan efficacy requirements are not applicable to manufactured homes.
23. DOE requests comment on whether the HRV and ERV provisions under 2021 IECC for site-built homes are applicable to manufactured homes and whether they would be cost-effective. Specifically, DOE requests comment on costs for the HRV and ERV requirements as it applies to manufactured homes in all climate zones.
24. DOE requests comment on the above ventilation strategies, including (but not limited to) cost, performance, noise, and any other important attributes that DOE should consider, including those related to mitigation measures. While the alternate ventilation approaches are not integrated into the analysis presented as part of this proposal, DOE is giving serious consideration as to whether it should incorporate one or more of these options as part of its final rule based on any additional data and public comments it receives.
25. DOE requests comment on the cost-effectiveness and feasibility of requiring R-20+5 for the exterior wall insulation for climate zone 2 and 3 Tier 2/Untiered manufactured homes. DOE also requests comment on the sensitivity analysis for R-21 that would result in positive LCC savings for all cities.
26. DOE requests comment on the inputs to the conversion cost estimates.
27. DOE requests comment on the shipment breakdown per tier and using a substitution effect of 20 percent on shipments to account for the shift in homes sold to the lower tiered standard. DOE requests comment on whether it should use a different substitution effect value for this analysis—and if so, why. (Please provide data in support of an alternative substitution effect value.)
28. DOE requests comment on the calculation of deadweight loss presented above and the extent to which there are market failures in the no-standards case.
29. DOE requests comment on the number of manufacturers of manufactured housing producing home covered by this rulemaking.
30. DOE requests comment on the cost to update model plans and the number of model plans to update as a result of the proposed rule; on the types of equipment and capital expenditures that would be necessitated by the proposal;
The Secretary of Energy has approved publication of this notice of proposed rulemaking.
Administrative practice and procedure, Buildings and facilities, Energy conservation, Housing standards, Incorporation by reference, Reporting and recordkeeping requirements.
This document of the Department of Energy was signed on August 12, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
For the reasons stated in the preamble, DOE proposes to add part 460 of chapter II of title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 17071; 42 U.S.C. 7101
This subpart establishes energy conservation standards for manufactured homes as manufactured at the factory, prior to distribution in commerce for sale or installation in the field. A manufactured home that is manufactured on or after (date 1 year after the publication date of the final rule amending standards for manufactured homes) must comply with all applicable requirements of this part.
Adapted from Section R202 of the 2021 IECC and as used in this part—
Certain material is incorporated by reference into this subpart with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, DOE must publish a document in the
(a)
(1) ANSI/ACCA 2 Manual J-2016 (“ACCA Manual J”),
(2) ANSI/ACCA 3 Manual S-2014 (“ACCA Manual S”),
(b)
(1) PNL-8006, (“Overall
(2) [Reserved].
(a)
(b)
(c)
Manufactured homes subject to the requirements of this subpart must comply with the requirements applicable to one or more of the climate zones set forth in Figure 460.101 and Table 460.101 of this section.
(a)
(b)
(2) For the purpose of compliance with the exterior ceiling insulation
(3) A combination of
(4) An individual skylight that has an SHGC that is less than or equal to 0.30 is not subject to the glazed fenestration SHGC requirements established in paragraph (b)(1) of this section. Adapted from section R402 of the 2021 IECC.
(5)
(c)
(2) Area-weighted average vertical fenestration
(3) Area-weighted average skylight
(4) Windows, skylights and doors containing more than 50 percent glazing by area must satisfy the SHGC requirements established in paragraph (b)(1) of this section on the basis of an area-weighted average. Adapted from section R402 of the 2021 IECC.
(d)
(2) [Reserved]
Insulating materials must be installed according to the insulation manufacturer's installation instructions and the requirements set forth in Table 460.103 of this section, which is adapted from section R402 of the 2021 IECC.
Manufactured homes must be sealed against air leakage at all joints, seams, and penetrations associated with the building thermal envelope in accordance with the component manufacturer's installation instructions and the requirements set forth in Table 460.104 of this section. Sealing methods between dissimilar materials must allow for differential expansion, contraction and mechanical vibration, and must establish a continuous air barrier upon installation of all opaque components of the building thermal envelope. All gaps and penetrations in the exterior ceiling, exterior floor, and exterior walls, including ducts, flue shafts, plumbing, piping, electrical wiring, utility penetrations, bathroom and kitchen exhaust fans, recessed lighting fixtures adjacent to unconditioned space, and light tubes adjacent to unconditioned space, must be sealed with caulk, foam, gasket or other suitable material. The air barrier installation criteria is adapted from section R402 of the 2021 IECC.
Each manufactured home equipped with a duct system, which may include air handlers and filter boxes, must be sealed to limit total air leakage to less than or equal to four (4) cubic feet per minute per 100 square feet of conditioned floor area. Building framing cavities must not be used as ducts or plenums when directly connected to mechanical systems. The duct total air leakage requirements are adapted from section R403 of the 2021 IECC.
(a) At least one thermostat must be provided for each separate heating and cooling system installed by the manufacturer. The thermostat and controls requirements are adapted from section R403 of the 2021 IECC.
(b) Programmable thermostat. Any thermostat installed by the manufacturer that controls the heating or cooling system must—
(1) Be capable of controlling the heating and cooling system on a daily schedule to maintain different temperature set points at different times of the day and different days of the week;
(2) Include the capability to set back or temporarily operate the system to maintain zone temperatures down to 55 °F (13 °C) or up to 85 °F (29 °C); and
(3) Initially be programmed with a heating temperature set point no higher than 70 °F (21 °C) and a cooling temperature set point no lower than 78 °F (26 °C).
(c) Heat pumps with supplementary electric-resistance heat must be provided with controls that, except during defrost, prevent supplemental heat operation when the heat pump compressor can meet the heating load.
(a) Service hot water systems installed by the manufacturer must be installed according to the service hot water manufacturer's installation instructions. Where service hot water systems are installed by the manufacturer, the manufacturer must ensure that any maintenance instructions received from the service hot water system manufacturer are provided with the manufactured home. The service hot water requirements are adapted from section R403 of the 2021 IECC.
(b) Any automatic and manual controls, temperature sensors, pumps associated with service hot water systems must provide access.
(c) Heated water circulation systems must—
(1) Be provided with a circulation pump;
(2) Ensure that the system return pipe is a dedicated return pipe or a cold water supply pipe;
(3) Not include any gravity or thermosyphon circulation systems;
(4) Ensure that controls for circulating heated water circulation pumps start the pump based on the identification of a demand for hot water within the occupancy; and
(5) Ensure that the controls automatically turn off the pump when the water in the circulation loop is at the desired temperature and when there is no demand for hot water.
(d) All hot water pipes—
(1) Outside conditioned space must be insulated to a minimum
(2) From a service hot water system to a distribution manifold must be insulated to a minimum
(a) Whole-house mechanical ventilation system fans must meet the minimum efficacy requirements set forth in Table 460.204 of this section, except as provided in paragraph (b) of this section. The mechanical ventilation fan efficacy requirements are adapted from section R403 of the 2021 IECC.
(b) Mechanical ventilation fans that are integral to heating, ventilating, and air conditioning equipment, including furnace fans as defined in § 430.2 of this title, are not subject to the efficiency requirements in paragraph (a) of this section.
Sizing of heating and cooling equipment installed by the manufacturer must be determined in accordance with ACCA Manual S (incorporated by reference; see § 460.3) based on building loads calculated in accordance with ACCA Manual J (incorporated by reference; see § 460.3). The equipment sizing criteria are adapted from section R403 of the 2021 IECC.
Department of Homeland Security.
Interim final rule; request for comments.
The U.S. Department of Homeland Security (DHS) is establishing a new talent management system to address DHS's historical and ongoing challenges recruiting and retaining individuals with skills necessary to execute DHS's dynamic cybersecurity mission. The Cybersecurity Talent Management System (CTMS) is a mission-driven, person-focused, and market-sensitive approach to talent management. CTMS represents a shift from traditional practices used to hire, compensate, and develop Federal civil service employees and is designed to adapt to changes in cybersecurity work, the cybersecurity talent market, and the Department's cybersecurity mission. CTMS will modernize and enhance DHS's capacity to recruit and retain mission-critical cybersecurity talent. With CTMS, DHS is creating a new type of Federal civil service position, called a qualified position, and the cadre of those positions and the individuals appointed to them is called the DHS Cybersecurity Service (DHS-CS). CTMS will govern talent management for the DHS-CS through specialized practices for hiring, compensation, and development. Individuals selected to join the DHS-CS will be provided with a contemporary public service career experience, which emphasizes continual learning and contributions to DHS cybersecurity mission execution. This rulemaking adds regulations to implement and govern CTMS and the DHS-CS.
This rule is effective on November 15, 2021. Comments must be received on or before December 31, 2021.
You may submit comments, identified by docket number DHS-2020-0042, using the Federal rulemaking portal at
For more than a decade, the U.S. Department of Homeland Security (DHS) has encountered challenges recruiting and retaining mission-critical cybersecurity talent. To address those challenges, DHS has re-envisioned Federal civilian talent management for 21st-century cybersecurity work by designing an innovative approach to talent management: The Cybersecurity Talent Management System (CTMS). DHS is establishing CTMS under the authority in section 658 of Title 6 of the United States Code (U.S.C.), which authorizes DHS to create a new approach to talent management exempt from major portions of existing laws governing talent management for much of the Federal civil service.
CTMS is mission-driven, person-focused, and market-sensitive, and it features several interrelated elements, based on leading public and private sector talent management practices. Importantly, CTMS is also based on core Federal talent management principles related to upholding merit, prohibiting certain personnel practices, advancing equity, and providing equal employment opportunity. CTMS is designed to modernize and enhance DHS's capacity to recruit and retain individuals with the skills, called qualifications, necessary to execute the DHS cybersecurity mission. CTMS is also designed to adapt to changes in cybersecurity work, the cybersecurity talent market, and the DHS cybersecurity mission, even as technology, sought-after expertise, and work arrangements change.
With CTMS, DHS is creating a new type of Federal civil service position in the excepted service, called a qualified position. Qualified positions focus on individuals and individuals' qualifications. The cadre of qualified positions and the individuals appointed to them is called the DHS Cybersecurity Service (DHS-CS). The goal of the DHS-CS is to enhance the cybersecurity of the Nation through the most effective execution of the DHS cybersecurity mission. DHS will use CTMS to hire, compensate, and develop DHS-CS employees to reinforce the values of expertise, innovation, and adaptability.
CTMS will also provide DHS-CS employees with a contemporary public service career experience, which emphasizes continual learning and contributions to DHS cybersecurity mission execution.
To recruit and retain DHS-CS employees, CTMS features interrelated elements that are new processes, systems, and programs that implement new talent management concepts and definitions. Each CTMS element represents a shift from the traditional methods and practices Federal agencies typically use to hire, compensate, and develop civil service talent. Collectively, the CTMS elements form a complete approach to talent management and enable new, specialized talent management practices. CTMS is driven by the DHS cybersecurity mission and informed by internal data about the state of DHS cybersecurity work and talent; it is also informed by external data about trends in the field of cybersecurity and the talent market.
The CTMS elements and their purposes are:
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○ Identifies the set of qualifications necessary to perform the work required to execute the DHS cybersecurity mission.
○ conducts analysis of the cybersecurity talent market to identify and monitor employment trends and leading strategies for recruiting and retaining cybersecurity talent.
○ establishes and administers a work valuation system based on qualifications and DHS cybersecurity work, which DHS uses instead of the General Schedule (GS) or other traditional Federal position classification methods to facilitate systematic talent management and addresses internal equity.
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The CTMS elements rely on new talent management concepts and definitions:
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The Secretary, or the Secretary's designee, leads CTMS and the DHS-CS with assistance from the Cybersecurity Talent Management Board (CTMB). The CTMB comprises DHS officials representing organizations involved in executing the DHS cybersecurity mission and DHS officials responsible for developing and administering talent management policy. Working together, these officials ensure the most efficient operation of CTMS and the most effective management of the DHS-CS. The Secretary, or the Secretary's designee, and the CTMB administer CTMS and manage the DHS-CS.
The dynamic DHS cybersecurity mission drives CTMS. On an ongoing basis, DHS identifies the functions that execute the DHS cybersecurity mission, the cybersecurity work required by those functions, and the set of qualifications necessary to perform that work. The work identified is called DHS-CS work, and the set of qualifications identified are called CTMS qualifications. Under CTMS, qualifications are individuals' cybersecurity skills, which encompass the full array of work-related characteristics and qualities that distinguish talent.
Qualifications are the core of CTMS and its elements, and on an ongoing basis, DHS updates the set of CTMS qualifications to ensure they continue to reflect the collective cybersecurity expertise DHS requires. DHS establishes work and career structures based on CTMS qualifications, and DHS creates qualified positions based on DHS-CS employees' CTMS qualifications. DHS-CS employees execute the DHS cybersecurity mission by applying their CTMS qualifications to perform DHS-CS cybersecurity work. In administering CTMS to recruit and retain DHS-CS employees, DHS emphasizes individuals' CTMS qualifications and their mission impact.
DHS uses CTMS, instead of another Federal personnel system, when a DHS organization requires talent with CTMS qualifications and DHS determines that the recruitment and retention of such talent would be enhanced by the specialized practices of CTMS.
All individuals interested in serving in the DHS-CS must apply, and DHS proactively recruits individuals at all career stages, from those just beginning a career in cybersecurity to those with years of proven experience working as a cybersecurity technical expert or organizational leader. Recruitment includes proactively communicating with prospective applicants about DHS's unique cybersecurity mission and available public service career opportunities in the DHS-CS.
DHS assesses applicants using standardized instruments and procedures intended to determine the applicants' CTMS qualifications. DHS selects an individual based on the individual's CTMS qualifications.
DHS may appoint a selected individual to a renewable appointment or continuing appointment. A renewable appointment is time-limited, may be renewed multiple times, and may be used for project-based work or other similar purposes. A continuing appointment is not time-limited. The DHS-CS can also include political appointees, called advisory appointees. Regardless of appointment type, new DHS-CS employees are matched with initial assignments based on mission needs and their CTMS qualifications upon appointment.
Compensation for DHS-CS employees includes salaries and additional compensation. DHS provides such compensation in alignment with a CTMS compensation strategy aimed at ensuring sufficiently competitive compensation to recruit and retain the cybersecurity expertise DHS requires. Under CTMS, compensation is based primarily on CTMS qualifications, and DHS has necessary flexibility to adjust aspects of compensation based on market and mission demands.
DHS provides salaries for DHS-CS employees under a market-sensitive salary structure bounded by an overall salary range. This salary range is comprised of a standard range and an extended range for use in limited circumstances. A DHS-CS employee's salary may include a local cybersecurity talent market supplement, analogous to a locality-based comparability payment, to ensure a competitive salary in certain geographic areas.
DHS provides additional compensation for DHS-CS employees mainly in the form of recognition, which includes salary increases called recognition adjustments, cash bonuses called recognition payments, paid time-off called recognition time-off, and honorary awards called honorary recognition. Such recognition is based primarily on DHS-CS employees' mission impact.
CTMS additional compensation also includes payments for special working conditions, which DHS can use to compensate a DHS-CS employee for special working conditions that are determined to be insufficiently accounted for in the employee's salary. For example, such conditions or circumstances include performing certain work involving unusual physical or mental hardship, at unexpected times, or for an uncommon duration of time. Other types of additional compensation available to DHS-CS employees are similar to or the same as existing offerings for many Federal employees: Professional development and training, student loan repayments, allowances in nonforeign areas, as well as traditional Federal employee benefits like holidays, leave, retirement, health benefits, and insurance programs.
Throughout DHS-CS employees' service, DHS considers increasing employees' compensation based primarily on their mission impact. Compensation increases occur mainly through CTMS recognition as either recognition adjustments or recognition payments. CTMS does not feature automatic salary increases or payments; moreover, longevity in position or prior Federal government service are not factors in CTMS compensation.
Each DHS-CS employee's salary is subject to salary limitations, and each DHS-CS employee's aggregate compensation, composed of the employee's salary and certain types of additional compensation, is subject to an aggregate compensation limit. These salary limitations and the aggregate compensation limit implement statutory
Career progression in the DHS-CS is based on enhancement of CTMS qualifications and salary progression resulting from recognition adjustments. DHS guides a DHS-CS employee's career and ensures development of the collective expertise of DHS-CS employees through continual learning, which may include a range of recommended and required learning activities. Continual learning and enhancement of CTMS qualifications are integral to a DHS-CS employee's service in the DHS-CS. New assignment opportunities may be an important part of DHS-CS employees' continual learning and enhancement of CTMS qualifications. Through such assignments, DHS-CS employees are able to learn and perform different types of DHS-CS cybersecurity work and customize contemporary career experiences that maximize both their qualifications and their impact on the DHS cybersecurity mission.
This rulemaking adds new part 158 to Title 6 of the Code of Federal Regulations (CFR) to implement and govern CTMS and the DHS-CS. New part 158 contains several subparts setting forth the interrelated elements of CTMS that function together as a complete, and innovative, approach to talent management.
From FY 2016 through FY 2020, DHS received approximately $49 million of appropriated funding to design and establish CTMS and the resulting DHS-CS. The major costs of CTMS and the DHS-CS are: (1) The cost of talent management infrastructure necessary for the Office of the Chief Human Capital Officer (OCHCO) to design, establish, and prepare to administer CTMS; and (2) the cost of compensating DHS-CS employees hired by DHS organizations using CTMS.
In FY 2021, OCHCO received approximately $13 million of appropriated funding to both finalize the design of CTMS and to establish CTMS. For FY 2022, DHS requested that funding be increased to approximately $16 million both to launch and administer CTMS and to support the management of an expanding population of DHS-CS employees.
The primary benefit of this rule is to ensure the most effective execution of the DHS cybersecurity mission by establishing CTMS to enhance DHS's capacity to recruit and retain cybersecurity talent in the new DHS-CS.
This rulemaking does not directly regulate the public.
On December 18, 2014, Congress added a new section to the
This rule implements 6 U.S.C. 658 and establishes a new talent management system designed based on DHS's dynamic cybersecurity mission. Use of the new system addresses DHS's historical and ongoing challenges recruiting and retaining mission-critical cybersecurity talent.
To implement the authority in 6 U.S.C. 658, Congress requires the Secretary “shall prescribe regulations” and to do so in coordination with the Director of the Office of Personnel Management (OPM).
DHS is promulgating this rule as an interim final rule because it is a matter relating to agency management or personnel that is exempt from the rulemaking requirements of the Administrative Procedure Act (APA). Rulemaking requirements of the APA include issuing a notice of proposed rulemaking, providing an opportunity for public comment, and an effective date not less than 30 days after publication of the rule.
Although this rulemaking is exempt from the rulemaking requirements of the APA, DHS is seeking public comments on the innovative talent management system. Interested persons are invited to participate in this rulemaking by submitting written comments as described in VI. Public Participation and Request for Comments of this document.
Cybersecurity is a matter of homeland security and one of the core missions of DHS. For more than a decade, DHS has encountered challenges recruiting and retaining mission-critical cybersecurity talent. As cybersecurity threats facing the Nation have grown in volume and sophistication, DHS has experienced spikes in attrition and longstanding vacancies in some cybersecurity positions, as well as shortages of certain critical and emerging cybersecurity skills.
In response to DHS's historical and ongoing challenges recruiting and retaining cybersecurity talent, Congress granted the Secretary the authority in 6 U.S.C. 658 to ensure DHS improves its ability to recruit and retain mission-critical cybersecurity talent. Legislative history indicates that Congress granted the authority in 6 U.S.C. 658 in response to a report by the Secretary's Homeland Security Advisory Council (HSAC) recommending DHS receive additional talent management flexibilities similar
The language codified at 6 U.S.C. 658 mirrors the language in 10 U.S.C. 1601-1603, enacted in 1996 for the Department of Defense (DOD), that authorizes DOD's Defense Civilian Intelligence Personnel System (DOD DCIPS).
Once granted the authority to create a new cybersecurity talent management system free from existing requirements and practices governing Federal talent management, DHS formed a specialized team in early 2016 to design a new cybersecurity talent management system capable of addressing DHS's recruitment and retention challenges. Based on the authority in 6 U.S.C. 658 and DHS's understanding of both the cybersecurity talent landscape and existing Federal talent management practices, DHS concluded it could—and it must—re-envision talent management for 21st-century cybersecurity work. As outlined in required reports to Congress
The authority in 6 U.S.C. 658 allows DHS to create a new talent management system exempt from many existing laws governing Federal civilian talent management. Specifically, the Secretary may designate and establish “qualified positions” in the excepted service, appoint individuals to those positions, and compensate appointed individuals.
The language of 6 U.S.C. 658 uses terms that invoke fundamental talent management concepts. Importantly, the exemption from classification means that DHS can choose how to describe cybersecurity work, including by establishing new constructs to categorize work and new ways of defining positions performing such work, and relatedly, DHS can choose how to value cybersecurity work and positions, including through new compensation structures and practices. DHS has interpreted the authority in 6 U.S.C. 658, as necessary, to fulfill the congressional intent in the legislative history: That DHS address its cybersecurity workforce recruitment and retention challenges and improve its capacity to compete for top cybersecurity talent by exercising greater discretion in hiring and compensating cybersecurity talent.
Although DHS has authority to create a new talent management system free from existing requirements in other laws governing appointment, number, classification, and compensation of Federal employees, Congress provided a few requirements and parameters for exercising that authority. The following discussion in III.A.1 through III.A.3 of this document explains the scope of the Secretary's authority to create a new talent management system.
Under 6 U.S.C. 658, DHS has authority to both designate and establish qualified positions. Section 658(a)(5) defines “qualified position” as “a position, designated by the Secretary for the purpose of this section, in which the incumbent performs, manages, or supervises functions that execute the responsibilities of the Department relating to cybersecurity.” Section 658(b)(1)(A)(i) gives authority to “establish” qualified positions and describes qualified positions as positions in the excepted service that the Secretary determines necessary to carry out the responsibilities of the Department relating to cybersecurity. The authority to designate qualified positions includes determining the purpose and use of such qualified positions, as the Secretary determines necessary, for executing DHS's cybersecurity responsibilities.
The authority to designate and establish qualified positions applies without regard to any other provisions of law relating to the number or classification of employees.
Under the exemption relating to classification of employees,
Under the exemption relating to classification of employees,
The authority to designate and establish qualified positions and the exemptions from existing laws provides the Secretary broad discretion to determine how to create and use qualified positions for purposes of carrying out the responsibilities of DHS relating to cybersecurity. In particular, the exemption relating to classification of employees means DHS may determine the use of qualified positions and create such positions as new positions in the excepted service without regard to existing definitions of positions, or how the concept of position is currently used, in management of Federal employees.
As discussed subsequently in III.B of this document, main factors contributing to DHS's challenges recruiting and retaining cybersecurity talent are the focus of existing Federal talent management practices on narrowly-defined and mostly-static jobs or positions instead of individuals and their skills, as well as the inability of current Federal classification methods to effectively describe and account for individuals' cybersecurity skills. Therefore, as discussed further in IV.A.1 of this document, DHS is using the Secretary's broad authority and discretion for designating and establishing qualified positions, and the exemptions from existing laws, to create a new type of Federal civil service position based on individuals and their skills necessary for executing the DHS cybersecurity mission. To do this, DHS is designing CTMS with new processes, systems, and programs to create and use qualified positions based on the DHS cybersecurity mission and individuals' skills necessary to execute that mission. Those processes, systems, and programs are called CTMS elements and include a new work valuation system.
Under 6 U.S.C. 658, DHS has authority to create new hiring processes for qualified positions without regard to existing requirements and processes for hiring Federal civilian employees. Section 658(b)(1)(A)(ii) gives the Secretary authority to appoint an individual to a qualified position and, under 6 U.S.C. 658(b)(1)(B), this
The exemption relating to appointment of employees means DHS may appoint individuals to qualified positions without regard to the Title 5 hiring requirements and processes, including procedures for accepting and reviewing applications, making selections, and appointing individuals to positions.
The exemption relating to classification of employees, discussed previously, means DHS may also appoint individuals to qualified positions exempt from the GS position classification system and other work valuation systems relying on traditional position classification concepts and methods. In the context of appointments, Chapter 51 and implementing regulations and policy dictate elements of the hiring process for GS positions. For example, OPM classification and qualification standards, policies, and processes
As discussed subsequently in III.B of this document, main factors contributing to DHS's challenges recruiting and retaining cybersecurity talent are the lack of focus of existing Federal talent management practices on individuals and their skills, as well as fierce competition for those individuals and their skills. Therefore, as discussed further in IV.C of this document, DHS is using the Secretary's appointment authority, and the exemptions from existing laws, to create new hiring processes for qualified positions to recruit and hire individuals with mission-critical skills. To do this, DHS designed strategic recruitment processes based on leading private sector practices and a new skills-based assessment program under a new DHS-specific talent acquisition system.
Under 6 U.S.C. 658(b), DHS has authority to create a new administrative compensation system covering salaries and other types of compensation. Section 658(b)(1)(A)(iii) gives authority to set compensation for individuals in qualified positions. This § 658 compensation authority includes specific salary authority in § 658(b)(2)(A) to fix the rates of basic pay for qualified positions subject to limitations on maximum rates of pay. The § 658 compensation authority also includes specific additional compensation authority in § 658(b)(3)(A) to provide compensation in addition to basic pay, including benefits, incentives, and allowances.
The § 658 compensation authority applies without regard to any other provisions of law relating to the classification or compensation of employees.
In addition to laws establishing the GS pay system, the exemption relating to compensation of employees exempts the § 658 compensation authority from other provisions of law relating to compensation, which include: Provisions in 5 U.S.C. Chapter 53 establishing and governing other pay systems; premium pay provisions in 5 U.S.C. Chapter 55 and the minimum wage and overtime pay provisions of the Fair Labor Standards Act (FLSA); provisions in Title 5 regarding monetary awards, incentives, and certain differentials; the limitation on annual aggregate compensation in 5 U.S.C. 5307; and provisions in 5 U.S.C. Chapter 61 governing work schedules, which impacts compensation, especially salary and leave.
The § 658 compensation authority does provide parameters for exercising that authority specific to providing basic pay and providing additional compensation, and those parameters depend on identifying positions that are “comparable” to qualified positions designated by the Secretary. For § 658 basic pay, the Secretary must identify comparable positions in DOD and their associated rates of pay, and then fix rates of basic pay for individuals in qualified positions “in relation to” those DOD rates of pay.
The language of, and direction in, the § 658 basic pay authority and the § 658 additional compensation authority is ambiguous, including the implicit initial requirement to identify “comparable positions.” Statutory language for Federal compensation systems generally is not straight-forward nor unambiguous, and the responsibility of resolving ambiguities in the Federal compensation system context has been characterized as inherently complex.
Section 658 does not define or identify comparable positions in DOD, comparable positions authorized by Title 5, nor what makes such positions “comparable” to qualified positions. As mentioned previously, and discussed in IV.A of this document, DHS is using the Secretary's broad authority and discretion for designating and establishing qualified positions to create qualified positions as a new type of Federal civil service position based on the DHS cybersecurity mission and individuals' skills necessary to execute that mission. As such, there are no existing positions in DOD nor existing positions authorized by Title 5 that are obvious “comparable positions” to this new type of position for the purposes of implementing the § 658 basic pay authority and the § 658 additional compensation authority. Consequently, DHS must determine which positions in DOD, and which positions authorized by Title 5, are comparable to this new type of Federal civil service position.
DHS interprets “comparable positions” to mean positions that have characteristics in common with a qualified position. A dictionary definition of the term “comparable” can mean “similar” or “capable of being compared;” however, only the “similar” definition provides guidance.
The main characteristics of a qualified position can be described as a link to the DHS cybersecurity mission and an emphasis on an individual's skills necessary to execute that mission. Thus, “comparable positions” in DOD and authorized by Title 5, are those that also have (1) a link to cybersecurity responsibilities of an agency, and (2) an emphasis on an individual's skills necessary to perform cybersecurity work. Some positions in DOD and some positions authorized by Title 5 have these characteristics in common with qualified positions, and thus are “comparable” to qualified positions. Note that positions classified using traditional Federal position classification methods, including the GS position classification system, do not emphasize an individual's skills. As explained in III.B.2 of this document, traditional Federal position classification primarily focuses on the work of a position and only minimally accounts for the skills an individual brings to the work of a position and how such skills may influence the performance of work.
Positions in DOD that have or could have a link to cybersecurity responsibilities and an emphasis on an individual's skills, and thus are comparable positions in DOD for purposes of implementing the § 658 basic pay authority, include the following eleven types of positions:
• Senior Level/Scientific or Professional (SL/ST) positions under 5 U.S.C. 5376;
• Senior Executive Service (SES) positions under 5 U.S.C. Chapter 31, Subchapter II;
• Experts and consultants positions under 5 U.S.C. 3109;
• Critical pay positions under 5 U.S.C. 5377;
• DOD CES positions under 10 U.S.C. 1599f;
• DOD DCIPS positions under 10 U.S.C. 1601
• DOD highly qualified experts (DOD HQE) positions under 5 U.S.C. 9903;
• Intelligence Community highly qualified experts (IC HQE) under 50 U.S.C. 3024(f)(3)(A)(iii);
• Intelligence Community (IC) critical pay positions under 50 U.S.C. 3024(s);
• Scientific and Technology Reinvention Laboratories (STRL) positions under 10 U.S.C. 2358c; and
• Pilot cybersecurity professional positions under section 1110 of the
Positions “authorized by [T]itle 5,” while not clearly defined, at least include positions specifically authorized in Title 5 provisions. Five of the eleven types of comparable positions in DOD are also authorized in Title 5 provisions. Thus, positions authorized by Title 5 that have or could have a link to cybersecurity responsibilities and an emphasis on an individual's skills, and are therefore comparable positions authorized by Title 5 for purposes of implementing the § 658 additional compensation authority, include at least the following types of positions:
• SL/ST positions under 5 U.S.C. 5376;
• SES positions under 5 U.S.C. Chapter 31, Subchapter II;
• Experts and consultants positions under 5 U.S.C. 3109;
• Critical pay positions under 5 U.S.C. 5377; and
• DOD HQE positions under 5 U.S.C. 9903.
It is important to note that the eleven types of comparable positions are each comparable to a qualified position. As such, a qualified position is simultaneously comparable to each of these eleven types of comparable positions. This one-to-many relationship between a qualified position and the eleven types of comparable positions affects how DHS interprets and implements the § 658 basic pay authority and the § 658 additional compensation authority, as discussed in the following two sections, III.A.3.(b) Basic Pay and III.A.3.(c) Additional Compensation.
Section 658(b)(2)(A) provides the Secretary basic pay authority and parameters for exercising that authority by requiring the Secretary fix rates of basic pay for qualified positions “in relation to the rates of pay provided for employees in comparable positions in the Department of Defense and subject to the same limitation on maximum rates of pay established for such employees by law or regulation.” This authority to fix rates of basic pay is authority to create and administer a new salary system with a salary range and policies for setting and adjusting salaries.
To ensure salaries under the new salary system are set in relation to the rates of pay provided for employees in comparable positions in DOD,
Rates of pay are organized as pay ranges with a minimum rate and maximum rate. The rates of pay provided for the eleven types of comparable positions in DOD are nine different pay ranges established in statute and DOD implementing documents. Because a qualified position is simultaneously comparable to each type of comparable position in DOD, all nine pay ranges are relevant in applying the “in relation to” requirement. The nine pay ranges for the eleven types of comparable positions in DOD are as follows:
DHS interprets the “in relation to” requirement to mean that the Secretary has discretion to establish and operate a new salary system within the boundaries provided by the nine rate ranges for the eleven types of comparable positions in DOD. Congress has used a similar “in relation to” requirement in other compensation authorities, and courts have held that such a requirement provides boundaries for determining appropriate salaries under a compensation authority.
DHS determines that the boundaries of the new salary system, as provided by the nine rate ranges for the eleven types of comparable positions in DOD, may be from no minimum to 150 percent of EX-I or no maximum. The nine rate ranges, presented in Table 1: Rate Ranges for Comparable Positions in DOD, have several minimum rates, which start at no minimum, and several maximum rates, which range up to 150 percent of EX-I and no maximum. As discussed subsequently in III.B of this document, the competitiveness of compensation, especially salary, is a main factor contributing to DHS's challenges recruiting and retaining cybersecurity talent. Therefore, as discussed further in IV.E.3 of this document, the Department is using the highest maximum rates for the upper boundary for the new salary system.
To ensure salaries under the new salary system are subject to the same limitations on maximum rates for employees in comparable positions in DOD established by law or regulation,
Just as 6 U.S.C. 658 does not identify comparable positions in DOD, it does not prescribe or identify the “limitations on maximum rates of pay” for those comparable positions. Thus, to implement the “the same limitations on maximum rates” requirement in 6 U.S.C. 658, DHS must interpret the phrase “limitations on maximum rates” and apply it using the eleven types of comparable positions in DOD.
DHS interprets “limitations on maximum rates” to mean salary caps. Congress generally uses the term “limitation” within compensation statutes to mean a pay or salary cap. U.S. Code sections using the term “limitation” in a compensation context indicate that the term means an amount cap.
DHS interprets the “same limitations on maximum rates” requirement to mean that the new salary system is subject to the same salary caps applicable to the eleven types of comparable positions in DOD. A maximum rate for a rate range serves as a salary cap. As shown previously in Table 1, the pay ranges for the eleven types of comparable positions in DOD each have at least one maximum rate, except the pay range for pilot cybersecurity professional positions does not include a maximum rate. For the comparable positions in DOD that have more than one maximum rate, only the highest rate serves as a true salary cap because the lower maximum rate can be superseded under certain circumstances, whereas the higher rate serves as the absolute limit for salaries in that rate range. As such, comparable positions in DOD have six different salary caps based on their highest maximum rate. Because a qualified position is simultaneously comparable to each type of comparable position in DOD, all six salary caps are relevant in applying the “same limitations on maximum rates” requirement. The six relevant salary caps for the eleven types of comparable positions in DOD are as follows:
Because the new salary system must set salaries subject to the “same” limitations on maximum rates for employees in comparable positions in DOD, each of the six salary caps applies to the new salary system. Congress uses the plural term “limitations” in the § 658 basic pay authority, which indicates Congress contemplated, or at least accounted for, the possibility of more than one salary cap; however, Congress is silent on how multiple salary caps might apply to the new salary system.
With the Secretary's broad authority and discretion for designating and establishing qualified positions, determining comparable positions in DOD, establishing a salary system within expansive boundaries, and identifying salary caps to apply to the new salary system, it follows that the Secretary also has implicit authority and discretion for how to apply the six applicable salary caps. In exercising this authority and discretion, the Secretary must ensure the new salary system is subject to the “same” salary caps as comparable positions in DOD, and as such, DHS is applying all six salary caps to the new salary system, as discussed further under IV.E.3 of this document.
Section 658(b)(3)(A) provides the Secretary discretionary additional compensation authority and parameters for exercising that authority by requiring that any discretionary additional compensation for employees in qualified positions, must be “consistent with, and not in excess of the level authorized for, comparable positions authorized by [T]itle 5, United States Code.” Section 658(b)(3)(B) also separately mandates one type of additional compensation, allowances in nonforeign areas, and also mandates that employees in qualified positions are eligible for such allowances under 5 U.S.C. 5941 on the same basis and to the same extent as if the employees were covered under section 5941.
The § 658 additional compensation authority for both discretionary additional compensation and the separate, mandatory allowances in nonforeign areas is exempt under 6 U.S.C. 658(b)(1)(B) from any other laws relating to compensation.
To provide discretionary additional compensation that is consistent with comparable positions authorized by Title 5, DHS must interpret this ambiguous “consistent with” requirement, and apply it using the five types of comparable positions authorized by Title 5. As discussed previously in III.C.3 of this document, comparable positions authorized by Title 5 include SL/ST, SES, Experts and Consultants, Critical Pay, and DOD HQE positions.
Based on Congress's choice of punctuation and syntax, it is clear that discretionary additional compensation must be consistent with comparable positions authorized by Title 5. Section 658(b)(3)(A) directs that any discretionary additional compensation be “consistent with, and not in excess of the level authorized for, comparable positions authorized by [T]itle 5.” In section 658(b)(3)(A), the phrase “and not in excess of the level authorized for” is set aside by commas and is a non-essential clause that is not necessary for reading the rest of the sentence.
(c) Additional Compensation, Incentives, and Allowances—(1) Employees in defense intelligence component positions may be paid additional compensation, including benefits, incentives, and allowances, in accordance with this subpart if, and to the extent, authorized in regulations prescribed by the Secretary of Defense. (2) Additional compensation under this subsection shall be
S. 1745 (104th Congress 2d Session, July 10, 1996), Sec. 1132 (proposed for 10 U.S.C. 1590(c)) (emphasis added); H.R. 3230 (104th Congress 2d Session, July 10, 1996), Sec. 1132 (proposed for 10 U.S.C. 1590(c) (also providing for allowances while stationed outside the continental U.S. or in Alaska tied to the allowance under 5 U.S.C. 5941) (emphasis added).
Neither 6 U.S.C. 658 nor the legislative history explain or identify how compensation can be consistent with a position. A dictionary definition of the phrase “consistent with” signals that the phrase does not require sameness.
Moreover, most additional compensation provided under Title 5 depends not on an individual's position, but on whether the individual is an “employee,” as defined in Title 5. Under Title 5, most types of additional compensation are available to an employee, regardless of the employee's type of position.
Although the language of the “consistent with” requirement is ambiguous and confusing, the entire context of 6 U.S.C. 658 indicates that the “consistent with” requirement can be satisfied by basing additional compensation on authorities in Title 5.
Thus, DHS interprets the “consistent with” requirement as being satisfied by ensuring any discretionary additional compensation is based on Title 5 authorities, and those Title 5 authorities are provisions regarding any type of additional compensation. In 6 U.S.C. 658(b)(3)(A), Congress identifies three types of additional compensation: Benefits, incentives, and allowances. The terms “benefits,” “incentives,” and “allowances” are not defined in 6 U.S.C. 658, nor in Title 5, but are used in specific chapters, subchapters, and sections of Title 5,
DHS understands this responsibility to base any discretionary additional compensation on Title 5 provisions as providing DHS discretion over which, if any, types of additional compensation to provide, as well as how to provide them. A base or foundation
DHS must base any discretionary additional compensation on Title 5 provisions regarding types of additional compensation, and DHS may combine and streamline such provisions as long as it is clear which specific Title 5 provisions serve as the base or foundation for discretionary additional compensation. As discussed subsequently in III.B of this document, the current inability to quickly construct and nimbly adjust competitive total compensation packages is a main factor in DHS's challenges recruiting and retaining cybersecurity talent. Therefore, as discussed further in IV.E of this document, DHS is combining and streamlining several provisions of Title 5 to establish types of additional compensation specific to the new talent management system, as well as providing traditional Federal employee benefits, such as retirement, health benefits, and insurance programs.
To provide additional compensation that is not in excess of the level authorized for comparable positions authorized by Title 5, DHS must identify “the level” that applies for the five types of comparable positions authorized by Title 5. The definite article “the” in 6 U.S.C. 658(b)(3)(A) limits “level” to being a specific level authorized for those comparable positions.
The one, specific level under Title 5 that applies to Title 5 additional compensation for the five types of comparable positions authorized by Title 5 is the aggregate compensation cap in 5 U.S.C. 5307. The aggregate compensation cap limits certain cash payments if, when added to total basic pay, such a payment would cause the employee's annual total pay to exceed level I of the Executive Schedule (EX) or the salary of the Vice President.
Because discretionary additional compensation must not be in excess of the level authorized for comparable positions authorized by Title 5, such additional compensation when added to the salary of an employee in a qualified position may not cause that employee's aggregate compensation to exceed either EX-I or the Vice President's salary. Both annual aggregate compensation cap amounts are relevant in applying “the level” to discretionary additional compensation for qualified positions because both cap amounts apply for the five types of comparable positions authorized by Title 5, and a qualified position is simultaneously comparable to each such type of comparable position.
With the Secretary's broad authority and discretion for designating and establishing qualified positions, for determining comparable positions authorized by Title 5, for deciding whether to provide discretionary additional compensation, including what types and how to provide them, and for identifying the aggregate compensation cap as the level for such additional compensation, it follows that the Secretary also has implicit authority and discretion for how to apply the two cap amounts. In exercising this implicit authority and discretion, the Secretary must ensure that any discretionary additional compensation does not cause aggregate compensation for employees in qualified positions to exceed the applicable amount for that limit, and as such, DHS is applying both annual aggregate compensation cap amounts, as discussed further under IV.E.7 of this document.
To implement the broad authority and discretion in 6 U.S.C. 658, DHS set out to design a cybersecurity talent management system capable of solving DHS's historical and ongoing challenges recruiting and retaining cybersecurity talent. To do so, the specialized design team formed in 2016 analyzed:
• Historical DHS cybersecurity workforce data, including input from current DHS employees and leaders about talent requirements and gaps;
• notable changes to talent management at Federal agencies since the 1970s, including efforts commonly referred to as personnel demonstration projects or alternative personnel or pay systems;
• recommendations since the 1980s from non-profits, academia, and public service experts related to modernizing the Federal civil service and better supporting specialized, technical fields like cybersecurity;
• major trends and market forces affecting contemporary workers in public service and in the field of cybersecurity; and
• leading practices in both the public and private sectors for recruiting and retaining cybersecurity talent.
This analysis confirmed the main factors contributing to DHS's challenges recruiting and retaining cybersecurity talent: (1) The ever-evolving nature of cybersecurity work; (2) an outdated and rigid position classification system; and (3) a generic and inflexible compensation approach based on position classification. Constant, often unpredictable, changes in cybersecurity work require a focus on individuals and their skills instead of a focus on narrowly-defined and mostly-static jobs or positions created for predictable, stable work. Significantly, DHS organizations struggle to effectively describe cybersecurity work using outdated and rigid position classification methods designed to apply generically across government and myriad fields of expertise. DHS organizations also struggle to competitively compensate employees using generic and inflexible compensation structures that are closely linked to those classification methods.
The following discussion in III.B.1 through III.B.3 of this document explains these main factors and DHS's need for a new approach to cybersecurity talent management.
To adequately accommodate the ever-evolving nature of cybersecurity work, DHS must design and operate a new talent management system with a greater focus on individuals and individuals' skills instead of focusing on narrowly-defined and mostly-static jobs or positions. It is important to note that the term “skills,” as used in this document, encompasses a full array of knowledge, skills, abilities, behaviors, aptitudes, competencies, and other characteristics and qualities that distinguish talent.
Cybersecurity work, including the work necessary to execute the dynamic DHS cybersecurity mission, constantly changes as technologies and threats change. Cybersecurity work is knowledge work that requires individuals to apply their skills to solve problems and achieve outcomes, often in unpredictable ways. As cybersecurity work changes, both the skills necessary to perform that work and how those skills are applied to perform that work also change. With cybersecurity work, as with some other types of knowledge work, an individual, because of that individual's specific skills, can have a significant influence on how work activities and tasks are performed as well as the quantity and quality of resulting outcomes for the organization.
Additionally, cybersecurity work is intrinsically multidisciplinary, requiring individuals with a variety of skills associated with multiple academic disciplines and areas of professional specialization. Cybersecurity work is frequently performed in a team format in which individuals combine, and recombine, a variety of skills to generate effective, and potentially novel, solutions to problems. The manner in which they apply their collective skills is unique to the circumstances of each problem and cannot always be anticipated or described in advance. This collaborative work is often performed on an
Notably, there is no singular or standard cybersecurity career path, and work arrangements for cybersecurity talent continue to change. For some contemporary workers, a 30-year Federal career is not desirable, and it is increasingly common for individuals to have careers with multiple significant shifts between employers, fields of work, and types of jobs.
To succeed amidst such constant changes in cybersecurity work, individuals with cybersecurity skills look for career opportunities that allow them to continually learn in order to keep their expertise current and to acquire new skills.
Currently, the demand for cybersecurity talent is high and the supply of cybersecurity talent is low, with studies continuing to document and project dramatic critical skills shortages in terms of hundreds of thousands of employees.
Private sector employers have adjusted to the evolving nature of cybersecurity work, careers, and work arrangements by adopting new person- and skill-focused talent management practices that enable them to compete for critical talent. Such new practices include: Proactive recruitment to identify and seek out individuals who could be successful at cybersecurity work, even if they have never held a job in the field; eliminating traditional job requirements, like academic degrees, to avoid unnecessarily limiting applicant pools; and providing training to help employees keep skills current.
DHS can address its historical and ongoing challenges recruiting and retaining cybersecurity talent by designing a new talent management system with a focus on the individual and individuals' skills. To do so, DHS must create qualified positions based on individuals and skills. DHS must design and operate recruitment, application, and hiring processes to identify individuals with necessary skills as well as individuals likely to perform DHS cybersecurity work successfully, including those starting their careers who show promise and have an interest in public service. DHS must also design and operate a compensation system providing flexibility to adjust to cybersecurity talent market demands and recognize how employees influence and contribute to the cybersecurity mission. DHS can do this under the authority and exemptions in 6 U.S.C. 658, especially the Secretary's broad authority and discretion for designating and establishing qualified positions and the exemption relating to classification of employees.
Instead of using position classification methods and related talent management
Traditional Federal position classification serves as the foundation for many existing Federal civilian talent management practices and provides structures that influence talent management for much of the Federal civil service across agencies. The design and operation of traditional Federal position classification methods, however, presume that mission requirements, technology, fields of work, and position duties are generally static and stable.
Traditional Federal position classification methods are too rigid and outdated for cybersecurity talent management at DHS because they cannot effectively describe and support the ever-evolving cybersecurity work associated with DHS's dynamic cybersecurity mission. Traditional Federal position classification has been the foundation of most Federal civilian talent management practices since the GS position classification system was established in the Classification Act of 1949,
Traditional Federal position classification primarily focuses on the work of a position and minimally accounts for the individual or the individual's skills, including how the individual's skills may influence the performance of work. For decades scholars and practitioners have discussed the problems with traditional Federal position classification's ability to describe knowledge work,
Additionally, position classification standards, which supply the criteria for classifying positions, describe work as it existed and was performed throughout Federal agencies at the time the standards were developed.
Congress has long recognized the role traditional Federal position classification plays in hampering flexibility and innovation when addressing recruitment and retention challenges. As part of authorizing a series of human capital flexibilities for civilian intelligence organizations in DOD in the 1980s, now consolidated within the DOD DCIPS authority,
The exemption relating to classification in 6 U.S.C. 658 exempts DHS from traditional Federal position classification systems and methods and allows DHS to establish a new work valuation system to serve as a new foundation for new, specialized talent management practices. A new work valuation system must have new structures to adequately describe ever-evolving DHS cybersecurity work. It must also support creating qualified positions based on cybersecurity skills and the individuals with those skills and operating new talent management practices for those positions. Importantly, a new work valuation system is necessary for a new compensation system and must enable and support new practices for providing competitive compensation.
Instead of existing compensation practices linked to traditional Federal position classification, DHS needs a new, market-sensitive salary system and an agile approach to providing other compensation for cybersecurity talent. Current Federal civilian compensation practices under Title 5 authority are designed to apply and be administered across a range of agencies, missions, and types of work.
Current compensation approaches for most positions in the Federal civil service are based on the same core concepts as traditional Federal position classification: Federal work is presumed to be largely predictable and able to be described and valued using the same processes regardless of mission, the nature of the work, or the individual performing the work. Such Federal compensation approaches use traditional Federal position classification structures, including classes and grades, to facilitate systematic management of Federal employees and address internal equity among similar positions across Federal agencies.
As discussed previously, however, cybersecurity work is constantly changing and performance of DHS cybersecurity work depends on individuals with mission-critical skills, which also change as technology and threats change. Moreover, the cybersecurity skills that are the most valuable to DHS today might not be as valuable to DHS in five, ten, or 30 years. For example, DHS, like many cybersecurity employers, now needs individuals with skills related to mobile technology, cloud computing, the Internet of Things, embedded and cyber-physical systems, blockchain, cryptocurrency and ransomware and cyber extortion; the DHS cybersecurity mission did not require all these skills and specializations ten or even five years ago.
Additionally, there is a specific, competitive talent market for cybersecurity that comprises both cybersecurity talent, which is individuals with cybersecurity skills, and cybersecurity employers, including Federal agencies and private sector employers. As discussed previously, the current demand for cybersecurity talent is high, and the supply of cybersecurity talent is low.
In competing for top cybersecurity talent, DHS has the advantage of its unique cybersecurity mission. DHS's cybersecurity mission offers DHS cybersecurity talent the opportunity to work across organizations and with key external partners and stakeholders to identify and mitigate national cybersecurity risks. Unfortunately, DHS cannot currently compete with compensation packages offered by many
In contrast, many private sector employers can offer individuals with cybersecurity expertise competitive starting salaries as well as the possibility of more rapid raises and significant other compensation, such as automatic signing bonuses.
In addition to salaries, compensation in the cybersecurity talent market includes types of other compensation. DHS could offer other compensation using the existing Federal compensation toolset; however, it is both cumbersome to use and ineffective for constructing market-sensitive compensation packages capable of recruiting highly-skilled cybersecurity talent.
The compensation authority in 6 U.S.C. 658, as well as the exemptions relating to classification and compensation, allows DHS to establish a new compensation system to effectively recruit and retain cybersecurity talent by offering competitive compensation. And if DHS is creating a new work valuation system, DHS must create a new compensation approach that is based on that new work valuation system. A new compensation system also must be based on cybersecurity skills, people with those skills, and the value of those skills to DHS. Such an approach to compensation must be informed both by DHS mission needs and trends affecting compensation of individuals with cybersecurity skills in the broader cybersecurity talent market. A new compensation system must provide flexibility to adjust to cybersecurity talent market demands and recognize mission impact, instead of rewarding longevity in position or Federal government service; it must also provide flexibility to consider an individual's total compensation and quickly construct and nimbly adjust a competitive total compensation package.
To address the Department's historical and ongoing challenges recruiting and retaining cybersecurity talent, DHS is re-envisioning talent management for 21st-century cybersecurity work under the authority in 6 U.S.C. 658. The result is CTMS.
CTMS is a mission-driven, person-focused, and market-sensitive approach to talent management. CTMS relies on new concepts and definitions and features interrelated elements, which are new processes, systems, and programs, that are based on leading public and private sector talent management practices.
CTMS is designed to be responsive to the ever-evolving field of cybersecurity and the dynamic DHS cybersecurity mission. This innovative talent management approach is intended to support and remain aligned to the cybersecurity work that executes the DHS cybersecurity mission, even as technology, relevant expertise, and cybersecurity work arrangements change.
The result of this approach to talent management is the DHS-CS. The DHS-CS comprises qualified positions created under CTMS and employees serving in those positions and covered by CTMS.
The DHS-CS is a new cadre within the broader DHS cybersecurity workforce supporting execution of the DHS cybersecurity mission. The DHS-CS is not intended to replace the DHS civilian employees and United States Coast Guard Military personnel currently performing work relating to cybersecurity.
DHS will first use CTMS and hire the first DHS-CS employees in the Cybersecurity and Infrastructure Security Agency (CISA) and DHS Office of the Chief Information Officer (DHS OCIO). DHS will operate CTMS in work units consistent with its rights and obligations under the Federal Service Labor Management Relations Statute. Additionally, 6 U.S.C. 658(e) prohibits the involuntary conversion of existing DHS employees into the DHS-CS. Accordingly, current DHS employees will not be placed into qualified positions or required to join the DHS-CS. All individuals interested in supporting the DHS cybersecurity mission by serving in the DHS-CS, including current DHS employees, other Federal employees, and private citizens, must apply for employment under CTMS.
DHS is adding a new part 158 to Title 6 of the Code of Federal Regulations to implement and govern CTMS and the DHS-CS. Part 158 contains several subparts setting forth the interrelated CTMS elements that function together as a complete talent management system. The subparts and sections in part 158 contain internal cross-references indicating where one element of the system influences another element.
Subparts A and B of part 158 address the new approach to talent management, new talent management concepts and CTMS-specific definitions, and the
New part 158 establishes CTMS and the DHS-CS and the policy framework for both. Part 158 sets the parameters for how DHS will administer CTMS and manage the DHS-CS. Internal DHS policy implementing part 158 will provide operational detail. Part 158 implements the Secretary's authority in 6 U.S.C. 658 and it is the Secretary or the Secretary's designee who establishes and administers CTMS and establishes and manages the DHS-CS. Part 158 also makes clear that it is the Secretary or the Secretary's designee who establishes and administers the CTMS elements, while it is the “Department” that operates the elements. As defined in § 158.104, the term “Department” means the Department of Homeland Security. In internal DHS policy implementing part 158, the Secretary will, as necessary, delegate authority and designate and delineate roles and responsibilities for specific DHS organizations and officials.
Subpart A in new 6 CFR part 158 addresses the design, establishment, and coverage of CTMS and the DHS-CS, the authority for part 158, and new talent management concepts and CTMS-specific definitions. Subpart B in new part 158 addresses the DHS-CS and sets out the main aspects of the DHS-CS and employment in the DHS-CS.
Part 158, subpart A, General Provisions, contains regulations addressing the design and establishment of CTMS. CTMS encompasses the definitions and processes, systems, and programs established under part 158. As stated in § 158.101, CTMS is designed to recruit and retain individuals with the qualifications necessary to execute the DHS cybersecurity mission. CTMS is also designed to adapt to changes in cybersecurity work, the cybersecurity talent market, and the DHS cybersecurity mission.
Along with CTMS, DHS is establishing the DHS-CS.
The adaptable design of CTMS enables DHS to manage the DHS-CS with a focus on mission-critical qualifications, even as cybersecurity work, the cybersecurity talent market, and the DHS cybersecurity mission change.
As discussed previously in III.A of this document, the authority in 6 U.S.C. 658, especially the authority and discretion for designating and establishing qualified positions and the exemption from laws relating to classification, enable DHS to create this new mission-driven, person-focused, and market-sensitive approach. As also discussed previously in III.B, DHS needs this new approach for 21st-century cybersecurity work and to address DHS's challenges recruiting and retaining cybersecurity talent.
Under part 158, “qualified position” means CTMS qualifications and DHS-CS cybersecurity work, the combination of which is associable with an employee.
DHS is creating qualified positions as a new type of Federal civil service position with a focus on individuals and qualifications under the Secretary's authority and discretion for designating and establishing qualified positions and the exemption from laws relating to classification in 6 U.S.C. 658. DHS is not using existing types of positions defined under Chapter 51 position classification, or processes from Title 5 or other laws, to create qualified positions.
As explained previously in III.C.1 of this document, under the authority and exemptions in 6 U.S.C. 658, DHS may determine the use of qualified positions and create such positions as new positions in the excepted service. DHS may do so without regard to existing definitions of positions, and how the concept of position is currently used, in other Federal talent management systems. DHS designates and establishes qualified positions based on the DHS cybersecurity mission and the skills, or qualifications, individuals must possess to execute that mission.
Designating and establishing qualified positions based on the DHS cybersecurity mission and individuals' qualifications implements the statutory definition and description of qualified position. Section 658 defines a qualified position as a position, designated by the Secretary, in which the incumbent performs, manages, or supervises functions that execute the responsibilities of DHS relating to cybersecurity.
Designating and establishing qualified positions as a new type of position also implements the statutory description of establishing qualified positions, which indicates they may be a type of position or a category that includes several types of positions. The statutory description of establishing qualified positions states
The Secretary or designee designates and establishes qualified positions in the excepted service as the Secretary or designee determines necessary for the most effective execution of the DHS cybersecurity mission.
As mentioned previously, DHS is defining individuals' cybersecurity skills as “qualifications” for purposes of designating and establishing qualified positions. Individuals' cybersecurity skills encompass a full array of characteristics and qualities that distinguish talent.
Under part 158, “qualification,” means a quality of an individual that correlates with the successful and proficient performance of cybersecurity work, such as capability, experience and training, and education and certification.
DHS must create its own qualifications for its unique cybersecurity mission because the field of cybersecurity currently lacks formal, universal standards for cybersecurity skills on which to base CTMS qualifications. As discussed previously in III.B.1 of this document, cybersecurity skills continue to change at a staggering pace because of the ever-evolving nature of cybersecurity work. This rapid change hampers professionalization in the field of cybersecurity, including the establishment of universal standards for cybersecurity skills.
DHS identifies CTMS qualifications as part of the strategic talent planning process.
With the assistance of both industrial and organizational psychologists and DHS cybersecurity experts, DHS identifies, documents, and verifies those qualifications. To ensure CTMS qualifications are appropriately work-related, DHS identifies CTMS qualifications in accordance with appropriate legal and professional guidelines, such as the Uniform Guidelines on Employee Selection Procedures
DHS organizes CTMS qualifications into broad categories defined primarily in terms of capabilities, such as general professional capabilities, cybersecurity technical capabilities, and leadership capabilities. Such categories of capabilities are further defined using proficiency standards or scales. Professional capabilities, such as critical analysis, customer orientation, and effective communication, are required in some capacity for all DHS cybersecurity work. Cybersecurity technical capabilities, such as cybersecurity engineering, digital forensics, and vulnerability assessment, are required in different combinations and at different proficiency levels for specific categories of cybersecurity work. For example, individuals performing entry-level cybersecurity work often require very little proficiency in technical capabilities to be successful, and those performing expert-level, highly-specialized work often require a high level of proficiency in one or more technical capabilities to be successful. Cybersecurity work related to leading people and organizations requires leadership capabilities, such as leading change, leading organizations, and resource management, and DHS cybersecurity senior leadership requires the highest levels of proficiency in such capabilities.
CTMS qualifications derived from the dynamic DHS cybersecurity mission are the core of CTMS and its elements. DHS determines which individuals to recruit and retain based on the specific CTMS qualifications they are likely to possess and have been demonstrated to possess. CTMS qualifications are a key component of the work valuation system, the talent acquisition system, the compensation system, the performance management program, and the career development program, each discussed subsequently in this document.
DHS is using qualifications as the core of CTMS and may do so under the Secretary's authority and discretion for designating and establishing qualified positions and the exemption from laws relating to classification in 6 U.S.C. 658.
In subpart A, § 158.104 defines terms used throughout part 158, several of which incorporate new concepts and are specific to CTMS, like qualified positions and qualifications, discussed
• “Assignment” means a description of a specific subset of DHS cybersecurity work and a specific subset of CTMS qualifications necessary to perform that work, the combination of which is associable with a qualified position. This conceptual definition of assignment connects the performance of particular work to broader qualifications and cybersecurity work of a qualified position. DHS also uses the term assignment in the administration and operation of CTMS to refer to and document the details of a DHS-CS employee's current role related to the cybersecurity mission. A DHS-CS employee's assignment is a description of a specific subset of DHS-CS cybersecurity work, a specific subset of the employee's CTMS qualifications, and how the employee is expected to apply those qualifications to perform that work. Assignments are discussed further in IV.A.2 of this document.
• “CTMB” means the Cybersecurity Talent Management Board that assists the Secretary, or the Secretary's designee, in administering CTMS and managing the DHS-CS. The Secretary or the Secretary's designee appoints officials to serve on the CTMB and designates the CTMB's Co-Chairs.
• “Cybersecurity work” means activity involving mental or physical effort, or both, to achieve results relating to cybersecurity.
• “DHS-CS cybersecurity work” means the cybersecurity work identified based on the DHS cybersecurity mission.
• “DHS cybersecurity mission” encompasses all responsibilities of DHS relating to cybersecurity and is fully described in § 158.201.
• “Mission impact” means a DHS-CS employee's influence on execution of the DHS cybersecurity mission through application of the employee's CTMS qualifications to successfully and proficiently perform DHS-CS cybersecurity work. Mission impact is a factor in DHS-CS employee compensation, performance management, and development. Mission impact is discussed further as part of the compensation system, the performance management program, and the career development program in IV.E and IV.G, of this document respectively.
• “Anticipated mission impact” means the influence DHS anticipates an individual to have on execution of the DHS cybersecurity mission based on the individual's CTMS qualifications and application of those qualifications to successfully and proficiently perform DHS-CS cybersecurity work. Anticipated mission impact of an individual selected for appointment to a qualified position can be a factor in providing compensation for that individual, including initial salary and any recognition payment or recognition time-off offered as a signing bonus. Anticipated mission impact is discussed further as part of the compensation system in IV.E of this document.
• “Mission-related requirements” means characteristics of an individual's expertise or characteristics of cybersecurity work, or both (including cybersecurity talent market-related information), that are (1) associated with successful execution of the DHS cybersecurity mission, and that are (2) determined by officials with appropriate decision-making authority. Mission-related requirements are relevant for addressing emerging or urgent mission circumstances that are not yet reflected in the set of CTMS qualifications, or that may be temporary in nature, but need to be addressed nonetheless. Mission-related requirements are a factor in salary setting and DHS-CS employee recognition under the compensation system, matching DHS-CS employees with assignments under the deployment program, and guiding DHS-CS employee career progression under the career development program, all discussed subsequently.
• “Strategic talent priorities” means the priorities for CTMS and the DHS-CS set by the Secretary or the Secretary's designee on an ongoing basis under § 158.304. The Secretary or the Secretary's designee uses strategic talent priorities for administering CTMS and managing the DHS-CS. Strategic talent priorities inform strategic recruiting under the talent acquisition system, salary setting and DHS-CS employee recognition under the compensation system, matching DHS-CS employees with assignments under the deployment program, and guiding DHS-CS employee career progression under the career development program, all discussed subsequently.
Other terms used throughout part 158 that are not necessarily new, but are defined in § 158.104 specific to CTMS include the following:
• “Additional compensation” is several types of CTMS-specific compensation and is described in § 158.603(c) as recognition, other special pay, and other types of compensation such as leave and benefits. Note that benefits for Federal employees provided under Title 5, such as leave and retirement, are usually treated as separate from Federal pay or compensation, but under 6 U.S.C. 658 benefits are explicitly considered compensation.
• Appointment types under CTMS are: “renewable appointment,” “continuing appointment,” and “advisory appointment.” Each type of appointment is analogous to a type of appointment under Title 5 and is discussed further in IV.C.3. of this document.
• “Cybersecurity talent market” means the availability, in terms of supply and demand, of talent relating to cybersecurity and employment relating to cybersecurity, including at other Federal agencies such as DOD. DHS analyzes the cybersecurity talent market to identify and monitor employment trends and to identify leading strategies for recruiting and retaining cybersecurity talent. That analysis is part of the strategic talent planning process and informs the compensation system, discussed subsequently.
• “Salary” means an annual rate of pay under CTMS and is basic pay for purposes under Title 5. Note that instead of the term basic pay, the term salary is used to describe a DHS-CS employee's annual rate of pay.
• “Talent management” means a systematic approach to linking employees to mission and organizational goals through intentional strategies and practices for hiring, compensating, and developing employees. DHS purposefully uses the term talent management for CTMS because of its focus on people and its association with integrated, strategic approaches to recruitment and retention of talent in alignment with organizational goals. This contrasts with traditional Federal terms, such as human resources and personnel management, which are often characterized by tactical execution of administrative processes and compliance activities. Note, however, that a “talent management action” under CTMS has the same meaning as “personnel action” under Title 5.
• “Work level” means a grouping of CTMS qualifications and DHS-CS cybersecurity work with sufficiently similar characteristics to warrant similar treatment in talent management under CTMS. For example, similar characteristics may include level or type of technical expertise or a level or type of leadership responsibility. Work level is one of the work and career structures established by the new work valuation system, and is discussed further in IV.C.3 of this document.
• “Work valuation” means a methodology through which an organization defines and evaluates the value of work and the value of individuals capable of performing that work. Under CTMS, DHS uses the new person-focused work valuation system instead of the GS or another traditional Federal position classification system based on 5 U.S.C. Chapter 51.
Other terms used throughout part 158 with definitions set forth in § 158.104 include “DHS-CS employee,” and “DHS-CS advisory appointee,” and other terms already defined in law, such as “cybersecurity risk,” “cybersecurity threat,” and “functions,” which are defined in Title 6 of the U.S. Code. An additional term defined in § 158.104 is “CTMS policy,” which is internal DHS policy, and means DHS's decisions implementing and operationalizing the regulations in part 158, and includes directives, instructions, and operating guidance and procedures for DHS employees.
In subpart A, § 158.102 states that 6 U.S.C. 658 is the authority for part 158 and CTMS and explains the scope of that authority. As discussed in III.C of this document, DHS has broad authority to design and establish CTMS as a new approach to talent management and establish the resulting DHS-CS. By statute, the Secretary's authority “applies without regard to the provisions of any other law relating to the appointment, number, classification, or compensation of employees.”
Section 158.102 also explains that some compensation under CTMS is provided in accordance with other provisions of law, including OPM regulations, but that CTMS compensation is only authorized under part 158. Additionally, § 158.102 explains that when some CTMS compensation is provided in accordance with relevant provisions of other laws, including OPM regulations, DHS follows those other provisions to the extent compatible with talent management under CTMS. To maintain the integrity of CTMS, DHS may need to modify application of relevant provisions of other laws regarding compensation for the DHS-CS. This is because some of the terms, or concepts, used in those other relevant provisions are not used under CTMS, and DHS may have to extrapolate between those terms and concepts and CTMS terms and concepts to apply those other provisions.
The regulations in part 158 set up the policy framework for CTMS and the DHS-CS, and DHS administers CTMS and manages the DHS-CS under part 158 and CTMS policy implementing part 158, which is internal DHS policy.
Section 158.102 also includes a preservation of authority clause to ensure it is clear that nothing in part 158 shall be deemed or construed to limit the authority under 6 U.S.C. 658 and any further implementation or interpretation of that authority. If DHS determines any such implementation or interpretation necessitates a change in part 158, DHS will issue an amendment to this rule.
Subpart B, DHS Cybersecurity Service, contains regulations addressing the DHS cybersecurity mission and the DHS-CS. Regulations in subpart B also explain the main aspects of employment for DHS-CS employees, including assignments in the DHS-CS. This subpart provides an overview of CTMS from an applicant or DHS-CS employee perspective and provides references to other rule sections for more information. This subpart explains generally the mission-driven, person-focused, market-sensitive approach that DHS is establishing under the authority and exemptions in 6 U.S.C. 658.
The DHS cybersecurity mission drives talent management under CTMS and § 158.201 describes the DHS cybersecurity mission for purposes of CTMS. This mission encompasses all responsibilities of DHS relating to cybersecurity. It is dynamic to keep pace with the evolving cybersecurity risks and cybersecurity threats facing the Nation and to adapt to any changes in DHS's cybersecurity responsibilities.
As part of establishing CTMS, DHS is also establishing the DHS-CS, the purpose of which is to enhance the cybersecurity of the Nation through the most effective execution of the DHS cybersecurity mission.
DHS designates qualified positions under the deployment program, described in § 158.701.
DHS establishes qualified positions under the talent acquisition system, described in § 158.501, by appointing an individual to a previously designated qualified position.
All employees serving in qualified positions are DHS-CS employees and all DHS-CS employees are in the excepted service. DHS hires, compensates, and develops DHS-CS employees using CTMS.
DHS-CS employees execute the DHS-CS cybersecurity mission by applying their CTMS qualifications to perform the DHS-CS cybersecurity work of their assignments.
DHS provides compensation to DHS-CS employees in alignment with the CTMS compensation strategy, and compensation under CTMS includes both salary and additional
As explained in § 158.205, each DHS-CS employee has one or more assignments during the employee's service in the DHS-CS.
Each DHS-CS employee receive an initial assignment upon appointment to a qualified position.
DHS designates and staffs assignments under the deployment program.
Subpart C, Leadership, sets up the leadership structure for administering CTMS, including the Cybersecurity Talent Management Board (CTMB). Subpart C also contains regulations addressing the influence of the merit system principles on CTMS and the DHS-CS, and establishing strategic talent priorities and DHS-CS core values.
As stated in § 158.301, the Secretary, or the Secretary's designee, is responsible for administering CTMS and managing the DHS-CS. This includes establishing and maintaining CTMS policy implementing part 158.
The Cybersecurity Talent Management Board (CTMB) assists the Secretary, or the Secretary's designee, in administering CTMS and managing the DHS-CS.
The CTMB shapes and monitors CTMS and the DHS-CS. The CTMB periodically evaluates whether CTMS is recruiting and retaining individuals with the qualifications necessary to execute the DHS cybersecurity mission.
The Secretary or Secretary's designee, with assistance from the CTMB, administers CTMS and manages the DHS-CS based on: Talent management principles that address merit system principles, advancing equity, and equal employment opportunity; strategic talent priorities for CTMS and the DHS-CS; and DHS-CS core values. These principles, priorities, and core values are set out in §§ 158.303 through 158.305.
As stated in § 158.303, CTMS is designed and administered based on the core Federal talent management principles of merit and fairness embodied by the merit system principles in 5 U.S.C. 2301(b). While CTMS is an innovative approach to talent management, featuring new, specialized practices not present in many Federal civilian personnel systems, CTMS remains a merit system in which Federal employment is based on merit and individual competence instead of political affiliation, personal relationships, or other non-merit factors. CTMS features elements and practices for acknowledging individuals' qualifications and ensuring individuals are treated equitably based on merit and for ensuring DHS-CS employees are managed in the public interest. Additionally, the prohibited personnel practices in 5 U.S.C. 2302(b) apply to CTMS and the individuals covered by CTMS.
In addition to the influence of the merit system principles and application of prohibited personnel practices, CTMS is designed, and administered, and DHS manages the DHS-CS, in accordance with applicable anti-discrimination laws and policies.
Under § 158.304, the Secretary or Secretary's designee, with assistance from the CTMB, sets strategic talent priorities for CTMS and the DHS-CS on an ongoing basis using a variety of information. Importantly, information from strategic talent planning is used to set strategic talent management priorities. As discussed subsequently, this is information that is generated by the strategic talent planning process and its underlying processes, as well as information from administering CTMS. Setting strategic talent priorities based on the types of information aggregated in strategic talent planning ensures that such priorities reflect the latest strategic information about the DHS cybersecurity mission, cybersecurity work, and the cybersecurity talent market. Other information used in setting strategic talent priorities is information from DHS financial planning and strategic planning, and DHS priorities outside of CTMS and the DHS-CS. Strategic talent priorities are reviewed and updated to ensure that CTMS is administered and the DHS-CS is managed in a manner that addresses the latest DHS priorities, which may include making adjustments based on new mission or market demands.
Under part 158, strategic talent priorities inform overall administration of CTMS and management of the DHS-CS, as well as specifically influence strategic recruiting under the CTMS talent acquisition system, DHS-CS employee recognition under the CTMS compensation system, matching DHS-CS employees with assignments under the CTMS deployment program, and guiding DHS-CS employee career progression under the CTMS career development program.
The Secretary or Secretary's designee, with assistance from the CTMB, also administers CTMS and manages the DHS-CS using DHS-CS core values. As set out in § 158.305, those values are expertise, innovation, and adaptability. These core values reinforce the design and purpose of CTMS: Adapting to changes in cybersecurity work, the cybersecurity talent market, and the
Subpart D, Strategic Talent Planning, contains regulations addressing how DHS establishes and administers a strategic talent planning process to enable CTMS to adapt to changes in cybersecurity work, the cybersecurity talent market, and the DHS cybersecurity mission. The strategic talent planning process comprises several processes and systems by which DHS identifies CTMS qualifications and DHS-CS cybersecurity work, analyzes the cybersecurity talent market, and describes and values DHS-CS cybersecurity work, while also aggregating information to inform the overall administration of CTMS and management of the DHS-CS.
The design of CTMS, especially the strategic talent planning process, implements the Secretary's broad discretion to determine how to create and use qualified positions, discussed previously in III.A.1 of this document.
As discussed previously, CTMS qualifications are the core of CTMS, and CTMS qualifications are derived from the DHS cybersecurity mission. DHS identifies CTMS qualifications as part of the strategic talent planning process. As part of the strategic talent planning process, DHS identifies the functions that execute the DHS cybersecurity mission, as well as the cybersecurity work required to perform, manage, or supervise those functions, and the set of qualifications necessary to perform that work.
Also, as discussed previously, DHS identifies CTMS qualifications in accordance with applicable legal and professional guidelines governing the assessment and selection of individuals. Doing so ensures the qualifications identified are appropriately work-related and do not disproportionately or improperly impact protected individuals or groups.
As part of the strategic talent planning process, DHS conducts analysis of the cybersecurity talent market on an ongoing basis.
DHS conducts analysis of the cybersecurity talent market using generally recognized compensation principles and practices.
DHS uses analysis of the cybersecurity talent market to identify and monitor trends in both employment for and availability of talent related to cybersecurity, including variations in the cost of talent or the cost of living in local cybersecurity talent markets, or both. Local cybersecurity talent markets are described in § 158.612 as the cybersecurity talent markets in geographic areas defined by DHS and are discussed further in IV.D. of this document. DHS analyzes average cost of talent because such cost can vary significantly in different local cybersecurity talent markets. Similarly, variations in cost of living can significantly influence how organizations compensate cybersecurity employees in specific locations. DHS also uses analysis of the cybersecurity talent market to identify leading strategies for recruiting and retaining talent related to cybersecurity.
As part of the strategic talent planning process, DHS uses a new, DHS-specific work valuation system to define and value DHS-CS cybersecurity work, with a focus on qualifications necessary to perform that work.
Like traditional Federal position classification, the CTMS work valuation system is a method of work valuation, but features different core concepts and different practices. The GS position classification system is a system of “job
The CTMS work valuation system is a system of “work evaluation”
The CTMS work valuation system is a person-focused work valuation system that DHS uses to determine the value or worth of a DHS-CS employee to DHS based on the employee's qualifications.
The CTMS work valuation system is based on the set of CTMS qualifications and the DHS-CS cybersecurity work identified in the strategic talent planning process.
DHS uses the work valuation system to establish work and career structures, such as work levels, titles, ranks, and specializations.
DHS uses the work and career structures to organize other elements of CTMS and to ensure those other elements maintain a consistent focus on qualifications. DHS uses such work and career structures to describe and categorize DHS-CS employees, qualified positions, assignments, and cybersecurity work. For example, the description of an individual's qualified position includes a work level, such as early-career or executive, and a title, such as Cybersecurity Specialist or Cybersecurity Executive.
Importantly, DHS uses the work and career structures as part of the CTMS compensation system, discussed subsequently, in determining compensation for individuals in qualified positions with a focus on CTMS qualifications. For example, in setting an individual's initial salary, DHS considers applicable work and career structures, including the individual's work level.
DHS may also use the work and career structures for budget and fiscal purposes related to administering CTMS and managing the DHS-CS.
As discussed in III.A.1 of this document, the authority in 6 U.S.C. 658 to create a new talent management system is exempt from the GS position classification system, and other work valuation systems relying on position classification based on 5 U.S.C. Chapter 51. As such, § 158.405 states that Chapter 51 and related laws do not apply under CTMS or to the DHS-CS or to talent management under CTMS.
DHS aggregates information generated in the processes and systems that are part of the strategic talent planning process in order to inform all other CTMS elements.
For example, information about CTMS qualifications from the strategic talent planning process ensures that the talent acquisition system remains focused on the qualifications most critical for the DHS cybersecurity mission, including newly-identified qualifications that DHS had not recruited and assessed talent for previously. Also, information from analysis of the cybersecurity talent market ensures other elements of CTMS reflect an understanding of the cybersecurity talent market and serve to enable DHS to better recruit and retain top cybersecurity talent for employment in the DHS-CS.
As part of strategic talent planning, DHS also aggregates information from administering CTMS under the other
Subpart E, Acquiring Talent, contains regulations establishing the CTMS talent acquisition system, which involves strategic and proactive recruitment, qualifications assessment, and selection and appointment. The talent acquisition system aligns with DHS's design for creating and using qualified positions under CTMS and implements the appointment authority in 6 U.S.C. 658, discussed previously in III.A.2 of this document. Under that authority, and the exemptions from laws relating to appointment, number, and classification, DHS is creating a new talent acquisition system with a focus on CTMS qualifications, finding individuals who likely possess those qualifications, and hiring those who demonstrate that they do.
The CTMS talent acquisition system provides DHS with an enhanced ability to identify and hire individuals with CTMS qualifications. The talent acquisition system comprises strategies, programs, and processes for strategically recruiting individuals, assessing qualifications of individuals, and considering and selecting individuals for employment in the DHS-CS and appointment to qualified positions.
DHS establishes and administers the talent acquisition system in accordance with applicable legal and professional guidelines governing the assessment and selection of individuals.
Recruiting, assessing, selecting, and appointing talent under the talent acquisition system represents a shift from existing Federal hiring practices for other Federal civil service positions. As discussed previously in III.A.2 of this document, the authority in 6 U.S.C. 658 to create a new talent acquisition system is exempt from any other provision of law relating to appointment of employees, including veterans' preference requirements, as well as other provisions of law relating to number or classification of employees. As such, § 158.502 lists existing laws relating to the process of appointing an individual that do not apply under CTMS, to the DHS-CS, or to talent management under CTMS.
Under the CTMS talent acquisition system, DHS strategically and proactively recruits individuals likely to possess CTMS qualifications.
DHS develops and updates CTMS recruitment strategies based on CTMS qualifications, DHS-CS cybersecurity work, and strategic talent priorities. Developing and updating recruitment strategies in this manner ensures CTMS recruitment efforts remain effective in supporting execution of the dynamic DHS cybersecurity mission and furthering DHS goals, such as the advancement of diversity and inclusion in DHS's cybersecurity workforce.
In developing and implementing CTMS recruitment strategies, DHS may collaborate with other organizations and groups, including other Federal agencies, institutions of higher education, and national organizations such as veterans service organizations. DHS recognizes that such partnerships can be critical to identifying individuals with desired qualifications and encouraging those individuals to apply. As part of diversity and inclusion recruitment efforts, DHS anticipates collaborating with professional associations and institutions of higher education, including historically Black colleges and universities and other minority-serving institutions, including Hispanic-serving institutions, Tribal colleges and universities, and Asian American and Native American Pacific Islander-serving institutions. Through such collaboration, DHS aims to (1) reinforce the design of CTMS as a merit system, which provides equitable treatment; and (2) advance the hiring of people from all backgrounds and representing a diverse set of perspectives, including individuals belonging to traditionally underrepresented or underserved groups. In alignment with Executive Order 13985, CTMS recruitment strategies focus on reaching underrepresented and underserved groups, including Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.
Additionally, collaborating with DOD, the Department of Veterans Affairs, and groups such as veteran service organizations helps DHS to consider the availability of preference eligibles for appointment to qualified positions as required by 6 U.S.C. 658. As discussed previously DHS may create new hiring processes for appointing individuals to qualified positions; however under 6 U.S.C. 658(b)(1)(B), DHS may only appoint an individual to a qualified position after taking into consideration the availability of preference eligibles for appointment to the position.
The requirement in 6 U.S.C. 658 to consider the availability of preference eligibles for appointment is different from veteran preference requirements in the Title 5 that mandates specific priorities, procedures, and rules for preference eligibles in hiring.
Although the § 658 appointment authority is exempt from veterans' preference requirements, the Secretary must consider the availability of preference eligibles for appointment, and DHS intends to honor the public policy purposes of veterans' preference. DHS recognizes that many preference eligibles and veterans likely possess the qualifications needed to support the DHS cybersecurity mission, especially those that received cybersecurity-focused active duty training and experience.
DHS considers the availability of preference eligibles for appointment to qualified positions, and provides such individuals advantage in the CTMS talent acquisition system, through strategic recruitment.
In addition to developing and implementing CTMS recruitment strategies and collaborating with other organizations and groups, DHS uses a variety of other sources to identify individuals or groups of individuals for recruitment.
Under § 158.512, DHS may provide payment or reimbursement to prospective DHS-CS employees for travel to and from pre-employment interviews, which may include participating in an assessment process under the CTMS assessment program. Reimbursement for any such interview expenses are in accordance with existing laws, 5 U.S.C. 5706b and the Federal Travel Regulations at 41 CFR chapters 301-304, governing such reimbursement.
Under the CTMS talent acquisition system, DHS determines individuals' qualifications under the CTMS assessment program and make selections for, and appointments to, qualified positions based on individuals' demonstrated CTMS qualifications.
The CTMS assessment program is designed to efficiently and accurately determine individuals' qualifications.
The assessment program focuses on requiring applicants to demonstrate their qualifications at a particular work level. Applicants choose the work level for which they wish to be considered. For applicants who are experienced cybersecurity professionals, this includes choosing the cybersecurity technical areas in which they are
CTMS assessment processes are formal and multi-part, which means an applicant may need to participate in one or more standardized instruments and procedures intended to measure the applicant's qualifications and proficiency in those qualifications. Such standardized instruments and procedures include a variety of tools. Examples of such standardized instruments and procedures include written knowledge tests, computer adaptive tests, work simulations, and structured interviews.
As part of a CTMS assessment process, DHS also may use demonstrations of qualifications, such as rewards earned from a cybersecurity competition, publication of peer-reviewed cybersecurity research, or a patented cybersecurity invention or discovery. The use of such demonstrations provides additional options for DHS to assess individuals who possess expertise beyond that expected of most applicants and enables rapid assessment of such individuals' qualifications.
DHS develops and administers each assessment process, including those that use standardized instruments and procedures, in accordance with applicable legal and professional guidelines governing the assessment and selection of individuals. Such legal and professional guidelines are the same guidelines mentioned previously that DHS uses to establish and administer the CTMS acquisition system.
In order to maintain the objectivity and integrity of the CTMS assessment program, DHS does not release assessment program materials except as otherwise required by law.
In addition to participating in the CTMS assessment program, any individual interested in employment in the DHS-CS must meet employment eligibility requirements and satisfy certain employment-related criteria.
DHS selects an individual for employment in the DHS-CS based on the individual's qualifications as determined under the CTMS assessment program.
In addition to the providing preference eligibles advantage in the CTMS talent acquisition system through specific strategic recruitment strategies, as previously discussed, DHS again considers the availability of preference eligibles for appointment to qualified positions when selecting an individual for employment in the DHS-CS.
DHS appoints a selected individual to a qualified position under the authority in 6 U.S.C. 658. All such appointments are in the excepted service and an individual who accepts an appointment to a qualified position voluntarily accepts an appointment in the excepted service. No qualified position may be established through the non-competitive conversion of a current Federal employee from an appointment made outside the authority in 6 U.S.C 658.
An appointment under CTMS to the DHS-CS is one of three types: A renewable appointment, a continuing appointment, or an advisory appointment.
DHS may use CTMS renewable appointments to appoint reemployed annuitants and individuals providing uncompensated service, which is gratuitous service.
DHS may also use CTMS appointments to appoint DHS-CS employees being restored to duty.
A DHS-CS employee serves in the same qualified position for the duration of employment in the DHS-CS.
As discussed previously in III.B.1 of this document, there is no singular or standard career path for individuals with cybersecurity skills, and the CTMS talent acquisition system specifically accounts for this by ensuring former DHS-CS employees can easily return to the DHS-CS. The design of CTMS recognizes the possibility that talent might leave the DHS-CS and desire to return to the DHS-CS at a later point in time. To facilitate future service in the DHS-CS by former DHS-CS employees, under § 158.525 DHS aims to maintain communication with former DHS-CS employees and to provide opportunities for former DHS-CS employees to be considered for appointment again to qualified positions. DHS also aims to acknowledge any enhancements to former DHS-CS employees' qualifications while outside of the DHS-CS, which might affect salaries for such former employees upon return to the DHS-CS.
Under § 158.525, a former DHS-CS employee must participate again in the CTMS assessment program unless DHS determines otherwise based on relevant factors. DHS must assess that former DHS-CS employee's qualifications again, unless relevant factors indicate that an assessment is unnecessary. Such assessment ensures that DHS has the latest information about the individual's qualifications, which can influence salary and other aspects of talent management under CTMS. Factors which might make assessment unnecessary include time elapsed since last appointment and similarity of cybersecurity work performed since leaving the DHS-CS. For example, a new assessment would likely be unnecessary if only a few months have passed since the former DHS-CS employee's last appointment to a qualified position.
Appointment to a renewable or continuing appointment of a former DHS-CS advisory appointee, or other political appointee as defined by OPM, may be subject to additional requirements, including coordination with OPM under laws governing conversion of political appointees to non-political excepted service positions. Appointment of a former DHS-CS employee to an advisory appointment is governed by part 158, subpart J.
As required in 6 U.S.C. 658(d), all individuals appointed under CTMS serves an initial service period that constitutes a probationary period of three years beginning on the date of appointment.
Subpart F, Compensating Talent, contains regulations addressing the CTMS compensation system, including the CTMS salary system and CTMS additional compensation. The compensation system implements the compensation authority in 6 U.S.C. 658, discussed previously in III.A.3 of this document. Under that authority in 6 U.S.C. 658 and the exemption from laws relating to classification and compensation, DHS is creating a new compensation system with a focus on CTMS qualifications, individuals with those qualifications, and the value of those qualifications to DHS.
The CTMS compensation system provides DHS with an enhanced ability to establish and adjust overall compensation for the DHS-CS based on the individual's qualifications, national and local cybersecurity talent market trends, and DHS-CS employees' mission impact. The compensation system includes the CTMS salary system and CTMS additional compensation, both discussed subsequently.
DHS establishes and administers the compensation system based on a compensation strategy.
The first goal is to ensure the compensation of DHS-CS employees is sufficiently competitive to recruit and retain individuals possessing CTMS qualifications
The second goal under the CTMS compensation strategy is to value, encourage, and recognize exceptional qualifications and mission impact; excellence and innovation in the performance of cybersecurity work; and continual learning to adapt to evolving cybersecurity risks and cybersecurity threats.
The third goal under the CTMS compensation strategy is to acknowledge the unpredictable nature of cybersecurity work and the expectation that all DHS-CS employees occasionally work unusual hours and extended hours, as needed, to execute the DHS cybersecurity mission, especially in response to exigent circumstances and emergencies.
The fourth goal under the CTMS compensation strategy is to reflect an understanding of the cybersecurity talent market, including leading compensation practices and trends and current work expectations and arrangements, an understanding of the concepts of internal and external equity, and an understanding of the concepts of total compensation and total rewards.
DHS also establishes and administers the compensation system based on information from strategic talent planning, generally recognized compensation principles and practices, and strategic talent priorities. § 158.602. The CTMS compensation strategy, together with the talent market analysis from strategic talent planning, ensures that the compensation system provides a market-sensitive approach to compensation, enabling DHS to better compete for top cybersecurity talent. The generally recognized principles and practices are the same principles and practices, discussed previously, that DHS uses for conducting talent market analysis. Using these principles and practices for the compensation system ensures the design and administration of CTMS compensation addresses DHS organizational goals and complies with legal requirements, including those prohibiting discrimination in compensation.
Compensating DHS-CS employees using a new market-sensitive compensation system guided by a compensation strategy intended to keep DHS competitive when recruiting and retaining cybersecurity talent represents a shift from existing Federal compensation practices for other Federal civil service positions. As discussed previously in III.A.3 of this document, the authority in 6 U.S.C. 658 to create a new compensation system is exempt from any other provision of law relating to compensation of employees, as well as from other provisions of law relating to classification. As such, § 158.605 lists existing laws relating to compensation that do not apply under CTMS, to the DHS-CS, or to talent management under CTMS. The laws listed in § 158.605 include provisions in 5 U.S.C Chapter 53 establishing and governing other pay systems; premium pay provisions in 5 U.S.C. Chapter 55 and the minimum wage and overtime pay provisions of the FLSA; provisions
Compensation for DHS-CS employees is salary and additional compensation.
A DHS-CS employee receives a salary under the CTMS salary system.
In addition to salary, DHS-CS employees, except those providing uncompensated service, may receive additional compensation. As defined in § 158.104, additional compensation is several types of compensation described in § 158.603(c). CTMS additional compensation includes: CTMS recognition, such as recognition payments; other special payments under CTMS; and other compensation provided in accordance with relevant provisions of laws, including leave and benefits. The types of additional compensation are set out in separate sections in subpart F.
CTMS additional compensation implements the discretionary additional compensation authority in 6 U.S.C. 658(b)(3)(a). As previously discussed in III.A.3 of this document, DHS interprets this additional compensation authority as requiring DHS to base any discretionary CTMS additional compensation on Title 5 provisions regarding types of additional compensation, and DHS may combine and streamline such provisions as long as it is clear which specific Title 5 provisions serve as the base or foundation for CTMS additional compensation. As discussed previously in III.B of this document, the current inability to quickly construct and nimbly adjust competitive total compensation packages is a main factor in DHS's challenges recruiting and retaining cybersecurity talent. Therefore, DHS is combining and streamlining several provisions of Title 5 to establish types of additional compensation specific to the new talent management system, as well as providing traditional Federal employee benefits, such as retirement, health benefits, and insurance programs.
For CTMS additional compensation, DHS is creating a new toolset based on Title 5 authorities for additional compensation. The CTMS toolset provides a cohesive set of tools tailored to the mission-driven, person-focused, market-sensitive design of CTMS.
The new toolset has three categories: CTMS recognition, other special pay under CTMS, and other CTMS compensation provided in accordance with relevant provisions of other laws. CTMS recognition, described in §§ 158.630-158.634, comprises three types of additional compensation, which are recognition payments, recognition time-off, and honorary recognition. CTMS recognition is based on Title 5 authorities for cash awards and incentives, performance-based awards, time-off awards, and honorary awards.
The category of other special pay under CTMS comprises four types of additional compensation: CTMS professional development and training, described in § 158.640, based on Title 5 authorities for training and professional development; CTMS student loan repayments, described in § 158.641, based on Title 5 authorities for student loan repayments; CTMS special working conditions payments, described in § 158.642, based on Title 5 authorities for certain payments; and CTMS allowances in nonforeign areas, described in § 158.643, as mandated in 6 U.S.C 658(b)(3)(B).
The category of other CTMS compensation provided in accordance with relevant provisions of other laws includes other traditional types of additional compensation authorized in Title 5, such as holidays, leave, and benefits, described in §§ 158.650-158.655, that DHS is authorizing under 6 U.S.C. 658.
DHS provides additional compensation in alignment with the CTMS compensation strategy and under the separate sections in subpart E that govern each type of additional compensation. Those separate sections, each discussed subsequently, set out the requirements and eligibility for each type of additional compensation, as well as the provisions of Title 5 on which each type of CTMS additional compensation is based.
A DHS-CS employee, except one providing uncompensated service, may receive any type of additional compensation in combination with any other type of additional compensation, subject to the requirements and eligibility criteria in the separate sections governing each type of additional compensation and the CTMS aggregate compensation limit, discussed subsequently.
The CTMS compensation system includes a salary system, which comprises at least one salary structure, a process for providing local cybersecurity talent market supplements, and a framework for administering salary under CTMS.
In addition to the goals of external and internal equity, DHS also establishes and operates the salary system within the boundaries provided by the CTMS salary range.
The CTMS salary range comprises a standard range, which has an upper limit of the Vice President's salary ($255,800 in 2021), and an extended range for use in limited circumstances, which has an upper limit of 150 percent of EX-I ($332,100 in 2021).
The salary range implements the basic pay authority in 6 U.S.C. 658(b)(2)(a) regarding rates of pay. As discussed previously in III.A.3 of this document, DHS interprets this basic pay authority to mean that the boundaries of the new
DHS is setting the upper boundary for the salary system at the Vice President's salary ($255,800 in 2021), with an additional upper boundary of 150 percent of EX-I. As discussed previously in III.A.3 of this document, the rate range for one comparable position in DOD
Because the CTMS salary range implements the boundaries for the CTMS salary system provided by rate ranges for comparable positions in DOD, if the rate ranges for comparable positions in DOD change, DHS adjusts the CTMS salary range as necessary.
The standard range applies unless the Secretary or designee invokes the extended range for specific DHS-CS employees serving in renewable appointments.
To invoke the extended range for specific DHS-CS employees, the Secretary must determine based on the CTMS compensation strategy, that the employee's qualifications, the employee's mission impact, and mission-related requirements warrant adjusting the employee's salary beyond the standard range.
DHS provides salaries to DHS-CS employees under a CTMS salary structure. DHS establishes and administers at least one CTMS salary structure based on the compensation strategy and the same information, principles and practices, and priorities on which the CTMS compensation system is based.
A salary structure is bounded by the CTMS salary range and includes subranges.
A salary structure also incorporates CTMS salary limitations and may incorporate other salary and cost control strategies.
The CTMS salary limitations implement the basic pay authority in 6 U.S.C. 658(b)(2)(a) regarding limitations on maximum rates of pay. As discussed previously in III.A.3 of this document, DHS interprets this basic pay authority to mean that the CTMS salary system is subject to the same salary caps applicable to the eleven types of comparable positions in DOD. Also as discussed previously in III.A.3, the applicable salary caps are six caps ranging from GS-15, step 10 to 150 percent of EX-I, and DHS has discretion for how to apply those six caps to the salary system. The highest salary cap, 150 percent of EX-I, is also the upper boundary for the extended range, and as such is the cap for the entire CTMS salary system. DHS is applying the five remaining salary caps as CTMS salary limitations for the subranges. The CTMS salary limitations are: GS-15, step 10 (excluding locality pay or any other additional pay), EX-IV, EX-II, EX-I, and the Vice President's salary.
DHS may adjust a CTMS salary structure based on the compensation strategy and the same information, principles and practices, and priorities with which DHS establishes and administers the salary structure.
As part of the CTMS salary system, DHS is establishing a process for providing a local cybersecurity talent market supplement (LCTMS).
A local cybersecurity talent market is the cybersecurity talent market in a geographic area that DHS defines based on analysis of the cybersecurity talent market, and that may incorporate the definitions of localities under 5 U.S.C. 5304.
A local cybersecurity talent market supplement percentage is a percentage DHS assigns to a local cybersecurity talent market to increase the amount of salaries for DHS-CS employees provided under a salary structure in that local cybersecurity talent market.
DHS determines whether a LCTMS is necessary in a local cybersecurity talent market based on the compensation strategy and the same information, principles and practices, and priorities on which the CTMS compensation system is based and that DHS uses to establish and adjust a CTMS salary structure.
DHS determines eligibility for a LCTMS under § 158.612 and CTMS policy implementing that section. Under § 158.612, a DHS-CS employee is eligible for a LCTMS if the employee's official worksite is located in a local cybersecurity talent market with an assigned local cybersecurity talent market supplement percentage for the salary structure under which the employee's salary is provided. Thus, a DHS-CS employee's official worksite location and the salary structure for the employee's salary are both factors in eligibility for a LTCMS. DHS may have more than one salary structure, but a LCTMS may not be required for all salary structures to ensure sufficiently competitive salaries. Any LCTMS a DHS-CS employee receives terminates when the employee's official worksite is no longer in a local cybersecurity talent market with an assigned local cybersecurity talent market supplement percentage, or the salary structure under which the employee's salary is provided no longer has an assigned local cybersecurity labor market supplement, or both.
A LCTMS is limited by applicable CTMS salary limitations. A DHS-CS employee may not receive any portion of a LCTMS that would cause that employee's salary to exceed applicable CTMS salary limitations, but may receive the portion of the LCTMS up to the applicable limitations. A DHS-CS employee also cannot receive a LCTMS that would cause the employee's salary to be in the CTMS extended range unless the Secretary invokes the extended range for that employee.
Any LCTMS a DHS-CS employee receives is part of the employee's salary and as such a LCTMS is basic pay for purposes under Title 5, such as civil service retirement. A LCTMS, however, is not basic pay for purposes of determining pay under Title 5 provisions addressing a reduction in pay as an adverse action, and a reduction in salary for a DHS-CS employee because of a change in any LCTMS, including a change in amount or termination of a LCTMS, for that employee is not an adverse action under 5 U.S.C. 7512.
The CTMS salary system includes a framework for salary administration that addresses setting salaries and adjusting salaries under CTMS, and administering CTMS salaries under relevant provisions of other laws.
DHS sets the salary for an individual accepting an appointment to a qualified position within a subrange of a CTMS salary structure as part of selection and appointment of the individual. DHS sets
As discussed previously, CTMS qualifications are the core of CTMS, and setting salary based on qualifications ensures a focus on the value of those qualifications to DHS. Work and career structures group and value qualifications, and work level is one such grouping for purposes of similar treatment in talent management and which addresses internal equity among DHS-CS employees' salaries. DHS determines an individual's CTMS qualifications under the CTMS assessment program and determines applicable work and career structures as part of selection and appointment of the individual.
A goal of the DHS-CS is the most effective execution of the DHS cybersecurity mission, and therefore a DHS-CS employee's mission impact is an important part of the employee's value or worth to DHS. As such the employee's anticipated mission impact is a factor in setting initial salary. DHS determines individuals' anticipated mission impact using information from the application and assessment processes.
Mission-related requirements are relevant for addressing emerging or urgent mission circumstances, and for setting salaries with information about mission-related requirements, such as a need for talent that understands a novel technology related to an urgent cybersecurity threat. Mission-related requirements, as defined in § 158.104, are characteristics of an individual's expertise or characteristics of cybersecurity work, or both, including highly-specialized expertise and cybersecurity talent market-related information, that are associated with successful execution of the DHS cybersecurity mission, and that are determined by officials with appropriate decision-making authority. Strategic talent priorities are part of the design and administration of CTMS and the CTMS compensation system, and setting initial salaries based on such priorities ensures salaries also reflect DHS and CTMS leadership priorities and goals for the DHS-CS.
DHS may set the salary for an incoming DHS-CS employee without regard to any prior salaries of the individual, including any basic pay while serving in a previous Federal appointment and any previous salary as a DHS-CS employee for a returning, former DHS-CS employee.
Under CTMS, DHS adjusts a DHS-CS employee's salary by providing a LCTMS or a recognition adjustment, or both.
A DHS-CS employee may not receive a recognition adjustment that would cause the employee's salary to exceed the CTMS salary range or a CTMS salary limitation applicable to the subrange for that employee's salary.
DHS does not provide DHS-CS employees with any automatic salary increases or any salary increases based on length of service in the DHS-CS or service in any position outside the DHS-CS. CTMS is not a longevity-based approach to talent management, and career progression in the DHS-CS is not based on length of service in the DHS-CS or the Federal government. Providing a recognition adjustment or a LCTMS is the only means for adjusting a DHS-CS employee's salary.
If, however, DHS adjusts a salary structure that results in an increase to the salary minimum for one or more subranges of the salary structure, DHS adjusts the salary for any affected DHS-CS employee.
Under CTMS, a recognition adjustment is not a promotion for any purpose under Title 5.
In order to integrate CTMS salary administration with existing pay administration procedures and infrastructure used by Federal agencies, DHS administers salaries of DHS-CS employees in accordance with relevant provisions of other laws governing pay administration for Federal civil service employees. DHS administers salaries under CTMS in accordance with the 5 CFR part 550 generally and U.S. Code sections enumerated in § 158.622. Because 5 CFR part 550 addresses administration of other types of compensation and not just salary administration, § 158.622 also lists the provisions of 5 CFR part 550 that do not apply to CTMS. Those provisions of 5 CFR part 550 address types of premium pay
DHS also administers DHS-CS employee salaries based on consideration of each employee's work schedule under the CTMS work scheduling system, described in § 158.705 and discussed subsequently,
The CTMS compensation system comprises the CTMS salary system and CTMS additional compensation, and CTMS recognition is a main aspect of both. With CTMS recognition, DHS recognizes and rewards DHS-CS employees, in alignment with the CTMS compensation strategy and CTMS performance management program, based primarily on mission impact.
CTMS recognition includes four types of recognition: Recognition adjustments, recognition payments, recognition time-off, and honorary recognition.
Like recognition adjustments, DHS provides recognition payments, recognition time-off, and honorary recognition, based primarily on a DHS-CS employee's mission impact.
DHS may also use CTMS recognition, in the form of recognition payments and recognition time-off, as part of recruiting new DHS-CS employees. DHS may need to offer a recognition payment as a signing bonus to ensure that an individual's compensation package is sufficiently competitive and to incentivize the individual to serve in the DHS-CS. DHS provides recognition to an incoming DHS-CS employee based on the incoming employee's CTMS qualifications, the incoming employee's anticipated mission impact, mission-related requirements, and strategic talent priorities.
DHS determines eligibility for CTMS recognition under §§ 158.630-158.634 and CTMS policy. As stated in § 158.630, a DHS-CS employee is ineligible to receive CTMS recognition if DHS determines the employee's performance is unacceptable, as defined in 5 U.S.C. 4301(3) or the employee receives an unacceptable rating of record under CTMS performance management, or DHS determines the employee has engaged in misconduct. A DHS-CS employee should only be recognized if the employee's performance is acceptable. Similarly, a DHS-CS employee should not be recognized if engaging in misconduct. For these same reasons, DHS may defer providing recognition if DHS is in the process of determining whether a DHS-CS employee's performance is unacceptable or whether the employee has engaged in misconduct.
In addition to eligibility criteria, CTMS policy will also address requirements for documenting the reason and basis for providing CTMS recognition, appropriate levels of review and approval, and any limitations on recognitions, among other matters necessary for administering CTMS recognition.
CTMS recognition payments, recognition time-off, and honorary recognition are based on Title 5 authorities. As discussed previously in III.A.3 of this document, under the § 658 additional compensation authority DHS may combine and streamline provisions of Title 5 regarding types of additional compensation, as long as it is clear on which specific Title 5 provisions CTMS additional compensation is based. Sections 158.632 through 158.634 list the Title 5 authorities on which CTMS recognition payments, recognition time-off, and honorary recognition are based. Each of these types of recognition is discussed subsequently.
A CTMS recognition payment is a lump-sum payment, an installment payment, or recurring payments of up to a percentage of the receiving DHS-CS employee's salary: Up to 20 percent, or up to 50 percent with approval of the Secretary or designee.
CTMS recognition payments are based on Title 5 authorities providing seven types of cash awards and incentives: 5 U.S.C. 4502 providing cash awards for a suggestion, invention, superior accomplishment or other meritorious effort,
For recognition payments, DHS is establishing a maximum amount as a percentage of a DHS-CS employee's salary because most of the Title 5 authorities, on which recognition payments are based, provide a limit for cash payments as a percentage of annual basic pay. Performance-based cash awards range from a minimum of 5 percent under 5 U.S.C. 5382 to a maximum of 20 percent under 5 U.S.C 4505a and 5382. Presidential rank awards are either 20 percent or 35 percent, and recruitment, relocation, and retention incentives have no minimum but have a maximum of 25 percent without special approval. The maximum percentage amount for these Title 5 awards and incentives, ranges from 20 percent to 50 percent, so DHS is establishing the percentage amounts for recognition payments as up to 20 percent without special approval, and up to 50 percent with approval from the Secretary or the Secretary's designee. Also, because recognition payments have budget implications, requiring special approval for amounts exceeding 20 percent of a DHS-CS employee's salary helps to ensure proper oversight of such additional compensation.
DHS requires a service agreement as part of providing a recognition payment for an incoming DHS-CS employee and may require a service agreement as part of providing a recognition payment to a current DHS-CS employee.
Also, acceptance of a recognition payment constitutes agreement for Federal government use of any idea, method, device, or similar that is the basis of the payment.
A recognition payment is not salary under CTMS nor basic pay for purposes under Title 5,
For DHS-CS employees, recognition payments are in lieu of the seven types of Title 5 cash awards and incentives on which recognition payments are based.
CTMS recognition time-off is time-off from duty without charge to leave or loss of compensation for use by the recipient within a designated timeframe.
As part of providing a DHS-CS employee recognition time-off, DHS designates the timeframe for use of the time-off award. The designated timeframe for recognition time-off may not exceed the equivalent of 26 biweekly pay periods, and all recognition time-off must also be recorded in a timekeeping system to ensure accurate operation of existing salary and leave administration procedures.
Also, as part of an offer for employment in the DHS-CS, DHS may offer an incoming DHS-CS employee up to 40 hours of recognition time-off for that new employee to use within the employee's first year of employment in the DHS-CS.
Recognition time-off may not be converted to a cash payment or any other type of time-off or leave with pay.
A recognition time-off award is in lieu of time-off awards under Title 5 on which recognition time-off is based.
As part of CTMS recognition, DHS may establish one or more honorary recognition programs to provide honorary recognition to DHS-CS employees.
Unlike other CTMS recognition, a DHS-CS employee may be eligible to receive both CTMS honorary recognition and any honorary recognition under 5 U.S.C. 4503 and 5 CFR part 451. Some honorary recognition programs developed under Title 5 authority are designed to recognize employees hired and compensated using a variety of statutory authorities. Thus, all eligible DHS employees, including DHS-CS employees, covered by those Title 5 honorary recognition programs may receive recognition under such programs. As with honorary recognition under 5 U.S.C. 4503, DHS may incur necessary expenses for CTMS honorary recognition.
Under the CTMS compensation system, DHS provides other types of additional compensation in the form of professional development and training, student loan repayments, payments for special working conditions, and allowances in nonforeign areas. Offering allowances in nonforeign areas is mandated by 6 U.S.C. 658 as a type of additional compensation. Such allowances are not specific to CTMS and are provided to DHS-CS employees under 5 U.S.C. 5941. The other types of additional compensation are also not salary under CTMS nor basic pay for purposes under Title 5. Under 6 U.S.C. 658, compensation is either salary or additional compensation, and CTMS professional development and training, CTMS student loan repayments, and CTMS special working conditions, as well as allowances in nonforeign areas, are all additional compensation.
These types of CTMS additional compensation, except allowances in nonforeign areas, are specific to CTMS and are based on Title 5 authorities. As discussed previously in III.A.3 of this document, under the § 658 additional compensation authority DHS may combine and streamline provisions of Title 5 regarding types of additional compensation, as long as it is clear on which specific Title 5 provisions CTMS additional compensation is based. Sections 158.640-158.642 lists the Title 5 authorities on which CTMS professional development and training, student loan repayments, and payments for special working conditions are based. Each of these other special payments under CTMS is discussed subsequently.
Under CTMS, DHS provides DHS-CS employees with opportunities, payments, and reimbursements for professional development and training.
DHS provides CTMS professional development and training opportunities, payments, and reimbursements in alignment with the CTMS career development program described in § 158.802 and discussed subsequently. With the career development program, DHS guides the career progression of DHS-CS employees, which includes enhancement of qualifications, and ensures development of the collective expertise of DHS-CS employees through continual learning. CTMS professional development and training is one means of enhancing qualifications and providing opportunities for continual learning.
DHS also provides CTMS professional development and training in alignment with CTMS compensation strategy. CTMS professional development and training is considered part of a total compensation package for a DHS-CS employee, reflecting an understanding of the concepts of total compensation and total rewards in alignment with the CTMS compensation strategy. Professional development and training, even those opportunities not assigned a specific monetary value, can be a valuable part of an employment opportunity with the DHS-CS and a DHS-CS employee's career progression.
CTMS policy will address eligibility criteria and requirements for documenting the reason and basis for providing professional development and training opportunities, payments, and reimbursements, among other matters necessary for administering CTMS professional development and training.
In addition to CTMS professional development and training, a DHS-CS employee may receive training and professional development under the provisions of Title 5 on which CTMS professional development and training is based, if the employee is eligible under those provisions. Many programs and courses developed under Title 5 authority are intended for employees hired and compensated under several different statutory authorities. Thus, all eligible DHS employees, including DHS-CS employees, covered by such programs and courses may participate in them.
Under CTMS and in alignment with the CTMS compensation strategy, DHS may provide a student loan repayment to a DHS-CS employee up to $16,500 per employee per calendar year and a total of $90,000 per employee.
While DHS offers CTMS student loan repayments under the authority in 6 U.S.C 658, DHS provides CTMS student loan repayments in accordance with 5 U.S.C. 5379 and 5 CFR part 537, with some exceptions. DHS applies different maximum payment and cap amounts, different minimum service period lengths, and expanded eligibility criteria from those under 5 U.S.C. 5379 and 5 CFR part 537. The Title 5 student loan repayment program is a useful tool in recruiting and retaining employees, but the program must align with the approach to talent management under CTMS and the CTMS compensation system, which aims to address factors in DHS's challenges recruiting and retaining cybersecurity talent. As discussed previously in III.B of this document, the competitiveness of compensation, including total compensation packages, is a main factor in DHS's challenges recruiting and retaining cybersecurity talent. Therefore, DHS is including student loan repayments under CTMS as a recruitment and retention tool and is increasing the payment amount and cap amounts for CTMS student loan repayments.
For CTMS student loan repayments, DHS is setting the maximum payment amounts to reflect the increased costs of higher education since Congress last amended the maximum rates under 5 U.S.C. 5379. Student loan repayments under 5 U.S.C. 5379 are capped at $10,000 per employee per year and $60,000 total per employee.
Under § 158.641, the annual cap for CTMS student loan repayments is $16,500 and the aggregate cap is $90,000, in alignment with Congress' last cap increase in 2003. Based on the U.S. Bureau of Labor Statistics Consumer Price Indexes for Tuition and Fees,
Each DHS-CS employee receiving a CTMS student loan repayment must have a service agreement with a minimum service period, but unlike under Title 5 there is no standard length of minimum service period.
Because CTMS is a different approach to talent management and the CTMS compensation system is a wholly different approach to compensating
All DHS-CS employees, except those providing uncompensated service and DHS advisory appointees, may be eligible to receive a CTMS student loan repayment.
Other eligibility for a student loan repayment under § 158.641 aligns with eligibly criteria under 5 U.S.C. 5379 and 5 CFR part 537. As such, a DHS-CS employee is ineligible to receive a CTMS student loan repayment if DHS determines the employee's performance is unacceptable, as defined in 5 U.S.C. 4301(3), or the employee receives an unacceptable rating of record, or DHS determines the employee has engaged in misconduct.
CTMS policy will also address requirements for documenting the reason and basis for providing a CTMS student loan repayment, appropriate levels of review and approval, among other matters necessary for administering CTMS student loan repayments.
Under CTMS, another type of additional compensation that is available to DHS-CS employees is a payment for special working conditions. A payment for special working conditions is a payment of up to 25 percent of the receiving DHS-CS employee's salary as computed for a designated work period or series of work periods.
DHS provides any special working conditions payments under a special working conditions payment program.
Special working conditions under § 158.642 include when a supervisor or other appropriate official requires a DHS-CS employee to perform cybersecurity work determined to involve unusual physical or mental hardship, or performing work at atypical locations, at unexpected times, or for an uncommon duration of time exceeding the expectation that all DHS-CS employees occasionally work unusual hours and extended hours, as needed, to execute DHS's cybersecurity mission.
DHS establishes any special working conditions program in alignment with the CTMS compensation strategy and determines whether to establish, adjust, or cancel a special working conditions payment program based on information from the CTMS work scheduling system and strategic talent planning.
For special working conditions payments, DHS is establishing a maximum amount as a percentage of a DHS-CS employee's salary computed for a work period or series of work periods because the Title 5 authorities, on which special working conditions payments are based, all provide a limit for cash payments as a percentage of annual basic pay computed as an hourly rate. The percentage of basic pay under these Title 5 authorities is: 10 percent for nightwork; up to 25 percent for standby duty and for performance of hazardous duty or duty involving physical hardship; 25 percent for Sunday work; 25 percent for extended assignments; and 100 percent for holiday work.
DHS determines eligibility for a payment for special working conditions under § 158.642 and CTMS policy. Under § 158.642, if a DHS-CS employee receives a payment for special working conditions, the employee is not automatically eligible or entitled to receive any additional such payments. Also, a DHS-CS employee receiving a salary equal to or greater than EX-IV is ineligible to receive a payment under this section. This ineligibility reflects that such additional payments are not necessary for DHS-CS employee receiving high salaries, and it also mirrors restrictions in Title 5 that make Federal employees receiving salaries under Title 5 greater than EX-IV ineligible for certain types of Title 5 additional compensation.
In addition to eligibility criteria, CTMS policy implementing the special working conditions payment program will address requirements for documenting the reason and basis for providing a special working conditions payment, and appropriate approval authorities, among other matters necessary for establishing and operating the program.
A special working conditions payment is in lieu of the types of Title 5 payments on which it is based.
Another type of additional compensation available to DHS-CS employees is an allowance in nonforeign areas under 5 U.S.C. 5941.
Under the CTMS compensation system, DHS is providing DHS-CS employees other types of additional compensation, including leave and other benefits. While DHS offers these other types of additional compensation under the authority in 6 U.S.C 658, DHS provides them in accordance with relevant provisions of other laws that apply to most Federal civil service employees. Many of these other types of additional compensation were established for Federal civilian employees decades ago for purposes still relevant to the talent management approach under CTMS, and these other types of additional compensation are administered using well-established processes DHS does not need to adjust for CTMS. As such, in §§ 158.650, 158.652, and 158.653, DHS provides DHS-CS employees holidays, compensatory time-off for religious purposes, and traditional Federal employee benefits, including retirement, health benefits, and insurance programs, as well as transportation subsidies, in accordance with relevant provisions in Title 5.
In § 158.651, for leave under CTMS, DHS provides DHS-CS employees all the types of leave available to other Federal employees, including annual
For annual leave accumulation under CTMS, DHS will determine DHS-CS employees accumulation amounts under 5 U.S.C. 6304, which permits most Federal employees to accumulate 30 days of annual leave in one year and certain Federal government senior employees, including employees in SL/ST and SES positions, to accumulate 90 days of annual leave in one year.
Under CTMS, DHS may apply a 90-day accumulation amount to DHS-CS employees receiving a salary that exceeds 120 percent of GS-15.
DHS administers leave under CTMS in accordance with relevant provisions of other laws referenced in §§ 158.651 and 158.655 and in CTMS policy implementing leave for DHS-CS employees. As such, in accordance with 5 U.S.C. 6308, annual leave and sick leave accrued to the credit of a current Federal employee who is appointed to a qualified position without a break in service of more than three calendar days will be transferred to the employee's credit, and any leave balance for a DHS-CS employee departing the DHS-CS will be addressed in accordance with 5 CFR 630.209 and 630.501.
In § 158.654, DHS is providing DHS-CS employees other types of payments, including severance pay, lump-sum leave pay outs, voluntary separation incentive payments, reservist differentials, and other similar allowances, differentials, and incentives, in accordance with relevant provisions of other laws governing those types of payments. To ensure DHS can offer any other type of additional compensation that becomes available to Federal civil service employees in the future, § 158.654 states that DHS will also provide other payments similar to those listed in § 155.654 and described in CTMS policy as being authorized under this part and provided in accordance with relevant provisions of other laws.
Although DHS provides the types of payments listed in § 158.654 in accordance with relevant provisions of other laws under the authority in 6 U.S.C. 658, DHS may need to modify application of those relevant provisions of law to maintain the integrity of CTMS and consistency of the approach to talent management under this part. This is because some of the terms used in the relevant provisions of law are not used under CTMS, or a different term is used, and DHS may have to extrapolate between the terms in the relevant provision of law and CTMS concepts. For example, CTMS includes a “part-time schedule” and “contingent schedule,” but Title 5 does not use such terms.
Section 158.655 lists several clarifications for how CTMS terms and concepts relate to relevant provisions of other laws. For example, § 158.655 explains a “part-time schedule” and “contingent schedule” are treated as “part-time career employment” and “intermittent employment,” respectively, as defined in Title 5. Section 158.655 also explains that for purposes of compensation administration authorized under §§ 158.650-158.654, DHS may convert the salary of a DHS-CS employee into an hourly rate, biweekly rate, or other rate and administer compensation based on consideration of the DHS-CS employee's work schedule. To ensure accurate administration of compensation, including leave, for DHS-CS employees in accordance with relevant provisions of Title 5, DHS may need to account for and record leave and other compensation earned and charged on an hourly basis.
Also, § 158.655 clarifies that if, in administering compensation under §§ 158.650-158.654, DHS determines it is necessary to clarify the relationship between those sections and the relevant provisions of law referenced in those sections and any other relevant provisions of other laws, DHS will address the issue in new or revised CTMS policy. Thus, if DHS needs to modify application of those relevant provisions of law relating to compensation for the DHS-CS to maintain the integrity of CTMS and consistency of the approach to talent management under this part, DHS will capture any such modified application in CTMS policy.
The CTMS compensation system includes the CTMS aggregate compensation limit, which restricts certain additional compensation a DHS-CS employee may receive in a calendar year.
The CTMS aggregate compensation limit implements the additional compensation authority in 6 U.S.C. 658(b)(3) regarding the level authorized for such compensation. As discussed previously in III.A.3 of this document, DHS interprets this additional compensation authority to mean that CTMS additional compensation is subject to the aggregate compensation cap in 5 U.S.C. 5307. As also discussed in III.A.3 of this document, this Title 5 aggregate compensation cap has two cap amounts, and the Secretary has discretion for how to apply the two cap amounts to CTMS additional compensation. DHS is applying both cap amounts as the CTMS annual aggregate compensation limit.
The CTMS aggregate compensation limit is one of the two amounts referenced in 5 U.S.C. 5307(d)(1): EX-I ($221,400 in 2021) or the Vice
The applicable CTMS aggregate compensation limit amount for a DHS-CS employee depends on the salary subrange for that individual's salary and the aggregate compensation amount assigned to that subrange. DHS will apply the CTMS aggregate compensation limit amounts in ascending order to the subranges in a CTMS salary structure. DHS will assign one of the two limit amounts to each subrange in a CTMS salary structure such that each subrange has an aggregate compensation limit that is greater than or equal to the salary maximum of that subrange. For example, a hypothetical subrange with a salary maximum of $225,000 is assigned the aggregate compensation limit of the Vice President's salary ($255,800 in 2021). A DHS-CS employee is not permitted to receive payment of certain types of additional compensation if that payment would cause the employee's aggregate compensation to exceed the applicable limit amount for that employee.
Application of the CTMS aggregate compensation limit to DHS-CS employee compensation is based on the Title 5 aggregate compensation cap in 5 U.S.C. 5307 but is tailored to the CTMS compensation system. Under 5 U.S.C. 5307, an employee's aggregate compensation includes the employee's salary, plus any locality-based comparability payments, and certain types of additional compensation under Title 5.
The types of CTMS additional compensation subject to the CTMS aggregate compensation limit are similar to or are the same types of compensation covered by the Title 5 aggregate compensation cap. The types of CTMS additional compensation considered part of a DHS-CS employee's aggregate compensation, and subject to the applicable aggregate compensation cap, are: Recognition payments, payments for special working conditions, payments for certain allowances and differentials under CTMS, and other similar payments described in CTMS policy.
Recognition payments, which are based on awards and incentives under Title 5, are subject to the CTMS aggregate compensation limit, and this mirrors how Title 5 treats those awards and incentives under the Title 5 annual aggregate compensation cap.
Special working conditions payments are also subject to and may be limited by the CTMS aggregate compensation limit.
Aggregate compensation under CTMS excludes all other CTMS additional compensation, which mirrors application of the Title 5 aggregate compensation cap. CTMS professional development and training opportunities, payments, and reimbursements are excluded from the CTMS aggregate compensation limit, which mirrors how Title 5 training and professional development is treated under the Title 5 aggregate compensation cap.
The main difference between the CTMS aggregate compensation limit and the Title 5 aggregate compensation cap, other than the necessary differences to tailor it to the CTMS compensation system, is that the CTMS aggregate compensation limit is a true limit. Once a DHS-CS employee's aggregate compensation reaches the applicable limit amount for that employee, any unpaid amounts of those types of additional compensation subject to the aggregate compensation limit do not roll over into the next calendar year. Under the Title 5 aggregate compensation cap, amounts of similar additional compensation under Title 5 that would cause the employee's aggregate compensation to exceed the cap are unpayable in that calendar year but become payable in the next calendar year.
If DHS underestimates or overestimates a DHS-CS employee's aggregate compensation in a calendar year, DHS may make a corrective action.
Subpart G Deploying Talent, includes regulations addressing the CTMS deployment program. Under the
Under the deployment program, DHS also operationalizes aspects of other CTMS elements.
The deployment program operationalizes aspects of the talent acquisition system by providing requirements for documenting qualified positions established under the talent acquisition system and for matching newly hired DHS-CS employees with initial assignments. Under the deployment program, DHS also determines operational aspects of a newly appointed DHS-CS employee's appointment and assignment, such as the new employee's work schedule and duration of the assignment.
The deployment program operationalizes aspects of the compensation system by providing requirements for determining a DHS-CS employee's official worksite and work schedule, both of which relate to and affect compensation for DHS-CS employees. Whether a DHS-CS employee is eligible for a local cybersecurity market supplement as part of the employee's salary depends on the employee's official worksite location, as does a DHS-CS employee's eligibility for a CTMS allowance in nonforeign areas. Additionally, DHS considers a DHS-CS employee's work schedule when reviewing work conditions or circumstances that may warrant providing a payment under the CTMS special working conditions payment program. Administration of a DHS-CS employee's salary and leave is also connected to the employee's work schedule and hours worked.
Because the deployment program operationalizes aspects of the work valuation system, talent acquisition system, and compensation system, § 158.709 states that the provisions of law relating to classification, appointment, and compensation listed in §§ 158.405, 158.502 and 158.605 do not apply under CTMS, to the DHS-CS, or to talent management under CTMS, including the CTMS deployment program.
Under the CTMS deployment program, DHS sets out the procedures for collaboration across DHS organizations to designate qualified positions and designate and staff assignments, as well as procedures to determine and document DHS-CS employees' official worksites, administer a work scheduling system, and perform necessary recordkeeping.
Under the deployment program, DHS: Establishes procedures for designating qualified positions in DHS organizations; designates and staffs assignments; determines and documents a DHS-CS employee's official worksite; administers a work scheduling system; and performs necessary recordkeeping, including documenting qualified positions and assignments.
Under the CTMS deployment program, DHS designates qualified positions when one or more DHS organizations requires individuals with CTMS qualifications to ensure the most effective execution of the DHS cybersecurity mission and the recruitment and retention of such individuals would be enhanced through use of CTMS.
The process of designating qualified positions involves DHS organizations requesting use of CTMS, following requirements for using CTMS, and ensuring availability of information necessary to designate qualified positions.
Designating qualified positions may result in establishing one or more new qualified positions or identifying and staffing one or more assignments, or both.
Because designating qualified positions may result in establishing a new qualified position, designating qualified positions also involves budget and fiscal considerations.
The CTMS deployment program also establishes procedures for designating and staffing DHS-CS assignments.
DHS staffs DHS-CS assignments by matching DHS-CS employees with assignments, either as an initial assignment for an incoming DHS-CS employee or a subsequent assignment for a current DHS-CS employee.
For initial assignments, DHS matches an individual with an assignment upon appointment to a qualified position based on such alignment. When matching an individual with an initial assignment, DHS may also consider input from the individual, input from DHS organizations, mission-related requirements determined by DHS officials with appropriate decision-making authority, and strategic talent priorities set by CTMS leadership. Considering this other input and information, in addition to CTMS qualifications, ensures the match reflects the best fit for the individual and ensure DHS strategically staffs assignments in alignment with priorities and goals for the DHS-CS.
When matching a DHS-CS employee with a subsequent assignment, DHS may also consider input from the employee; input from DHS organizations, especially the primary DHS organization of the employee's current assignment; information about the employee from the CTMS performance management program and the CTMS career development program; mission-related requirements; and strategic talent priorities.
DHS develops and continually updates strategies for communicating with DHS-CS employees about subsequent assignment opportunities, in alignment with the career development program and based on information from development reviews.
A DHS-CS employee may have multiple assignments throughout the employee's service in a qualified position but only has one assignment at a time. Under CTMS, DHS-CS employees may continue assignments for years or shift assignments periodically to gain exposure to new work or apply their qualifications in different mission areas. The number and variety of assignments an employee has while in the DHS-CS will vary based on that employee's interests, strategic talent priorities, and how the employee's qualifications change over time.
A DHS-CS employee's subsequent assignments may have a different primary DHS organization and worksite than the employee's initial assignment. For example, a DHS-CS employee may have an initial assignment in DHS OCIO, but later have a subsequent assignment in CISA. While that DHS-CS employee's assignment and primary DHS organization changes, the employee is still part of the DHS-CS and still has the same qualified position.
Occasionally, if necessary, DHS may direct a subsequent assignment for a DHS-CS employee.
For directed subsequent assignments expected to last six months or more with an official worksite in the DHS-CS employee's current commuting area, DHS provides the employee at least 30 calendar days written notice.
For directed subsequent assignments expected to last six months or more with an official worksite outside of the DHS-CS employee's current commuting area, DHS consults with that employee on the reasons for the assignment and the employee's preferences regarding the proposed change in assignment.
The CTMS deployment program includes the procedures for determining and documenting official worksites for DHS-CS employees.
Under CTMS, a DHS-CS employee's official worksite is the geographic location where the employee regularly performs cybersecurity work or where the employee's cybersecurity work is based. In determining a DHS-CS employee's official worksite, DHS considers telework, variation in location where the employee performs cybersecurity work, or other temporary situations affecting the location where the employee performs cybersecurity work. Given the variety of work arrangements possible for DHS-CS employees as they perform the work of their assignments, there may be situations in which the location where a DHS-CS employee performs work varies or is not consistent. In such cases, DHS may need to review a DHS-CS employee's specific work arrangement to determine the employee's official worksite.
DHS documents a DHS-CS employee's official worksite as part of
Under the CTMS deployment program, DHS is establishing and administering a work scheduling system for DHS-CS employees. The CTMS work scheduling system accounts for the unpredictable nature of cybersecurity work. The work scheduling system also allows DHS to ensure that the performance of cybersecurity work is not constrained or impeded by rigid scheduling rules and structures designed for more predictable types of work or for administration of types of compensation, such as Title 5 premium pay and overtime pay under the FLSA, that are not part of the CTMS compensation system.
The work scheduling system ensures agility for DHS in scheduling cybersecurity work and the availability of DHS-CS employees to perform the cybersecurity work associated with their assignments.
CTMS includes new definitions specific to the CTMS work scheduling system. For example, “work period” means a two-week period of 14 consecutive days that begins on a Sunday and ends on a Saturday, and is the equivalent of a biweekly pay period.
The CTMS work scheduling system features three main types of schedules: Full-time, part-time, and contingent.
A DHS-CS employee's work schedule, and any minimum hours of work, is determined at the time of appointment and recorded as part of documenting the employee's qualified position.
All DHS-CS employees are expected to perform DHS-CS cybersecurity work associated with their assignments, especially in response to exigent circumstances and emergencies, including cybersecurity incidents.
DHS monitors the hours worked and reported by DHS-CS employees for purposes of managing the DHS-CS, including considering any changes to DHS-CS employees' schedules, and administering compensation, including assisting in consideration of any payment under a CTMS special working conditions program.
DHS-CS employees with full-time and part-time schedules are expected to work at least their minimum hours of work.
A DHS-CS employee's hours worked directly impacts the employee's compensation. A DHS-CS employee's hours worked is important for salary administration generally and is a factor in providing CTMS special working
DHS will implement the work scheduling system in CTMS policy and may establish other work scheduling requirements for DHS-CS employees, including designated days, hours, core hours, or limits on the number of work hours per day. The flexibility to establish other work scheduling requirements allows DHS to adjust to and effectively manage changes linked to the unpredictable nature of cybersecurity work, and respond to work arrangements used by other cybersecurity employers.
Under the CTMS deployment program, DHS creates records of a DHS-CS employee's employment in the DHS-CS.
DHS documents a qualified position by documenting an individual's appointment to a qualified position.
As discussed previously and stated in § 158.522, a DHS-CS employee serves in the same qualified position for the duration of employment in the DHS-CS, regardless of any changes to the employee's assignments, including primary DHS organizations or official worksite. DHS updates the documentation associated with a DHS-CS employee's qualified position to reflect changes affecting the employee's qualified position, such as enhancements to CTMS qualifications, any subsequent assignment, changes to applicable work and career structures, and changes to official worksite or work schedule. Such a change in documentation does not change the DHS-CS employee's qualified position or indicate that DHS has appointed the employee to a different qualified position.
Recordkeeping under CTMS also includes documenting assignments. Documentation of an assignment includes specific assignment information that describes the DHS-CS cybersecurity work activities of the assignment.
Updates to the documentation associated with a DHS-CS employee's qualified position also are not a promotion, transfer, or reassignment for any other purpose under 5 U.S.C. or 5 CFR, except as necessary for recordkeeping purposes only.
While CTMS does not include certain Title 5 concepts, DHS may need to use certain Title 5 terms for recordkeeping purposes to ensure talent management actions for DHS-CS employees are administered and documented properly. DHS uses existing Federal personnel recordkeeping processes, standards, requirements, and systems of record, which use Title 5 terms, for personnel records related to employees in the DHS-CS. To accommodate the new approach to talent management under CTMS, DHS may need to use those Federal personnel recordkeeping processes, standards, requirements, and systems of record differently from how DHS uses them to support other existing personnel systems. For example, although a change in a DHS-CS assignment does not constitute a reassignment for purposes of Title 5, DHS may process a change in assignment for a DHS-CS employee as a “reassignment” and generate associated records, even though existing Federal personnel recordkeeping guidance defines “reassignment” as a change from one position to another position.
DHS may detail DHS-CS employees outside of DHS.
DHS may approve a variety of details and external opportunities for DHS-CS employees under existing provisions of Title 5 and other laws governing details outside of DHS.
Subpart H, Developing Talent, includes regulations addressing performance management and development of DHS-CS employees and establishes two elements of CTMS: The performance management program and the career development program. DHS uses the CTMS performance management program to: Establish and maintain individual accountability among DHS-CS employees; manage, recognize, and develop performance of DHS-CS employees; and improve effectiveness in executing the DHS cybersecurity mission.
DHS is establishing the CTMS performance management program and the CTMS career development program in alignment with the DHS-CS's core values and the goals of the CTMS compensation strategy. This alignment reinforces the core values of expertise, innovation, and adaptability, and underscores the expectation of continual learning for DHS-CS employee performance and development. DHS-CS employees must ensure that their CTMS qualifications remain fresh as technology and threats as well as cybersecurity techniques and tactics change.
Alignment with the goals of the CTMS compensation strategy ensures that DHS manages DHS-CS employee performance with a focus on those goals of exceptional CTMS qualifications and mission impact, excellence and innovation in the performance of DHS-CS cybersecurity work, and continual learning. This focus aligns with opportunities for additional compensation, such as CTMS recognition, which is based primarily on mission impact, as discussed previously.
Alignment with the CTMS compensation strategy goal of continual learning is particularly important for performance management and career development. Such alignment reinforces that DHS-CS employees are expected to enhance their CTMS qualifications, which ultimately contributes to mission impact as DHS-CS employees apply those enhanced qualifications to perform DHS-CS cybersecurity work. The goal of continual learning also supports career progression, which is based on enhancements to CTMS qualifications and salary progression as discussed subsequently.
Performance management under 5 U.S.C. Chapter 43 and 5 CFR part 430 is the systematic process by which an agency involves its employees, as individuals and members of a group, in improving organizational effectiveness in the accomplishment of agency mission and goals.
Collectively, the three ongoing reviews are designed to foster and encourage the improvement of organizational effectiveness in the accomplishment of agency mission and goals through individual accountability, contributions to the mission, and employee development, all of which are fundamental to performance management under 5 CFR part 430. CTMS appraisal reviews target individual accountability. CTMS development reviews focus on continual learning, and mission impact reviews serve as a critical intersection point for the other two reviews. As part of CTMS mission impact reviews, DHS analyzes and describes a DHS-CS employee's influence on the execution of the DHS cybersecurity mission through the application of the DHS-CS employee's CTMS qualifications to perform DHS-CS cybersecurity work. In turn, DHS uses the results of mission impact reviews to support decisions relating to the type and amount of CTMS recognition a DHS-CS employee may receive.
To complete the three reviews under the CTMS performance management program, DHS may collect information and input on a periodic or ongoing basis from the DHS-CS employee being reviewed, other DHS-CS employees, the employee's supervisor, and other appropriate officials.
DHS conducts CTMS appraisal reviews using a performance appraisal program, established specifically for DHS-CS employees, that fulfills the specific requirements for appraisal reviews under 5 CFR 430. DHS uses the CTMS appraisal program to review and evaluate the performance of DHS-CS employees, and to ensure DHS-CS employees' individual accountability.
As mentioned previously, a DHS-CS employee is ineligible to receive CTMS recognition if DHS determines a DHS-CS employee's performance is unacceptable or the employee receives an unacceptable rating of record.
CTMS mission impact reviews are used to evaluate a DHS-CS employee's mission impact throughout the employee's service in a qualified position and to generate a mission impact summary at least annually.
Mission impact reviews are closely connected to CTMS compensation. Capturing, encouraging, and recognizing DHS-CS employee mission impact is part of how DHS manages the DHS-CS based on the DHS-CS's core values and in alignment with the goals of the compensation strategy as previously discussed. As a result of mission impact reviews, DHS makes distinctions among DHS-CS employees to support decisions related to CTMS recognition.
CTMS development reviews are used to review a DHS-CS employee's career progression throughout the employee's service in the DHS-CS.
As part of development reviews, DHS may compare, categorize, and rank DHS-CS employees to support decisions related to professional development and training, as well as subsequent assignments.
Development reviews connect the CTMS performance management program and the CTMS career development program. Development reviews are the primary means by which DHS determines the extent to which DHS-CS employees have enhanced their CTMS qualifications and thus assist DHS in guiding career progression for DHS-CS employees under the career development program.
DHS is establishing and administering the CTMS career development program to guide DHS-CS employee career progression, ensure development of the collective expertise of DHS-CS employees through continual learning, and ensure the continued alignment between the qualifications of DHS-CS employees and the set of CTMS qualifications.
Career progression in the DHS-CS is based on enhancement of CTMS qualifications and salary progression resulting from recognition adjustments.
Under the CTMS career development program, DHS guides career progression of DHS-CS employees using development strategies based on information from development reviews, mission-related requirements, and strategic talent priorities.
Reviewing and encouraging DHS-CS employee career progression is part of how DHS manages the DHS-CS based on the DHS-CS's core values and in alignment with the goals of the compensation strategy as previously discussed. Reviewing and encouraging excellence, innovation, and continual learning through professional development and training opportunities and certain subsequent assignments ensures DHS-CS employees are recognized for such progression. DHS needs the collective expertise of the DHS-CS to keep pace with the ever-evolving nature of cybersecurity work, cybersecurity risks, and cybersecurity threats, and development reviews help foster and encourage a DHS-CS with similarly evolving expertise.
The career development program emphasizes continual learning. DHS needs the collective expertise of the DHS-CS to keep pace with the evolution of cybersecurity work and the dynamic DHS cybersecurity mission. DHS also needs to ensure the DHS-CS collective expertise reflects the set of CTMS qualifications. The career development program, and its emphasis on continual learning, assists DHS in accomplishing this.
DHS establishes, maintains, and communicates criteria for continual learning for DHS-CS employees. Such criteria include recommended and required learning activities, such as: Completion of a specific course of study; completion of mission-related training defined in 5 CFR 410.101; performance of certain cybersecurity work as part of DHS-CS assignments; and participation in opportunities for CTMS professional development and training.
DHS verifies a DHS-CS employee's enhancement of CTMS qualifications, which may include review by the CTMB or assessment using standardized
Subpart I contain regulations addressing Federal civil service employee rights and requirements that apply under CTMS and in the DHS-CS. Subpart J addresses CTMS political appointments, known as advisory appointments. These subparts clarify application to DHS-CS employees of certain protections and requirements for Federal employees and describe employment in the DHS-CS for DHS-CS advisory appointees.
Subpart I, Employee Rights, Requirements, and Input, contains regulations establishing a program for addressing DHS-CS employee input specific to the DHS-CS and a DHS-CS employee's employment. Subpart I also clarifies that certain requirements and protections for Federal employees apply for DHS-CS employees.
DHS-CS employees retain rights and access to processes that may be relevant to employment in the DHS-CS. The provisions of 5 U.S.C. Chapter 75 and 5 U.S.C. 4303 regarding adverse actions and 5 U.S.C. Chapter 35, Subchapter I regarding reductions in force apply to talent management actions under CTMS.
Like other Federal officers and employees, DHS-CS employees are employees covered by the Ethics in Government Act section 101(f)(3), and are subject to the criminal conflict of interest rules as well as government ethics requirements.
In addition to the rights and access to processes outside of CTMS, DHS-CS employees also have access to an employee input program under CTMS. DHS is establishing a program for DHS-CS employees to express employment-related concerns and recommendations for enhancing CTMS administration and DHS-CS management.
One purpose of the employee input program is to establish opportunities for DHS-CS employees to raise, and have addressed, employment-related concerns without formal litigation. The program, however, does not replace opportunities for redress with relevant third parties, mentioned previously. CTMS policy implementing the employee input program will describe how the program interacts with these other third-party redress avenues.
Another purpose of the employee input program is to provide a process for DHS-CS employees to provide feedback on CTMS and the DHS-CS. This feedback will help the CTMB evaluate whether the CTMS is fulfilling the purpose of its design to recruit and retain individuals with the qualifications necessary to execute the DHS cybersecurity mission. As discussed previously, CTMS has several interrelated elements that function together. Feedback from DHS-CS employees is critical, and the employee input program provides an opportunity for DHS-CS employees to be heard and share their thoughts about the operation of CTMS, including hiring, compensation, and development practices that could be improved. The CTMB may use information from the employee input program for its periodic review of CTMS administration and operation.
Subpart J, Advisory Appointments, addresses political appointees under CTMS who serve in advisory appointments. An advisory appointment is an appointment to a qualified position that: The Secretary determines is of a policy-determining, policy-making, or policy advocating character or involves a close or confidential working relationship with the Secretary or other key appointed officials; does not have a salary set by statute; and is not required to be filled by an appointment by the President.
An advisory appointment may not be used for an appointment for which salary is set by statute; DHS sets salaries for all advisory appointees under the CTMS compensation system. DHS leadership positions that are established in statute and have a salary in the Executive Schedule set by statute are not covered by advisory appointments. DHS positions required to be filled by appointment by the President also are not covered by advisory appointments.
To treat advisory appointees like other political appointees for talent management purposes other than appointment and compensation, an advisory appointment is treated as an appointment to a Schedule C position under 5 CFR 213.3301.
Appointment to an advisory appointment includes the individual participating in the CTMS assessment
The Secretary or designee must approve the appointment of an individual to an advisory appointment by name, and all advisory appointees serve at the will of the Secretary.
Advisory appointments to qualified positions are limited and capped at a total number established by the Secretary or the Secretary's designee under § 158.1002. This cap reflects that noncareer appointments to SES positions are generally limited to 25 percent of the agency's number of total SES positions, and Schedule C positions are limited in total number under OPM direction.
Once appointed, an advisory appointee in the DHS-CS is treated like other political appointees for all talent management purposes, except compensation. Like other DHS-CS employees, an advisory appointee receives a salary under the CTMS salary system, unless the appointee is providing uncompensated service.
Like political appointees in Schedule C positions who may receive a promotion and GS grade increase, and political appointees in non-career SES positions who may receive a performance-based pay adjustment, an advisory appointee may receive salary adjustments in the form of recognition adjustments. Like a political appointee in a Schedule C position who may receive locality pay under the GS, an advisory appointee may receive a local cybersecurity talent market supplement. Like other DHS-CS employees, DHS administers salary and other compensation, including leave, for an advisory appointee based on consideration of the advisory appointee's work schedule under the CTMS work scheduling system. DHS also may convert an advisory appointee's salary into an hourly, biweekly, or other rate as necessary to ensure accurate operation of existing pay administration procedures and infrastructure, as mentioned previously.
An advisory appointee, unless providing uncompensated service, may also receive CTMS additional compensation, but only as provided in subpart J. Like other DHS-CS employees, additional compensation for advisory appointees is subject to and may be limited by the CTMS aggregate compensation cap. Additional compensation for advisory appointees is also subject to and may be limited by prohibitions, guidance, and other provision of law governing awards to political appointees, including 5 U.S.C. 4508 prohibiting awards to political appointees during a Presidential election period, and other restrictions and requirements in CTMS policy. Restrictions on additional compensation for advisory appointees aligns with general restrictions on certain types of compensation for political appointees across the Federal government, such as OPM guidance to agencies restricting discretionary awards, bonuses, and similar payments for Federal employees serving under political appointments.
Like other types of political appointees who may receive monetary and other awards, advisory appointees may receive CTMS recognition payments, CTMS recognition time-off, and CTMS honorary recognition, subject to prohibitions, guidance, and other provision of law governing compensation for political appointees. An individual being appointed to an advisory appointment, however, may not receive any recognition as part of an offer of employment because other political appointees are prohibited from receiving recruitment incentives.
An advisory appointee may receive CTMS professional development and training; however, unlike other DHS-CS employees, an advisory appointee may not receive any payment or reimbursement for costs of academic degree training or expenses to obtain professional credentials, including examinations to obtain such credentials. As discussed previously, CTMS professional development and training is based, in part, on payment of expenses to obtain professional credentials under 5 U.S.C. 5757, which prohibits such payments for any employee occupying or seeking to qualify for appointment to any position that is excepted from the competitive service because of the confidential, policy-determining, policy-making, or policy-advocating character of the position. Similarly, an advisory appointee is ineligible for CTMS student loan repayments, which as discussed previously are based on student loan repayment provisions of Title 5, and political appointees are ineligible to receive Title 5 student loan repayments.
Like other political appointees in non-career SES positions and Schedule C positions, advisory appointees may receive types of compensation, including leave and benefits, authorized under CTMS and provided in accordance with provisions of Title 5. An advisory appointee, however, may not receive a CTMS special working conditions payment under a special working conditions payment program because of the nature of an advisory appointment: A political appointment, especially one with a close and confidential working relationship with the Secretary or other key appointed officials, involves different expectations about working conditions than the
An advisory appointee may receive CTMS allowances in nonforeign areas under 5 U.S.C. 5941 like other DHS-CS employees because under 6 U.S.C. 658(b)(3)(B) mandates that all employees in qualified positions “shall be eligible” for such allowances on the same basis and to the same extent as if the employee in the qualified positions was covered by 5 U.S.C. 5941. A CTMS allowance in nonforeign areas for an advisory appointee, however, is subject to prohibitions, guidance, and other provision of law governing compensation for political appointees.
The following are the most relevant reference materials reviewed by a specialized DHS team as part of designing CTMS to solve DHS's historical and ongoing challenges recruiting and retaining cybersecurity talent:
DHS developed this rule after considering numerous statutes and Executive Orders (E.O.s) related to rulemaking. Below is a summary of the analysis based on these statutes or E.O.s.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is one of agency management and personnel. While such rules are not considered rules subject to review by OMB under E.O. 12866,
An assessment of potential costs and benefits follows.
CTMS is a new mission-driven, person-focused, and market-sensitive approach to talent management featuring several interrelated elements. Each of the CTMS elements (strategic talent planning process, talent acquisition system, compensation system, deployment program, performance management program, and career development program) represent a shift from the talent management methods and practices Federal agencies traditionally use to manage Federal civil service talent. CTMS is designed to recruit and retain individuals with the skills, called qualifications, necessary to execute the DHS cybersecurity mission. CTMS is also designed to adapt to changes in cybersecurity work, the cybersecurity talent market, and the DHS cybersecurity mission over time. With CTMS, DHS is creating a new type of Federal civilian position, called a qualified position, and the cadre of those positions and the individuals appointed to them is called the DHS-CS. DHS organizations will use CTMS when they need to recruit and retain talent with CTMS qualifications and DHS determines the recruitment and retention of such talent would be enhanced by specialized CTMS practices for hiring, compensation, and development.
The DHS organizations using CTMS will provide for the compensation of new DHS-CS employees they hire, and OCHCO, which contains the specialized team responsible for designing CTMS, will assist those DHS organizations as they hire, compensate, and develop those new DHS-CS employees. The Cybersecurity and Infrastructure Security Agency (CISA) and the DHS Office of the Chief Information Officer (DHS OCIO) will be the first to use CTMS and hire new DHS-CS employees. In early FY 2022, CISA and DHS OCIO plan to use CTMS for approximately 150 priority hires.
To design CTMS and prepare for its establishment and administration, OCHCO needed the talent management infrastructure necessary to conceive of and plan for DHS to use a new approach to Federal civilian talent management. Most importantly, OCHCO needed individuals with a variety of highly specialized talent management expertise in areas ranging from industrial and organizational (I/O) psychology and compensation design to Federal talent management policy and employment law. Such expertise was necessary to design each of the interrelated elements of CTMS as well as prepare for their respective administration. All CTMS elements, especially those reflecting the greatest shifts from existing Federal talent management methods and practices, required effort to envision, including a variety of research and planning activities to translate ideas into specialized hiring, compensation, and development practices DHS could begin to use. This preparation required DHS to review existing talent management business processes in use across DHS organizations and formulate adjustments to ensure the effective administration of CTMS and its elements. Notable adjustments involved reviewing approval and recordkeeping procedures for talent management actions as well as operation of existing information technology support systems, such as the DHS personnel and payroll system.
In fiscal year (FY) 2016, Congress began providing OCHCO with funding to design and establish CTMS. The table below summarizes the funding Congress provided OCHCO for CTMS from FY 2016 through FY 2021; it also outlines how OCHCO used the funding to design and prepare to administer each CTMS element.
As shown in Table 3, OCHCO used approximately 37 percent of the funding received from FY 2016 through FY 2021 for the talent acquisition system, which required extensive industrial and organizational (I/O) psychology research to develop, validate, and test assessment processes, including simulations of DHS-CS cybersecurity work intended to test CTMS qualifications. OCHCO also used a total of approximately 25 percent of the FY 2016 through FY 2021 funding on parts of the strategic talent planning process, each of which are critical to the administration of several CTMS elements. Each of the remaining elements was associated with less than 11 percent of the funding received from FY 2016 through FY 2021.
For FY 2022, DHS has requested a budget increase of approximately $2.3 million above FY 2021 funding to cover expected enhancements to the talent acquisition and compensation systems. Additional spending, to be split evenly between these two elements, is intended to ensure that DHS can effectively use CTMS to source and assess more applicants, hire more DHS-CS employees, and monitor and adjust the compensation of those employees. Currently, DHS is planning with DHS organizations for a second phase of hiring to begin in FY 2022 and to include at least 350 new DHS-CS employees.
Notably, OCHCO used 74 percent and 26 percent of the FY 2016 through FY 2021 funding on contract support and OCHCO Federal team salaries and benefits, respectively. Much of the design of CTMS and its elements required temporary, start-up expertise, which was most efficiently secured via contract. In FY 2022, DHS anticipates initial start-up investments required to establish CTMS will be complete. DHS anticipates annual costs of operating CTMS in future years to range from approximately $12 million to $17 million, depending on the number of DHS organizations using CTMS, the growth of the population of DHS-CS employees, and the magnitude of adjustments to CTMS required as a result of changes in the cybersecurity talent market and the DHS cybersecurity mission. Simultaneously, DHS expects a larger proportion of annual CTMS administration costs to be dedicated to the salaries and benefits of Federal employees responsible for administering CTMS and supporting both DHS organizations using CTMS and the DHS-CS employees hired by them.
The costs of compensating DHS-CS employees with salaries and additional compensation are not accounted for in the funding OCHCO has received for CTMS. DHS organizations will cover the costs of compensating DHS-CS employees and any related expenses incurred after the selection of those employees. Costs for compensating DHS-CS employees will be constrained by the amount budgeted for DHS's compensation expenditures, as is the case for existing Federal civilian employees in positions established and managed under other existing Federal personnel systems.
OCHCO will work closely with DHS organizations to establish qualified positions in the DHS-CS and support the hiring, compensation, and development their DHS-CS employees. In addition, DHS organizations will commit to funding new qualified positions and DHS-CS employees prior to hiring. Such funding commitments will be based on hiring plans, including cost estimates, established by DHS organizations with assistance from OCHCO. In planning for the cost of qualified positions and DHS-CS employees, DHS will use a consistent cost estimating methodology, much like DHS uses to describe and estimate employee costs under other existing Federal personnel systems. In alignment with the new CTMS compensation system, the new cost estimating methodology will account for four new cost factors: Salary, salary adjustments (called recognition adjustments), cash bonuses (called recognition payments), and training.
Under CTMS, DHS sets salaries based on assessment of an individual's CTMS qualifications. Salaries for DHS-CS employees may include a local cybersecurity talent market supplement, intended to account for differences in the cost of talent in specific local cybersecurity talent markets, which are geographic areas defined by DHS. Salary adjustments under CTMS are based primarily on a DHS-CS employee's mission impact, and DHS makes such adjustments based on an understanding of current compensation practices in the broader cybersecurity talent market, including the salary rates of other employers.
CTMS additional compensation includes recognition payments based primarily on DHS-CS employees' mission impact, and DHS also provides such payments based on an understanding of current compensation practices in the broader cybersecurity talent market. Under CTMS, continuous learning is a critical aspect of DHS-CS employees' career progression, so the new cost estimating methodology includes training costs to ensure DHS organizations have requisite funding allocated to invest in the development of their DHS-CS employees. Remaining position costs, such as benefits, General Services Administration rent, and equipment, have been incorporated into the cost estimating methodology based on established rates DHS uses to estimate employee costs under other existing Federal personnel systems.
This rulemaking may have future distributional effects on the DHS budget regarding funding for positions and employees. At the launch of CTMS, a DHS organization establishing a new qualified position in the DHS-CS will cover the cost of that qualified position using existing funding. DHS organizations will need to review available funding and position vacancies when creating qualified positions in the DHS-CS to account for cost differences between qualified positions and positions previously defined using other Federal personnel systems. Because CTMS reflects shifts from existing talent management practices and methods, including those for compensation, DHS anticipates that the costs of qualified positions will vary from the costs a DHS organization previously projected for vacant positions based on the talent management practices of other existing personnel systems. These cost differences may require DHS organizations to adjust strategies for filling vacancies. In some cases, certain vacancies may need to remain unfilled to ensure sufficient funding for one or more DHS-CS qualified positions reflecting higher total costs than previously estimated. In other cases, a DHS organization may realize cost savings as it is able to hire highly-skilled DHS-CS employees with lower compensation and total costs than the organization previously projected using other existing Federal personnel systems. For example, a DHS organization might have planned to hire an experienced cybersecurity expert given previous recruiting challenges, but with CTMS, the organization may be able to hire, competitively compensate, and quickly develop a DHS-CS employee just beginning a career in cybersecurity.
Cybersecurity is a matter of homeland security and one of the core missions of DHS. For more than a decade, DHS has encountered challenges recruiting and retaining mission-critical cybersecurity talent. During that time, as cybersecurity threats facing the Nation have grown in volume and sophistication, DHS has experienced spikes in attrition and longstanding vacancies in some cybersecurity positions. To address the DHS's ongoing challenges recruiting and retaining cybersecurity talent, DHS is establishing CTMS under the authority in 6 U.S.C. 658.
The main benefit of this rulemaking is enhancing the Nation's cybersecurity by enhancing DHS's capacity to recruit and retain top cybersecurity talent to execute the DHS cybersecurity mission. The DHS-CS employees hired, compensated, and developed using CTMS are expected to impact execution of the DHS cybersecurity mission, including by applying their CTMS qualifications to successfully and proficiently perform DHS-CS cybersecurity work. Given the ever-evolving nature of cybersecurity threats and risks, future costs of CTMS and the DHS-CS cannot be projected with certainty, and similarly, the benefits of CTMS and the DHS-CS cannot be estimated with certainty. While difficult for DHS to quantify in advance, the cybersecurity work performed by DHS-CS employees is anticipated to result in efficiencies in DHS cybersecurity mission execution. In the course of DHS-CS employees performing their work, DHS also anticipates that they will make contributions to cybersecurity technologies, techniques, tactics, or procedures, which will benefit both DHS and the Nation more broadly.
The Regulatory Flexibility Act (5 U.S.C. 601
This rule is not covered by the Congressional Review Act (CRA), codified at 5 U.S.C. 801-808, because it is excluded from the definition of a “rule” under that Act. Under the CRA, certain rules are subject to requirements concerning congressional review of those rules. A “rule” for purposes of the CRA, however, does not include “any rule relating to agency management or personnel.” 5 U.S.C. 804(3)(B). As discussed in II. Basis and Purpose, this rule implementing a new talent management system for a subset of DHS's cybersecurity workforce is a matter relating to agency management or personnel. As such, this rule is excluded from the definition of “rule” under the CRA and is thus not subject to the CRA's requirements.
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector. Because this rule does not impose any Federal mandates on State, local, or Tribal governments, in the aggregate, or the private sector, and because this rule is exempt from written statement requirements under 2 U.S.C. 1532(a), this rule does not contain such a written statement.
A rule has implications for federalism under E.O. 13132 if it has a substantial direct effect on 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. Because this rule implements a new talent management system and only addresses DHS personnel matters, DHS determined in accordance with E.O. 13132 that this rule does not have federalism implications warranting the preparation of a federalism summary impact statement.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 to minimize litigation, eliminate ambiguity, and reduce burden.
This rule does not have tribal implications under E.O. 13175, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
DHS analyzed this rule under Department of Homeland Security Management Directive 023-01 Rev. 01 and Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual), which establishes the procedures DHS uses to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
This rule implements a new talent management system with specialized practices for hiring, compensating, and developing cybersecurity talent to support the Department's cybersecurity mission. Because this rule is limited to agency management and personnel matters, it clearly falls within the scope of DHS categorical exclusions A1 (Personnel, fiscal, management, and administrative activities, such as recruiting, processing, paying, recordkeeping, resource management, budgeting, personnel actions, and travel) and A3(a) (Promulgation of rules of a strictly administrative or procedural nature), set forth in Appendix A of the Instruction Manual. This rule also is not part of a larger action and presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this action is categorically excluded and no further NEPA analysis is required.
The National Technology Transfer and Advancement Act, codified at 15 U.S.C. 272 note, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630.
Executive Order 13045 requires agencies to consider the impacts of environmental health risk or safety risk that may disproportionately affect children. DHS has analyzed this rule under E.O. 13045 and determined it is not a covered regulatory action. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
DHS has analyzed this rule under E.O. 13211 and has determined that it is not a “significant energy action” under that order because although it is a “significant regulatory action” under E.O. 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and the Administrator of OMB's Office of Information and Regulatory Affairs has not designated it as a significant energy action.
This rule would call for no new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. Any collection of information under this rule will be under existing collections of information concerning Federal hiring and Federal employment.
Administrative practice and procedure, Employment, Government employees, Reporting and recordkeeping requirements, and Wages.
: 6 U.S.C. 658.
Subpart H also issued under 5 U.S.C. Chapters 41 and 43; 5 CFR parts 410 and 430.
(a)
(b)
(c)
(a)
(b)
(c)
(a)
(1) Establishing and administering CTMS; and
(2) Establishing and managing the DHS-CS.
(b)
(1) Being recruited for employment under this part;
(2) Applying for employment under this part;
(3) Serving in a qualified position under this part;
(4) Managing, or participating in the management of, any DHS-CS employee under this part, including as a supervisor or any other employee of the Department who has the authority to take, direct others to take, recommend, or approve any talent management action under this part; or
(5) Serving on the Cybersecurity Talent Management Board described in § 158.302.
As used in this part:
Cybersecurity is a matter of homeland security and one of the core missions of the Department. Congress and the President charge the Department with responsibilities relating to cybersecurity and grant the Secretary and other officials authorities to carry out those cybersecurity responsibilities. The Department's cybersecurity mission is dynamic to keep pace with the evolving cybersecurity risks and cybersecurity threats facing the Nation and to adapt to any changes in the Department's cybersecurity responsibilities. The DHS cybersecurity mission encompasses all responsibilities of the Department relating to cybersecurity.
The Secretary or designee establishes and manages the DHS-CS to enhance the cybersecurity of the Nation through the most effective execution of the DHS cybersecurity mission.
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(a) The Secretary or designee is responsible for administering CTMS and managing the DHS-CS, including establishing and maintaining CTMS policy.
(b) The Cybersecurity Talent Management Board (CTMB) is responsible for assisting the Secretary or designee in administering CTMS and managing the DHS-CS.
(c) The Secretary or designee, with assistance from the CTMB, administers CTMS and manages the DHS-CS based on:
(1) Talent management principles described in § 158.303;
(2) Strategic talent priorities described in § 158.304; and
(3) DHS-CS core values described in § 158.305.
(a)
(b)
(1) Officials representing DHS organizations involved in executing the DHS cybersecurity mission; and
(2) Officials responsible for developing and administering talent management policy within the Department.
(c)
(1) Appoints officials to serve as members of the CTMB;
(2) Designates the Co-Chairs of the CTMB; and
(3) Ensures CTMB membership fulfills the membership requirements in this section and includes appropriate representation, as determined by the Secretary or designee, from across the Department.
(d)
(e)
(a)
(b)
(c)
The Secretary or designee, with assistance from the CTMB, administers CTMS and manages the DHS-CS based on strategic talent priorities, which the Secretary or designee sets on an ongoing basis using:
(a) Information from strategic talent planning described in § 158.401(c);
(b) The Department's financial and resources planning functions, including the functions described in 6 U.S.C. 342(b);
(c) The Department's comprehensive strategic planning, including the plan described in 5 U.S.C. 306; and
(d) Departmental priorities.
The Secretary or designee, with assistance from the CTMB, manages the DHS-CS based on the following core values:
(a) Expertise, including enhancing individual and collective expertise regarding cybersecurity through continual learning;
(b) Innovation, including pursuing new ideas and methods regarding cybersecurity work and cybersecurity generally; and
(c) Adaptability, including anticipating and adjusting to emergent and future cybersecurity risks and cybersecurity threats.
(a)
(b)
(1) Identifying DHS-CS cybersecurity work and CTMS qualifications based on the DHS cybersecurity mission as described in § 158.402;
(2) Analyzing the cybersecurity talent market as described in § 158.403;
(3) Describing and valuing DHS-CS cybersecurity work under the work valuation system described in § 158.404; and
(4) Ensuring CTMS administration and DHS-CS management is continually informed by current, relevant information as described in paragraph (c) of this section.
(c)
On an ongoing basis, the Secretary or designee analyzes the DHS cybersecurity mission to identify:
(a) The functions that execute the DHS cybersecurity mission;
(b) The cybersecurity work required to perform, manage, or supervise those functions; and
(c) The set of qualifications, identified in accordance with applicable legal and professional guidelines, necessary to perform that work.
On an ongoing basis, the Secretary or designee conducts an analysis of the cybersecurity talent market, using generally recognized compensation principles and practices to:
(a) Identify and monitor trends in both employment for and availability of talent related to cybersecurity, including variations in the cost of talent in local cybersecurity talent markets, defined in § 158.612(b)(1), or variations in the cost of living in those markets, or both; and
(b) Identify leading strategies for recruiting and retaining talent related to cybersecurity.
(a) The Secretary or designee establishes and administers a person-focused work valuation system to facilitate systematic management of the DHS-CS and to address internal equity among DHS-CS employees. The work valuation system is designed to reflect that:
(1) The DHS cybersecurity mission is dynamic;
(2) Cybersecurity work is constantly evolving; and
(3) Individuals, through application of their qualifications, significantly influence how cybersecurity work is performed.
(b) The work valuation system is based on:
(1) CTMS qualifications; and
(2) DHS-CS cybersecurity work.
(c) The Department uses the work valuation system to establish work and career structures, such as work levels, titles, ranks, and specializations, and the Department uses these work and career structures for purposes of talent management under this part, such as:
(1) Describing and categorizing DHS-CS employees, qualified positions, and assignments;
(2) Assessing and selecting individuals for appointment to qualified positions; and
(3) Compensating DHS-CS employees under this part, including establishing and administering one or more salary structures, described in § 158.611.
(d) The Department may also use the work and career structures described in paragraph (c) of this section for budget and fiscal purposes related to administering CTMS and managing the DHS-CS.
The provisions of 5 U.S.C. Chapter 51 regarding classification and 5 CFR part 511 regarding classification under the General Schedule, among other similar laws, do not apply under CTMS, to the DHS-CS, or to talent management involving the individuals described in § 158.103.
(a) The Secretary or designee establishes and administers a talent acquisition system, in accordance with applicable legal and professional guidelines governing the assessment and selection of individuals, to identify and hire individuals possessing CTMS qualifications.
(b) The talent acquisition system comprises the strategies, programs, and processes described in this subpart and in CTMS policy for proactively and strategically recruiting individuals, assessing qualifications of individuals, and considering and selecting individuals for employment in the DHS-CS and appointment to qualified positions.
The provisions of the following laws, among other similar laws, do not apply under CTMS, to the DHS-CS, or to talent management involving the individuals described in § 158.103:
(a) The following provisions of 5 U.S.C.:
(1) Section 3320 regarding selection and appointment in the excepted service; and
(2) Chapter 51 regarding classification; and
(b) The following provisions of 5 CFR:
(1) Part 211 regarding veteran preference;
(2) Part 302 regarding employment in the excepted service (except § 302.203 regarding disqualifying factors);
(3) Part 352 regarding reemployment rights (except subpart C regarding detail and transfer of Federal employees to international organizations); and
(4) Part 511 regarding classification under the General Schedule.
(a) On an ongoing basis, the Department develops and implements strategies for publicly communicating about the DHS cybersecurity mission and the DHS-CS and for proactively recruiting individuals likely to possess CTMS qualifications.
(b) The Department develops and implements strategies described in paragraph (a) of this section based on:
(1) CTMS qualifications and DHS-CS cybersecurity work; and
(2) Strategic talent priorities.
(c) In developing and implementing strategies described in paragraph (a) of this section, the Department may collaborate with:
(1) Other Federal agencies including the Department of Defense, the Office of Personnel Management, and the Department of Veterans Affairs;
(2) Institutions of higher education, as defined in 20 U.S.C. 1001, including historically Black colleges or universities, as described in 20 U.S.C. 1061(2), and other minority-serving institutions, as described in 20 U.S.C. 1067q(a);
(3) National organizations, including veterans service organizations recognized by the Department of Veterans Affairs, and professional associations chartered by Congress under 36 U.S.C. Part B; and
(4) Other similar organizations and groups.
(d) The Department considers the availability of preference eligibles and veterans for appointment under this part, and develops and implements specific strategies to proactively recruit such individuals.
(a) The Department uses a variety of sources, including publicly available information, to identify individuals or groups of individuals for recruitment under this subpart.
(b) CTMS policy implementing this subpart addresses:
(1) Communication of opportunities for employment in the DHS-CS;
(2) Communication of the application processes to individuals being recruited under this part or applying for employment under this part; and
(3) Acceptance and treatment of applications for employment in the DHS-CS, including minimum application requirements established under this part.
(a) An individual being considered for employment in the DHS-CS may receive payment or reimbursement for travel to and from preemployment interviews, which may include participating in the assessment program described in § 158.520.
(b) The Department pays or reimburses interview expenses, described in paragraph (a) of this
(a) The Department determines individuals' CTMS qualifications under the assessment program described in this section. To be considered for employment in the DHS-CS, an individual must participate in the assessment program and meet applicable rating or scoring thresholds in each assessment process in which that individual participates.
(b) The Department establishes and administers an assessment program, with one or more assessment processes, based on CTMS qualifications. The assessment program is designed to efficiently and accurately determine individuals' CTMS qualifications.
(c) Each assessment process compares the qualifications of an individual to CTMS qualifications. The Department develops and administers each assessment process in accordance with applicable legal and professional guidelines governing the assessment and selection of individuals.
(d) An assessment process may use standardized instruments and procedures to measure qualifications. An assessment process may also use demonstrations of qualifications determined appropriate by the Secretary or designee, such as rewards earned from the cybersecurity competition described in Executive Order 13870, published, peer-reviewed cybersecurity research, or a cybersecurity invention or discovery granted a patent under 35 U.S.C. Part II.
(e) The Department makes available information to assist individuals in understanding the purpose of, and preparing for participation in, an assessment process.
(f) To maintain the objectivity and integrity of the assessment program, the Department maintains control over the security and release of materials relating to the assessment program, including assessment plans, validation studies, and other content. Except as otherwise required by law, the Department does not release the following:
(1) Sensitive materials relating to the design and administration of the assessment program;
(2) Names or lists of individuals applying for employment in the DHS-CS; and
(3) Results or relative ratings of individuals who participated in the assessment program.
(a)
(1) Meet U.S. citizenship requirements as described in governing Appropriation Acts; and
(2) Comply with Selective Service System requirements described in 5 U.S.C. 3328.
(b)
(1) Fitness standards and similar factors described in Executive orders, 5 CFR 302.203, and policies of the Department;
(2) Personnel security requirements related to fitness standards and similar factors described in paragraph (b)(1) of this section;
(3) Geographic mobility requirements; and
(4) Other criteria related to any aspect of appointment or employment, including selection, appointments, qualified positions, or assignments, or some or all of the foregoing.
(c)
(d)
(e)
(a) The Department selects an individual for employment in the DHS-CS based on the individual's CTMS qualifications, as determined under the assessment program described in § 158.520.
(b) Prior to finalizing the selection of an individual for employment in the DHS-CS, the Department considers the availability of preference eligibles for appointment under this part, including those recruited based on specific strategies described in § 158.510(d), who have participated in the assessment program and met applicable rating or scoring thresholds, as described in § 158.520(a). When a selection is imminent and there are both preference eligibles and non-preference eligibles undergoing final consideration, the Department regards status as a preference eligible as a positive factor in accordance with CTMS policy.
(c) The Department appoints an individual to a qualified position under the authority in 6 U.S.C. 658 and this part, and all such appointments are in the excepted service and are one of the following types of appointment:
(1) A renewable appointment under § 158.523(a);
(2) A continuing appointment under § 158.523(b); or
(3) An advisory appointment under § 158.523(c).
(d) As part of selecting an individual for employment in the DHS-CS and appointing an individual to a qualified position under this part, the Department:
(1) Determines applicable work and career structures, including the individual's initial work level, using the work valuation system described in § 158.404;
(2) Sets the individual's initial salary using the salary system as described in § 158.620; and
(3) Matches the individual with an initial assignment as described in § 158.703(c).
(e) No qualified position may be established through the non-competitive conversion of a current Federal employee from an appointment made outside the authority of this part to an appointment made under this part.
(f) An individual who accepts an appointment to a qualified position under this part voluntarily accepts an appointment in the excepted service.
(g) A DHS-CS employee serves in the same qualified position throughout a single continuing appointment under this part and throughout multiple, consecutive renewable or continuing appointments under this part, regardless of any changes in the employee's assignments, including primary DHS organization, or changes in the employee's official worksite.
(a)
(1)
(2)
(b)
(c)
(d)
(e)
(f)
(a) All individuals appointed under this part serve an initial service period that constitutes a probationary period of three years beginning on the date of appointment.
(b) Except as stated in paragraph (c) of this section, service in the DHS-CS counts toward completion of a current initial service period under paragraph (a) of this section. No other service in an appointment made outside the authority of this part may count toward completion of an initial service period under paragraph (a) of this section.
(c) Service as a DHS-CS advisory appointee, as a reemployed annuitant described in § 158.523(a)(1), or providing uncompensated service described in § 158.523(a)(2) does not count towards completion of an initial service period in a subsequent appointment to a qualified position.
(d) CTMS policy implementing this section addresses computation of each DHS-CS employee's initial service period, including accounting for working schedules other than full-time schedules described in § 158.705 and for periods of absence while in pay and nonpay statuses.
(a)
(1) Maintain communication with former DHS-CS employees to understand their interest in future service in the DHS-CS;
(2) Provide opportunities for former DHS-CS employees to be considered for appointment again to qualified positions; and
(3) Acknowledge former DHS-CS employees' enhancements to qualifications while outside the DHS-CS.
(b)
(1) Participate again in the assessment program described in § 158.520 for the Department to determine the former DHS-CS employee's current CTMS qualifications; and
(2) Meet employment eligibility and accept and satisfy applicable employment-related criteria as described in § 158.521.
(c)
(1) Time elapsed since the former DHS-CS employee's most recent appointment to a qualified position under this part;
(2) Similarity of cybersecurity work performed by the former DHS-CS employee since that individual's most recent appointment to a qualified position under this part; or
(3) Similarity of the former DHS-CS employee's CTMS qualifications during the former employee's most recent appointment under this part to the CTMS qualifications of a newly identified assignment under the deployment program in § 158.701.
(d)
(e)
To ensure the DHS-CS fulfills its purpose, as stated in § 158.202, the Secretary or designee aims to establish and administer a compensation system, described in § 158.602, that:
(a) Ensures the compensation for DHS-CS employees is sufficiently
(b) Values, encourages, and recognizes, in alignment with the DHS-CS core values described in § 158.305:
(1) Exceptional CTMS qualifications and mission impact,
(2) Excellence and innovation in the performance of DHS-CS cybersecurity work, and
(3) Continual learning to adapt to evolving cybersecurity risks and cybersecurity threats; and
(c) Acknowledges the unpredictable nature of cybersecurity work and the expectation that DHS-CS employees occasionally work unusual hours and extended hours, as needed, to execute the DHS cybersecurity mission, especially in response to exigent circumstances and emergencies, including cybersecurity incidents; and
(d) Reflects an understanding of the cybersecurity talent market, including:
(1) Leading compensation practices and trends,
(2) Current cybersecurity work expectations and arrangements, and
(3) An understanding of the concepts of total compensation and total rewards.
(a) The Secretary or designee establishes and administers a compensation system based on:
(1) The compensation strategy in § 158.601;
(2) Information from strategic talent planning described in § 158.401(c);
(3) Generally recognized compensation principles and practices; and
(4) Strategic talent priorities.
(b) The compensation system comprises:
(1) The salary system described in § 158.610; and
(2) Additional compensation described in § 158.603.
(a)
(b)
(1)
(2)
(c)
(1)
(i) Recognition under §§ 158.632 through 158.634;
(ii) Other special payments under §§ 158.640 through 158.643; and
(iii) Other types of compensation, including leave and benefits, authorized under §§ 158.650 through 158.654 and provided in accordance with relevant provisions of other laws.
(2)
(3)
(4)
(5)
(a)
(b)
(1) A DHS-CS employee's aggregate compensation means the total of the employee's salary, including any local cybersecurity talent market supplement, and the following types of additional compensation the employee receives under this part:
(i) Recognition payments;
(ii) Payments for special working conditions;
(iii) Payments for quarters allowances, overseas differentials and allowances, and remote worksite allowances, foreign currency allowances, and hostile fire pay; and
(iv) Other similar payments described in CTMS policy as being authorized under this part and provided in accordance with other relevant provisions of law.
(2) The following types of compensation a DHS-CS employee receives under this part are excluded from the employee's aggregate compensation:
(i) Payments or reimbursements for professional development and training;
(ii) CTMS student loan repayments;
(iii) CTMS allowances in nonforeign areas;
(iv) Back pay because of an unjustified or unwarranted talent management action;
(v) Severance pay;
(vi) Lump-sum payments for accumulated and accrued annual leave;
(vii) Voluntary separation incentive payments;
(viii) Payments for reservist differentials; and
(ix) Monetary value of any honorary recognition, leave, or other benefits.
(c)
(d)
The provisions of the following laws, among other similar laws, do not apply under CTMS, to the DHS-CS, or to talent management involving the individuals described in § 158.103:
(a) The following provisions of 5 U.S.C.:
(1) Chapter 51 regarding classification,
(2) Chapter 53 regarding pay rates and systems (except section 5379 regarding student loan repayments),
(3) Chapter 55, Subchapter V regarding premium pay (except section 5550a regarding compensatory time off for religious observances),
(4) Chapter 61 regarding work schedules (except sections 6103-6104 regarding holidays),
(5) Section 4502 regarding cash awards and time-off awards,
(6) Section 4503 regarding agency awards (except regarding honorary recognition),
(7) Section 4505a regarding performance-based cash awards,
(8) Sections 4507 and 4507a regarding presidential rank awards,
(9) Section 5307 regarding limitation on certain payments,
(10) Section 5384 regarding performance awards for the Senior Executive Service,
(11) Section 5753 regarding recruitment and relocation bonuses,
(12) Section 5754 regarding retention bonuses,
(13) Section 5755 regarding supervisory differentials, and
(14) Section 5757 regarding extended assignment incentives;
(b) The provisions of 29 U.S.C. 206 and 207 regarding minimum wage payments and overtime pay under the Fair Labor Standards Act of 1938, as amended; and
(c) The following provisions of 5 CFR:
(1) Part 451 regarding awards (except regarding honorary recognition);
(2) Part 511 regarding classification under the General Schedule;
(3) Part 530 regarding pay rates and systems;
(4) Part 531 regarding pay under the General Schedule;
(5) Part 534 regarding pay under other systems;
(6) Part 536 regarding grade and pay retention;
(7) Part 550, subparts A regarding premium pay, I regarding pay for duty involving physical hardship or hazard, M regarding firefighter pay, N regarding compensatory time off for travel, and P regarding overtime pay for border patrol agents;
(8) Part 551 regarding pay administration under the Fair Labor Standards Act;
(9) Part 575 regarding recruitment, relocation, and retention incentives, supervisory differentials; and extended assignment incentives; and
(10) Part 610 regarding hours of duty (except subpart B regarding holidays).
(a) Under the compensation system, described in § 158.602 of this part, the Department establishes and administers a salary system with the goals of maintaining:
(1) Sufficiently competitive salaries for DHS-CS employees as stated in § 158.601(a); and
(2) Equitable salaries among DHS-CS employees.
(b) The salary system comprises:
(1) At least one salary structure, described in § 158.611 of this part, bounded by the salary range described in § 158.613 and incorporating the salary limitations described in § 158.614;
(2) The process for providing a local cybersecurity talent market supplement described in § 158.612; and
(3) The salary administration framework described in §§ 158.620 through 158.622.
(a) Under the salary system, described in § 158.610, the Department establishes and administers one or more salary structures based on the strategy, information, principles and practices, and priorities listed in § 158.602(a).
(b) A salary structure:
(1) Is bounded by the salary range described in § 158.613;
(2) Incorporates, as described in paragraph (d) of this section, the salary limitations described in § 158.614; and
(3) May incorporate other salary and cost control strategies, such as control points.
(c) A salary structure includes subranges, within the salary range described in § 158.613 that are associated with work levels established by the work valuation system, described in § 158.404. Each such subrange is associated with at least one such work level.
(d) The Department incorporates the salary limitations described in § 158.614 into a salary structure by assigning each such salary limitation to at least one subrange of the salary structure. The Department assigns such salary limitations in ascending order to the subranges such that each subrange has a salary limitation that is greater than or equal to the salary maximum of that subrange.
(e) The Department may adjust a salary structure annually, or as the Secretary or designee determines necessary, based on the strategy, information, principles and practices, and priorities listed in § 158.602(a).
(a)
(b)
(1)
(2)
(c)
(d)
(2) The Department terminates a LCTMS a DHS-CS employee receives when the employee's official worksite, as determined under § 158.704, is no longer in a local cybersecurity talent market with an assigned local cybersecurity talent market supplement percentage, or the salary structure under which the employee's salary is provided no longer has an assigned local cybersecurity labor market supplement, or both.
(3) A reduction in salary for a DHS-CS employee because of a change in any LCTMS for that employee is not a reduction in pay for the purposes of 5 U.S.C. 7512 and 5 CFR part 752.
(e)
(a)
(b)
(c)
(1) The Secretary or designee may invoke the extended range for a DHS-CS employee when the Secretary or designee determines, based on the compensation strategy in § 158.601, that the employee's qualifications, the employee's mission impact, and mission-related requirements warrant adjusting the employee's salary beyond the standard range. The Secretary or designee must approve the salary adjustment of each such employee by name, and to receive a salary in the extended range the employee must either already be in a renewable appointment or accept a renewable appointment. While the employee is receiving a salary in an amount in the extended range, the Department may not change that employee's appointment to a continuing appointment.
(2) The Secretary or designee may invoke the extended range for an individual selected for appointment to a qualified position when the Secretary or designee determines, based on the compensation strategy in § 158.601, that the individual's qualifications, the individual's anticipated mission impact, and mission-related requirements warrant setting the individual's salary beyond the standard range. The Secretary or designee must approve the appointment of each such individual to a qualified position by name, and the individual must be appointed to a renewable appointment only. While that individual is receiving a salary under this part in an amount in the extended range, the Department may not change that individual's appointment to a continuing appointment at any time.
(d)
(a) The salary system, described in § 158.610, has the following limitations on maximum rates of salary that apply within the CTMS salary range described in § 158.613 of this part:
(1) The annual rate of basic pay for GS-15, step 10 under the General Schedule (excluding locality pay or any other additional pay as defined in 5 CFR chapter 1);
(2) The annual rate of basic pay for level IV of the Executive Schedule;
(3) The annual rate of basic pay for level II of the Executive Schedule;
(4) The annual rate of basic pay for level I of the Executive Schedule; and
(5) The total annual compensation payable to the Vice President under 3 U.S.C. 104.
(b) The Department may establish additional limitations on maximum rates of salary for the salary system.
(c) The salary system incorporates each limitation on maximum rates of salary described in this section into each salary structure established under § 158.611.
(a) The Department sets the salary for an individual accepting an appointment to a qualified position as part of selection and appointment of the individual, described in § 158.522. The Department sets the individual's salary within a subrange of a salary structure described in § 158.611 based on consideration of:
(1) The individual's CTMS qualifications, determined under the assessment program described in § 158.520;
(2) Applicable work and career structures, including the individual's initial work level, determined as part of selection and appointment under § 158.522;
(3) The individual's anticipated mission impact;
(4) Mission-related requirements; and
(5) Strategic talent priorities.
(b) In setting the salary for an individual appointed to a qualified position under this part, the Department may set the individual's salary without regard to any prior salary of the individual, including any salary or basic pay while serving in a previous appointment under this part or in another previous Federal appointment made outside the authority of this part.
(c) In setting the salary for an individual appointed to a qualified position under this part, the Department may provide a local cybersecurity talent market supplement described in § 158.612.
(a) The Department adjusts a DHS-CS employee's salary, or the salaries of a group of DHS-CS employees, by paying a recognition adjustment under
(b) The Department does not provide DHS-CS employees with any automatic salary increase or any salary increase based on length of service in the DHS-CS or in any position outside the DHS-CS.
(c) If the Department adjusts a salary structure under § 158.611(e) that results in an increase to the salary minimum for one or more subranges of the salary structure, for any DHS-CS employee receiving a salary in an affected subrange at the affected salary minimum, DHS adjusts the employee's salary to reflect the adjustment to the salary structure and the new salary minimum for the affected subrange. Such a salary adjustment is not considered a recognition adjustment under § 158.631.
(a) Except as stated in paragraph (b) of this section, the Department administers salary under this part in accordance with the provisions of 5 CFR part 550 regarding pay administration generally.
(b) The following provisions of 5 CFR part 550 do not apply to administering salary under this part and do not apply under CTMS, to the DHS-CS, or to talent management involving the individuals described in § 158.103 of this part:
(1) Subpart A regarding premium pay;
(2) Subpart I regarding pay for duty involving physical hardship or hazard;
(3) Subpart M regarding firefighter pay;
(4) Subpart N compensatory time-off for travel; and
(5) Subpart P regarding overtime for board patrol agents.
(c) The Department also administers salary under this part in accordance with the provisions of the following:
(1) 5 U.S.C. 5520, 42 U.S.C. 659 and 5 CFR parts 581 and 582, regarding garnishment;
(2) 31 U.S.C. 3702 and 5 CFR part 178 regarding claims settlement;
(3) 31 U.S.C. 3711 and 3716 and 31 CFR chapter IX parts 900 through 904 regarding debt collection;
(4) 5 U.S.C. Chapter 55 Subchapter VII regarding payments to missing employees; and
(5) Other relevant provisions of other laws specifically adopted in CTMS policy.
(d) For purposes of salary administration under this section, the Department administers salary based on consideration of a DHS-CS employee's work schedule under the work scheduling system, described in § 158.705, and may convert the employee's salary into an hourly rate, biweekly rate, or other rate.
(a)
(b)
(1) The individual's CTMS qualifications determined under the assessment program described in § 158.520;
(2) The individual's anticipated mission impact;
(3) Mission-related requirements; and
(4) Strategic talent priorities.
(c)
(d)
(1) Eligibility criteria;
(2) Requirements for documenting the reason and basis for recognition provided to a DHS-CS employee;
(3) Appropriate levels of review and approval for providing recognition;
(4) Any limitations on the total number, frequency, or amount of recognition a DHS-CS employee may receive within any specific time period;
(5) Any service agreement requirements; and
(6) Processes for evaluating the effectiveness of recognition in supporting the purpose of CTMS described in § 158.101, the purpose of the DHS-CS described in § 158.202, and the operationalization of the compensation strategy described in § 158.601.
(e)
(a) Under this section and § 158.630, the Department may provide a recognition adjustment to a DHS-CS employee for the reasons and bases stated in § 158.630(a). A recognition adjustment is an adjustment to the DHS-CS employee's salary provided under a salary structure described in § 158.611. A recognition adjustment does not alter any local cybersecurity talent market supplement for that employee.
(b) No DHS-CS employee may receive a recognition adjustment that would cause the employee's salary to exceed the salary range maximum described in § 158.613(d) or the applicable salary limitation assigned to the subrange of a salary structure as described in § 158.611(d) that contains the employee's salary. A DHS-CS employee may not receive a recognition adjustment that would cause the employee's salary amount to be in the extended range, described in § 158.613(c), unless the Secretary or designee invokes the extended range for that employee under § 158.613(c)(1).
(c) A recognition adjustment under this section is not a promotion for any purpose under Title 5 U.S.C. or 5 CFR.
(d) A recognition adjustment under this section for a DHS-CS advisory appointee is subject to additional requirements and restrictions in subpart J of this part.
(a) Under this section and § 158.630, and for the reasons and bases stated in § 158.630(a), the Department may provide a recognition payment to a DHS-CS employee in an amount of up to 20 percent, or up to 50 percent with approval of the Secretary or designee, of the receiving DHS-CS employee's
(b) Under this section and § 158.630, and for the reasons and bases stated in § 158.630(b) and as part of an offer of employment in the DHS-CS, the Department may offer a recognition payment to an individual selected for employment in the DHS-CS in an amount of up to 20 percent of the receiving individual's initial salary in the DHS-CS. The Department requires a service agreement of not less than six months and not more than three years as part of providing, upon appointment, a recognition payment to an individual selected for employment in the DHS-CS.
(c) The Department may provide a recognition payment as a lump sum payment, an installment payment, or a recurring payment.
(d) The Department may provide a recognition payment under this section to a former DHS-CS employee or to the legal heirs or estate of a former DHS-CS employee in accordance with 5 U.S.C. 4505.
(e) Acceptance of a recognition payment constitutes agreement for Federal Government use of any idea, method, device, or similar that is the basis of the payment.
(f) A recognition payment under this section is subject to and may be limited by the aggregate compensation limit described in § 158.604.
(g) A recognition payment is not salary under this part and is not basic pay for any purpose under 5 U.S.C. or 5 CFR.
(h) A recognition payment under this section is based on the following types of awards and incentives provided under 5 U.S.C.:
(1) Cash awards under 5 U.S.C. 4502;
(2) Agency awards under 5 U.S.C. 4503;
(3) Performance-based cash awards under 5 U.S.C. 4505a and 5384;
(4) Presidential rank awards under 5 U.S.C. 4507 and 4507a; and
(5) Recruitment, relocation, and retention incentives 5 U.S.C. 5753 and 5754.
(i) A recognition payment under this section is in lieu of the types of awards and incentives provided under 5 U.S.C. listed in paragraph (h) of this section, and a DHS-CS employee is ineligible to receive any such awards or incentives.
(j) An individual selected for employment in the DHS-CS is ineligible to receive, as part of the offer of employment, any other offer of a monetary award or incentive, a payment in addition to salary, or other monetary recognition from the Department except as provided in this section and § 158.630. An individual appointed to an advisory appointment is also ineligible to receive, as part of an offer of employment in the DHS-CS, any offer of recognition under this section.
(k) A recognition payment under this section for a DHS-CS advisory appointee is subject to additional requirements and restrictions in subpart J of this part.
(a) Under this section and § 158.630, and for the reasons and bases stated in § 158.630(a), the Department may provide recognition time-off to a DHS-CS employee for use within a designated timeframe not to exceed 26 work periods, as defined in § 158.705(c). Recognition time-off is time-off from duty without charge to leave or loss of compensation.
(b) Under this section and § 158.630, and for the reasons and bases stated in § 158.630(b) and as part of an offer of employment in the DHS-CS, the Department may offer up to 40 hours of recognition time-off to an individual selected for employment in the DHS-CS for use within a designated timeframe not to exceed 26 work periods, as defined in § 158.705(b). The Department may require a service agreement as part of providing, upon appointment, recognition time-off to an individual selected for employment in the DHS-CS.
(c) All recognition time-off provided, and the use of such time-off, must be recorded in a timekeeping system for purposes of salary administration and leave administration under this part.
(d) Recognition time-off provided under this section may not, under any circumstances, be converted to a cash payment to the receiving DHS-CS employee or any other type of time-off or leave.
(e) Recognition time-off under this section is based on time-off awards provided under the provisions of 5 U.S.C. 4502(e).
(f) Recognition time-off under this section is in lieu of the time-off awards provided under 5 U.S.C. 4502(e), and a DHS-CS employee is ineligible to receive any such awards.
(g) An individual selected for employment in the DHS-CS is ineligible to receive, as part of the offer of employment, any other offer of time-off or time-off award from the Department except as provided in this section and §§ 158.630 and 158.651. An individual appointed to an advisory appointment is also ineligible to receive, as part of an offer of employment in the DHS-CS, any offer of recognition under this section.
(h) A recognition time-off provided under this section to a DHS-CS advisory appointee is subject to additional requirements and restrictions in subpart J of this part.
(a) Under this section and § 158.630, the Department may establish one or more honorary recognition programs to provide honorary recognition to DHS-CS employees for the reasons and bases stated in § 158.630(a). The Department may incur necessary expenses for honorary recognition under an honorary recognition program established under this section.
(b) Honorary recognition under this section is based on honorary recognition provided under the provisions of 5 U.S.C. 4503, and a DHS-CS employee may be eligible to receive honorary recognition under 5 U.S.C. 4503 and 5 CFR part 451 in addition to any honorary recognition under this section.
(c) The Department may provide honorary recognition under this section to a former DHS-CS employee or to the legal heirs or estate of a former DHS-CS employee in accordance with 5 U.S.C. 4505.
(d) Honorary recognition under this section for a DHS-CS advisory appointee is subject to additional requirements in subpart J of this part.
(a) In alignment with the compensation strategy described in § 158.601 and the career development program described in § 158.803, the Department may provide professional development and training opportunities, payments, and reimbursements for DHS-CS employees.
(b) CTMS policy implementing this section addresses:
(1) Eligibility criteria;
(2) Requirements for documenting the reason and basis for professional development and training opportunities, payments, and reimbursements provided to a DHS-CS employee;
(3) Appropriate levels of review and approval for providing professional development and training opportunities, payments, and reimbursements;
(4) Any limitations on the total number or frequency of professional development and training opportunities, and any limitations on the total number, frequency, or amount of professional development and training payments and reimbursements a DHS-CS employee
(5) Any service agreement requirements;
(6) Requirements for communicating to DHS-CS employees and their supervisors about professional development and training opportunities; and
(7) Processes for evaluating the effectiveness of the professional development and training in supporting the purpose of CTMS described in § 158.101, the purpose of the DHS-CS described in § 158.202, and the operationalization of the compensation strategy described in § 158.601.
(c) Any payment or reimbursement under this section is excluded from the aggregate compensation limit described in § 158.604.
(d) Any payment or reimbursement under this section is not salary under this part and is not basic pay for any purpose under 5 U.S.C. or 5 CFR.
(e) Professional development and training under this section is based on the following training and professional development opportunities, payments, and reimbursements provided under 5 U.S.C.:
(1) Sabbaticals under 5 U.S.C. 3396;
(2) Academic degree training under 5 U.S.C. 4107;
(3) Expenses of training under 5 U.S.C. 4109;
(4) Expenses of attendance at meetings under 5 U.S.C. 4110; and
(5) Payment of expenses to obtain professional credentials under 5 U.S.C. 5757.
(f) In addition to any professional development and training under this section, a DHS-CS employee may be eligible to receive the training and professional development opportunities, payments, and reimbursements provided under 5 U.S.C. listed in paragraph (e) of this section.
(g) Professional development and training under this section for a DHS-CS advisory appointee is subject to additional requirements and restrictions in subpart J of this part.
(a) In alignment with the compensation strategy described in § 158.601, the Department may provide a student loan repayment to a DHS-CS employee under this section and in accordance with 5 U.S.C. 5379 and 5 CFR part 537, except that:
(1) The maximum payment amounts under 5 U.S.C. 5379 and 5 CFR part 537 do not apply, and the Department may provide and a DHS-CS employee may receive a student loan repayment under this section so long as such repayment does not exceed $16,500 per employee per calendar year and a total of $90,000 per employee;
(2) The minimum service period length of three years under 5 U.S.C. 5379 and 5 CFR part 537 does not apply, and instead the length of a minimum service period for a DHS-CS employee receiving a student loan repayment under this section is determined under CTMS policy and based on the amount of the repayment received by the employee; and
(3) Eligibility criteria related to time-limited appointments under 5 U.S.C. 5379 and 5 CFR part 537 do not apply, and a DHS-CS employee in a renewable appointment may receive a student loan payment under this section.
(b) In alignment with eligibility criteria under 5 U.S.C. 5379 and 5 CFR part 537:
(1) If the Department determines a DHS-CS employee's performance is unacceptable, as defined in 5 U.S.C. 4301(3), or the employee receives an unacceptable rating of record under § 158.804, or the Department determines the employee has engaged in misconduct, the employee is ineligible to receive a student loan repayment under this section.
(2) A DHS-CS advisory appointee is ineligible to receive a student loan repayment under this section.
(c) CTMS policy implementing this section addresses:
(1) Eligibility criteria;
(2) Requirements for documenting the reason and basis for a student loan repayment provided to a DHS-CS employee;
(3) Appropriate levels of review and approval for providing a student loan repayment;
(4) Service agreement requirements, including minimum service periods;
(5) Any additional limitations on student loan repayments; and
(6) Processes for evaluating the effectiveness of student loan repayments in supporting the purpose of CTMS described in § 158.101, the purpose of the DHS-CS described in § 158.202, and the operationalization of the compensation strategy described in § 158.601.
(d) Any student loan repayment provided under this section is excluded from the aggregate compensation limit described in § 158.604.
(e) Any student loan repayment provided under this section is not salary under this part and is not basic pay for any purpose under 5 U.S.C. or 5 CFR.
(a) In alignment with the compensation strategy described in § 158.601, the Department may establish a program to provide payments to DHS-CS employees to address special working conditions that are otherwise unaccounted for or the Department determines are accounted for insufficiently in DHS-CS employees' other types of additional compensation and salary.
(b) Special working conditions include circumstances in which a supervisor or other appropriate official requires a DHS-CS employee to perform DHS-CS cybersecurity work that involves, as determined by the Department:
(1) Unusual physical or mental hardship;
(2) Performing work at atypical locations, at unexpected times, or for an uncommon duration of time exceeding the expectation described in § 158.601(c) about working unusual hours and extended hours; or
(3) A combination of the conditions described in paragraphs (b)(1) and (2) of this section.
(c) A payment for special working conditions is a payment of up to 25 percent of the receiving DHS-CS employee's salary as computed for a work period, defined in § 158.705(b), or a series of work periods.
(d) The Department determines whether to establish, adjust, or cancel a program under this section based on information from:
(1) The work scheduling system described in § 158.705; and
(2) Strategic talent planning described in § 158.401(c), including information about current compensation practices of other cybersecurity employers analyzed under the talent market analysis described in § 158.403.
(e) The Department determines eligibility for a payment for special working conditions under this section and CTMS policy implementing this section.
(1) A DHS-CS employee who receives a payment for special working conditions under a program established under this section is not automatically eligible or entitled to receive any additional such payments.
(2) A DHS-CS employee receiving a salary equal to or greater than EX-IV is ineligible to receive a payment under this section.
(3) A DHS-CS advisory appointee is ineligible to receive a payment for special working conditions under this section.
(f) CTMS policy implementing this section addresses:
(1) Eligibility criteria;
(2) Requirements for documenting the reason and basis for payments for
(3) Appropriate levels of review and approval for providing payments for special working conditions;
(4) Any limitations on payments for special working conditions;
(5) Requirements for determining whether a payment for special working conditions is a lump sum payment, paid in installments, or a recurring payment; and
(6) Processes for evaluating the effectiveness of any special working conditions payment program in supporting the purpose of CTMS described in § 158.101, the purpose of the DHS-CS described in § 158.202, and the operationalization of the compensation strategy described in § 158.601.
(g) Any payment under this section is subject to and may be limited by the aggregate compensation limit described in § 158.604.
(h) Any payment under this section is not salary under this part and is not basic pay for any purpose under Title 5 U.S.C. or 5 CFR.
(i) A payment for special working conditions under this section is based on the following types of payments provided under 5 U.S.C.:
(1) Night, standby and hazardous duty differential under 5 U.S.C. 5545;
(2) Pay for Sunday and holiday work under 5 U.S.C. 5546; and
(3) Extended assignment incentives under 5 U.S.C. 5757.
(j) A payment for special working conditions under this section is in lieu of the types of payment provided under 5 U.S.C. listed in paragraph (g) of this section, and a DHS-CS employee is ineligible to receive any such payments under 5 U.S.C.
(a) A DHS-CS employee is eligible for and may receive an allowance under 5 U.S.C. 5941 and implementing regulations in 5 CFR part 591, subpart B, on the same basis and to the same extent as if the employee is an employee covered by those authorities.
(b) The Department provides an allowance described in paragraph (a) of this section to any DHS-CS employee who is eligible, as described in paragraph (a), for such allowance.
(c) Any allowance provided under this section is excluded from the aggregate compensation limit described in § 158.604.
(d) Any allowance provided under this section is not salary under this part and is not basic pay for any purpose under 5 U.S.C. or 5 CFR.
(e) Any allowance under this section for a DHS-CS advisory appointee is subject to additional requirements and restrictions in subpart J of this part.
In alignment with salary administration under § 158.622 and work scheduling under § 158.705, the Department provides holidays to a DHS-CS employee under this section and in accordance with 5 U.S.C. 6103-6104 and 5 CFR part 610, subpart B.
(a)
(1) Annual leave, as described in 5 U.S.C. Chapter 63, Subchapter I;
(2) Sick leave, as described in 5 U.S.C. Chapter 63, Subchapter I;
(3) Other paid leave, as described in 5 U.S.C. Chapter 63, Subchapter II;
(4) Voluntary transfers of leave, as described in 5 U.S.C. Chapter 63, Subchapter III;
(5) Voluntary leave bank programs, as described in 5 U.S.C. Chapter 63, Subchapter IV;
(6) Family and medical leave, as described in 5 U.S.C. Chapter 63, Subchapter V; and
(7) Leave transfer in disasters and emergencies, as described in 5 U.S.C. Chapter 63, Subchapter VI.
(b)
(c)
(d)
(e)
(f)
In alignment with salary administration under § 158.622 of this part and work scheduling under § 158.705, the Department provides compensatory time-off for religious observance to a DHS-CS employee under this section and in accordance with 5 U.S.C. 5550a and 5 CFR 550, subpart J.
(a) In alignment with salary administration under § 158.622, leave administration under § 158.651, and work scheduling under § 158.705, the Department provides benefits, including retirement, health benefits, and insurance programs, to a DHS-CS employee under this section and in accordance with 5 U.S.C. Chapters 81-90 and 5 CFR parts 831 and 838-894.
(b) The Department administers the benefits of an annuitant appointed to a qualified position in accordance with 5 U.S.C. 8344, 5 U.S.C. 8468, 5 CFR 553.203, or 5 CFR part 837, as applicable.
(c) The Department provides a transportation subsidy to a DHS-CS employee under this section and in accordance with 5 U.S.C. 7905.
(a) The Department provides the following other types of payments to a DHS-CS employee under this section and in accordance with the relevant provisions of law referenced in this section:
(1) Severance pay under this section, and the Department provides any severance pay in accordance with 5 U.S.C. 5595 and 5 CFR part 550, subpart G, except that separation from the DHS-CS because of a lapse or nonrenewal of a DHS-CS employee's appointment under this part or because of a DHS-CS employee's refusal to accepted a directed subsequent assignment, described in § 158.708, is not an involuntary separation, and the former DHS-CS employee is not entitled to severance pay.
(2) Lump-sum leave payouts under this section, and the Department provides any lump-sum leave payouts in accordance with 5 U.S.C. 5551 and 5552 and 5 CFR part 550, subpart L.
(3) Voluntary separation incentive payments under this section, and the
(4) Reservist differential under this section, and the Department provides any such differential in accordance with 5 U.S.C. 5538.
(5) Quarters allowances under this section, and the Department provides any such allowances in accordance with 5 U.S.C. Chapter 59, Subchapter II, the Department of State Standardized Regulations and any implementing supplements issued by the Department of State, and 5 CFR part 591, subpart C.
(6) Overseas differentials and allowances under this section, and the Department provides any such differentials and allowances in accordance with 5 U.S.C. Chapter 59, Subchapter III, the Department of State Standardized Regulations and any implementing supplements issued by the Department of State, and 5 CFR part 591, subpart C.
(7) Remote worksite allowances, foreign currency allowances, and hostile fire pay under this section, and the Department provides any such allowances and pay in accordance with 5 U.S.C. Chapter 59, Subchapter IV.
(8) Other similar payments described in CTMS policy as being authorized under this part and provided in accordance with relevant provisions of other laws.
(b) A payment for any quarter allowances, overseas differentials and allowances, and remote worksite allowances, foreign currency allowances, and hostile fire pay under paragraphs (a)(5) through (7) of this section is subject to and may be limited by the aggregate compensation limit described in § 158.604. A payment for any severance pay, lump-sum leave payout, voluntary separation inventive payment, and reservist differential under paragraphs (a)(1) through (4) of this section is not subject to the aggregate compensation limit described in § 158.604. A payment under paragraph (a)(8) of this section may be subject to and limited by the aggregate compensation limit described in § 158.604, as described in CTMS policy.
(c) Any payment under this section is not salary under this part and is not basic pay for any purpose under Title 5 U.S.C. or 5 CFR.
(a) For purposes of administering compensation authorized under §§ 158.650 through 158.654 in accordance with relevant provisions of other laws:
(1) The Department may convert a DHS-CS employee's salary into an hourly rate, biweekly rate, or other rate, and administer compensation based on consideration of the DHS-CS employee's work schedule under the work scheduling system described in § 158.705;
(2) A DHS-CS employee's hours of work and related computations are determined under the relevant provisions of law referenced in §§ 158.650 through 158.654 and CTMS policy implementing this section;
(3) A DHS-CS employee on a part-time schedule described in § 158.705 is treated as if the employee is serving “part-time career employment” defined in 5 CFR 340.101; and
(4) A DHS-CS employee on a contingent schedule described in § 158.705 is treated as if the employee is serving “intermittent employment” defined in 5 CFR 340.401.
(b) If, in administering compensation under §§ 158.650 through 158.654, the Department determines it is necessary to clarify the relationship between those sections and the relevant provisions of law referenced in those sections and any other relevant provisions of other laws, the Department will address the issue in new or revised CTMS policy.
(a)
(1) Guide when the Department uses CTMS to recruit and retain individuals possessing CTMS qualifications; and
(2) Operationalize aspects of the work valuation system, the talent acquisition system and the compensation system, described in §§ 158.404, 158.501, and 158.602 respectively.
(b) Under the deployment program, the Department:
(1) Designates qualified positions as described in § 158.702;
(2) Designates and staffs assignments as described in § 158.703;
(3) Determines and documents a DHS-CS employee's official worksite as described in § 158.704;
(4) Administers a work scheduling system as described in § 158.705; and
(5) Performs necessary recordkeeping as described in § 158.706.
(a) When a DHS organization requires individuals possessing CTMS qualifications to ensure the most effective execution of the DHS cybersecurity mission and the recruitment and retention of such individuals would likely be enhanced by using CTMS, the Secretary or designee designates qualified positions.
(b) CTMS policy implementing this section addresses:
(1) Procedures for DHS organizations to request using CTMS;
(2) Requirements for DHS organization using CTMS; and
(3) Information necessary to designate qualified positions.
(c) Designating qualified positions may result in:
(1) Establishing one or more qualified positions under the talent acquisition system, described in § 158.501; or
(2) Designating and staffing one or more assignments as described in § 158.703; or
(3) Both results described in paragraphs (c)(1) and (2) of this section.
(d) Designating qualified positions involves budget and fiscal considerations related to establishing one or more qualified positions under the talent acquisition system, described in § 158.501.
(a)
(b)
(1) Matching assignments with DHS-CS employees as described in paragraph (d) of this section;
(2) Matching assignments with newly appointed individuals as described in paragraph (c) of this section; or
(3) Seeking to recruit individuals and establish new qualified positions under the talent acquisition system described in § 158.501 and then matching assignments with newly appointed individuals as described in paragraph (c) of this section.
(c)
(1) Input from the individual;
(2) Input from DHS organizations;
(3) Mission-related requirements; and
(4) Strategic talent priorities.
(d)
(1) The Department matches a DHS-CS employee with a subsequent assignment based on the alignment of the employee's CTMS qualifications with the CTMS qualifications of an assignment. In matching a DHS-CS employee with a subsequent assignment, the Department may also consider:
(i) Input from the employee;
(ii) Input from DHS organizations, especially the primary DHS organization of the employee's current assignment;
(iii) Information about the employee from the performance management program described in § 158.802 and the career development program described in § 158.803;
(iv) Mission-related requirements; and
(v) Strategic talent priorities.
(2) A DHS-CS employee may have multiple assignments throughout the employee's service in a qualified position, but may only have one assignment at a time. A DHS-CS employee's subsequent assignments may have assignment information, described in § 158.706(e), that is different than the assignment information of the employee's initial assignment, including primary DHS organization.
(3) In alignment with the career development program described in § 158.803 and based on information from development reviews described in § 158.806 the Department communicates with DHS-CS employees on an ongoing basis about subsequent assignment opportunities;
(a)
(b)
(c)
(a)
(1) Agility for the Department in scheduling DHS-CS cybersecurity work to execute the DHS cybersecurity mission;
(2) Availability of DHS-CS employees to perform the DHS-CS cybersecurity work of their assignments;
(3) Clear expectations for DHS-CS employees about when they are expected to perform DHS-CS cybersecurity work associated with their assignments;
(4) Flexibility for DHS-CS employees in scheduling and performing DHS-CS cybersecurity work associated with their assignments; and
(5) Recording of, accounting for, and monitoring of hours worked by DHS-CS employees.
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(c)
(2) A DHS-CS employee's work schedule, and any minimum hours of work, may change during the employee's service in a qualified position and the Department records any such changes in the documentation associated with the employee's qualified position under § 158.706.
(d)
(2) A DHS-CS employee on a full-time schedule is expected to work at least 80 hours per work period.
(3) A DHS-CS employee on a part-time schedule is expected to work at least the employee's specified number of hours of work per work period.
(4) A DHS-CS employee on a contingent schedule is expected to work as necessary to perform the DHS-CS cybersecurity work associated with the employee's assignment, not to exceed the maximum number of total hours for the employee's appointment.
(5) DHS-CS employees must report hours worked by the employee. The Department monitors such hours for purposes of managing the DHS-CS, including considering any changes to DHS-CS employees' schedules, and administering compensation, including assisting in consideration of any additional compensation for DHS-CS employees under § 158.642.
(6) A DHS-CS employee on a full-time schedule or a part-time schedule must account for minimum hours of work by the conclusion of the last day of the work period. If the hours worked by the employee are less than the employee's minimum hours of work, the employee must use time-off approved by the employee's supervisor, or must be placed in an appropriate non-pay status for the purposes described in paragraphs (a)(1) and (2) of this section, to account for the difference between hours actually worked by the employee and the employee's minimum hours of work.
(7) A DHS-CS employee on a full-time schedule or a part-time schedule, in coordination with the employee's supervisor, may adjust when work hours are completed in a given work period, to ensure time-off for religious observance, while also completing minimum hours of work. A DHS-CS employee on a contingent schedule, in coordination with the employee's supervisor, may adjust when work hours are completed to ensure time-off for religious observance.
(e)
(1) Acknowledges the unpredictable nature of cybersecurity work and the expectation described in § 158.601(c) about working unusual hours and extended hours as needed; and
(2) Reflects an understanding of the cybersecurity talent market, especially current work expectations and arrangements.
(f)
(1) Procedures for determining, recording, and updating as necessary, DHS-CS employees' work schedules;
(2) Procedures for selecting and communicating anticipated work hours in advance and communicating variances from those work hours;
(3) Requirements regarding reporting and monitoring hours worked;
(4) Procedures for accounting for minimum hours of work; and
(5) Other work scheduling requirements for DHS-CS employees, including DHS-CS employees supporting specific DHS organizations. Such requirements may include designated days, hours, core hours, or limits on the number of work hours per day;
(a)
(b)
(1) CTMS qualifications and the DHS-CS cybersecurity work that can be performed through application of those qualifications;
(2) Applicable work and career structures established under the work valuation system described in § 158.404;
(3) Salary under the compensation system described in § 158.602;
(3) Assignment information described in paragraph (e) of this section;
(4) Official worksite described in § 158.704; and
(5) Work schedule described in § 158.705.
(c)
(d)
(e)
(1) Statement of cybersecurity work activities;
(2) Timeframe, such as anticipated duration;
(3) Primary DHS organization;
(4) Personnel security requirements;
(5) Location, such as official worksite determined under § 158.704;
(6) Information related to work scheduling under § 158.705; and
(7) Information related to the performance management program, including information relevant to appraisal reviews, mission impact reviews, and development reviews, described in subpart H of this part.
(f)
(a) DHS-CS employees serving in renewable appointments or continuing appointments may be detailed to:
(1) A position in the excepted service in another agency under 31 U.S.C. 1535;
(2) A position in the SES in another agency under 5 CFR 317.903;
(3) A position in the competitive service in another agency under 31 U.S.C. 1535 and 5 CFR 300.301, if approved by the Director of the Office of Personnel Management;
(4) Certain offices of the White House under 3 U.S.C.112;
(5) The Congress under 2 U.S.C. 4301(f);
(6) An international organization under 5 U.S.C. 3343; or
(7) Another detail opportunity under other provisions of applicable law.
(b) Individuals from outside the DHS-CS may not be detailed to a qualified position.
(c) DHS-CS employees serving in continuing appointments may be assigned to eligible non-Federal organizations under the Intergovernmental Personnel Act in accordance with 5 U.S.C. 3371-3375 and 5 CFR part 334.
(a) Occasionally, the Department may direct a subsequent assignment of a DHS-CS employee, and such a directed subsequent assignment may require a change in the employee's official worksite, determined under § 158.704. For such directed subsequent assignments of a DHS-CS employee, the Department pays or reimburses expenses or allowances under and in accordance with the Federal Travel Regulations at 41 CFR chapters 301 and 302, and for such directed assignments that are not temporary, DHS provides notice to and consultation with the employee as described in this paragraph.
(b) Directed subsequent assignments expected to last less than six months are considered temporary, and for purposes under the Federal Travel Regulations at 41 CFR chapters 301 and 302, are temporary duty.
(c) For such directed subsequent assignments expected to last six months or more and with an official worksite in a DHS-CS employee's current commuting area, defined in 5 CFR 550.703, the Department provides the employee written notice at least 30 calendar days before the effective date of the subsequent assignment. This notice requirement may be waived only when the employee consents in writing.
(d) For such directed subsequent assignments expected to last six months or more and with an official worksite outside of a DHS-CS employee's current commuting area, defined in 5 CFR 550.703, DHS consults with the employee on the reasons for, and the employee's preferences regarding, the proposed change in assignment. Following such consultation, the Department provides the employee written notice at least 90 calendar days before the effective date of the assignment. This notice requirement may be waived only when the employee consents in writing.
The provisions of laws, among other similar laws, listed in §§ 158.405, 158.502, and 158.605 do not apply under CTMS, to the DHS-CS, or to talent management involving the individuals described in § 158.103.
5 U.S.C. Chapters 41 and 43; 5 CFR parts 410 and 430.
As used in this subpart:
(a) In alignment with the DHS-CS's core values described in § 158.305 and the compensation strategy described in § 158.601, the Secretary or designee establishes and administers a systematic performance management program to:
(1) Establish and maintain individual accountability among DHS-CS employees;
(2) Manage, recognize, and develop the performance of each DHS-CS employee; and
(3) Improve effectiveness of DHS-CS employees in executing the DHS cybersecurity mission.
(b) The performance management program comprises the following ongoing reviews:
(1) Appraisal reviews described in § 158.804;
(2) Mission impact reviews described in § 158.805; and
(3) Development reviews described in § 158.806.
(c) To complete appraisal reviews, mission impact reviews, and development reviews for a DHS-CS employee, the Department may collect, on a periodic or ongoing basis, information and input from:
(1) The DHS-CS employee;
(2) Other DHS-CS employees;
(3) The employee's supervisor; and
(4) Other appropriate officials.
(a)
(1) Guide the career progression of each DHS-CS employee;
(2) Ensure development of the collective expertise of DHS-CS employees through continual learning; and
(3) Ensure continued alignment between the qualifications of DHS-CS employees and CTMS qualifications.
(b)
(1) Information from development reviews, described in § 158.806;
(2) Mission-related requirements; and
(3) Strategic talent priorities.
(c)
(d)
(a) Under 5 U.S.C. Chapter 43 and 5 CFR part 430, the Department establishes an appraisal program to review and evaluate the performance of DHS-CS employees to ensure DHS-CS employees' individual accountability.
(b) The appraisal program for DHS-CS employees includes one or more progress reviews, as defined in 5 CFR 430.203, and an appraisal of an employee's performance that results in a rating of record, as defined in 5 CFR 430.203.
(c) The Department addresses unacceptable performance, as defined in 5 U.S.C. 4301(3), under the provisions of 5 CFR part 432 or part 752. The CTMB may assist with any decision, or action, or both, made under the authority in this section and 5 CFR part 430 and 5 CFR part 432 or 752.
(d) If the Department determines a DHS-CS employee's performance is unacceptable or the employee receives an unacceptable rating of record, the employee is ineligible to receive recognition under §§ 158.630 through 158.634 and the employee may be excluded from mission impact reviews under § 158.805.
(a) The Department reviews a DHS-CS employee's mission impact throughout the employee's service in the DHS-CS and generates a mission impact summary at least annually. The Department may conduct mission impact reviews concurrently with development reviews.
(b) In reviewing a DHS-CS employee's mission impact, individually or as part of a group of DHS-CS employees, or both, the Department considers factors such as:
(1) Superior application of CTMS qualifications to perform DHS-CS cybersecurity work;
(2) Significant enhancements to CTMS qualifications;
(3) Special contributions to cybersecurity technologies, techniques, tactics, or procedures; and
(4) Notable improvements to execution of the DHS cybersecurity mission.
(c) The Department uses mission impact summary information to make distinctions among DHS-CS employees, such as comparing, categorizing, and ranking DHS-CS employees on the basis of mission impact to support decisions related to recognition for DHS-CS employees under §§ 158.630 through 158.634.
(a) The Department reviews a DHS-CS employee's career progression, as described in § 158.803(b) throughout the employee's service in the DHS-CS. The Department generates a development summary, at least annually, which may include plans for a DHS-CS employee's continual learning in alignment with the criteria for continual learning under the career development program described in § 158.803.
(b) As part of development reviews, the Department may compare, categorize, and rank DHS-CS employees to support decisions related to professional development and training under § 158.640. The Department may also use information from development reviews in matching subsequent assignments under § 158.703. The Department may conduct development reviews concurrently with mission impact reviews.
(a)
(b)
(c)
(1) Equal Employment Opportunity Commission, regarding discrimination under Federal anti-discrimination laws;
(2) Merit Systems Protection Board, regarding matters such as adverse actions under 5 U.S.C. Chapter 75 or Chapter 43 and individual rights of action under 5 U.S.C. Chapter 12;
(3) Office of Special Counsel, regarding matters such as whistleblower retaliation and other prohibited personnel practices under 5 U.S.C. 2302 and the Hatch Act (5 U.S.C. 7321
(4) Department of Labor, regarding matters covered by the Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. 4301
(d)
(a) DHS-CS employees, including such employees providing uncompensated service and DHS-CS advisory appointees, are employees covered by the Ethics in Government Act section 101(f)(3), and are subject to the criminal conflict of interest rules as well as government ethics requirements applicable to Federal employees, including:
(1) Criminal conflict of interest provisions in 18 U.S.C. 201-209;
(2) Ethics in Government Act, as amended, and implementing regulations in 5 CFR, Chapter XVI, Subchapter B, including financial disclosure reporting in 5 CFR part 2634 and the Standards of Ethical Conduct for Employees of the Executive Branch in 5 CFR part 2635;
(3) Supplemental Standards of Ethical Conduct for Employees of the Department of Homeland Security in 5 CFR part 4601; and
(4) Department policy.
(b) Under the ethics requirements described in paragraph (a) of this section, DHS-CS employees must seek approval for certain outside activities, comply with ethics program requirements, and other applicable laws, including post-government employment restrictions.
(a)
(b)
(1) Talent management actions covered by the employee input program;
(2) The process for DHS-CS employees to express input; and
(3) The interaction of the employee input program with relevant processes for redress with third parties of employment-related actions, including those described in § 158.901.
(a) An advisory appointment is an appointment to a qualified position that:
(1) The Secretary determines is of a policy-determining, policy-making, or policy-advocating character or involves a close and confidential working relationship with the Secretary or other key appointed officials;
(2) Does not have a salary set by statute; and
(3) Is not required to be filled by an appointment by the President.
(b) An advisory appointment to a qualified position is treated as a Schedule C position under 5 CFR 213.3301 except regarding appointment and compensation. Talent management for a DHS-CS advisory appointee is in accordance with the provisions of 5 CFR applicable to Schedule C appointees, except that appointment and compensation for a DHS-CS advisory appointee is governed by this part.
(c) Employment restrictions such as those concerning the criminal conflict of interest statutes, standards of ethical conduct, partisan political activity, and contained in laws such as Executive Orders, government-wide ethics regulations and the Hatch Act (5 U.S.C. 7321
(d) The Department tracks and coordinates advisory appointments with the Executive Office of the President and the Office of Personnel Management (OPM), as appropriate.
(a) Appointment of an individual, including a former DHS-CS employee, to an advisory appointment is governed by this subpart J and subpart E of this part.
(b) An individual for appointment to an advisory appointment must participate in the assessment program described in § 158.520. The Secretary or designee must approve the appointment of an individual to an advisory appointment by name, and an individual appointed to an advisory appointment serves at the will of the Secretary.
(c) A DHS-CS advisory appointee may be removed at any time. In accordance with 5 U.S.C. 7511(b), the provisions of 5 U.S.C. Chapter 75, subchapter II do not apply to talent management actions taken under this part for a DHS advisory appointee.
(d) An advisory appointment terminates no later than the end of the term of the U.S. President under which the advisory appointee was appointed.
(e) The Secretary or designee establishes a limit on the number of advisory appointments under this subpart J, and the total number of advisory appointments under this subpart may not exceed that limit at any time.
(f) The Department may not change an advisory appointment to a renewable appointment or continuing appointment.
(g) The Department may not use an advisory appointment solely or primarily for the purpose of detailing any individual to the White House.
(a)
(b)
(c)
(1)
(2)
(3)
(4)
(d)
(1)
(i) Recognition adjustments under § 158.631, except the Secretary or designee must approve any such recognition for a DHS-CS advisory appointee;
(ii) Recognition payments under § 158.632, except the Secretary or designee must approve any such recognition for a DHS-CS advisory appointee;
(iii) Recognition time-off under § 158.633, except the Secretary or designee must approve any such recognition for a DHS-CS advisory appointee;
(iv) Honorary recognition under § 158.634;
(v) Professional development and training under § 158.640, so long as a professional development and training program described in § 158.640 explicitly covers DHS-CS advisory appointee and prohibits such employees from receiving any payment or reimbursement for costs of academic degree training or expenses to obtain professional credentials, including examinations to obtain such credentials;
(vi) Allowances in nonforeign areas under § 158.643; and
(vii) Other types of compensation, including leave and benefits, authorized under §§ 158.650 through 158.655 and provided in accordance with relevant provisions of other laws.
(2)
(3)
(i) The aggregate compensation limit described in § 158.604;
(ii) Prohibitions in 5 U.S.C. 4508, guidance from the Office of Management and Budget and Office of Personnel Management, and any other provisions of law governing compensation for political appointees; and
(iii) Other requirements and restrictions in CTMS policy.
(e)
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service or USFWS), propose to list six Central Texas mussel species: The Guadalupe fatmucket (
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Rd., Suite 200, Austin, TX 78758; telephone (512) 490-0057. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
Under the Act, for any species that is determined to be threatened, we must provide protective regulations to provide for the conservation of that species. For the Texas fawnsfoot, we are proposing to prohibit take and possession.
Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 4(b)(2) of the Act states that the Secretary must make the designation on
Our species status assessment report (SSA report) documents the results of the comprehensive biological status review for the central Texas mussels and provides an account of the species' overall viability through forecasting of the species' condition in the future (Service 2019a, entire). Additionally, the SSA report contains our analysis of required habitat and the existing conditions of that habitat.
We sought comments from independent specialists on the SSA report to ensure that our proposal is based on scientifically sound data and analyses. We received feedback from six scientists with expertise in freshwater mussel biology, ecology, genetics, climate science, and hydrology as peer review of the SSA report. The reviewers were generally supportive of our approach and made suggestions and comments that strengthened our analysis. The SSA report and other materials relating to this proposal can be found at
Because we will consider all comments and information received during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that any of these species are threatened instead of endangered, or endangered instead of threatened, or we may conclude that any of these species do not warrant listing as either an endangered species or a threatened species. Such final decisions would be a logical outgrowth of this proposal, as long as we: (a) Base the decisions on the best scientific and commercial data available after considering all of the relevant factors; (2) do not rely on factors Congress has not intended us to consider; and (3) articulate a rational connection between the facts found and the conclusions made, including why we changed our conclusion.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of these species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics, genomics, systematics, and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, abundance, and current and projected trends; and
(e) Past and ongoing conservation measures for these species, their habitats, or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of these species, including the locations of any additional populations of the Central Texas mussels.
(5) Information on regulations that are necessary and advisable to provide for the conservation of the Texas fawnsfoot and that the Service can consider in developing a 4(d) rule for the species. In particular, information concerning the extent to which we should include any of the section 9 prohibitions in the 4(d) rule or whether any other forms of take should be excepted from the prohibitions in the 4(d) rule.
(6) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act, including information to inform the following factors such that a designation of critical habitat may be determined to be not prudent:
(a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;
(b) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
(d) No areas meet the definition of critical habitat.
(7) Specific information on:
(a) The amount and distribution of habitat for all six Central Texas mussels;
(b) What areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the species, should be included in the designation and why;
(c) Any additional areas occurring within the range of the species,
(d) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(e) What areas not occupied at the time of listing are essential for the conservation of the species. We particularly seek comments:
(i) Regarding whether occupied areas are inadequate for the conservation of the species;
(ii) Providing specific information that supports the determination that unoccupied areas will, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species; and
(iii) Explaining whether or not unoccupied areas fall within the definition of “habitat” at 50 CFR 424.02 and why.
(8) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.
(10) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts and any additional information regarding probable economic impacts that we should consider.
(11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. If you think we should exclude any additional areas, please provide credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion.
(12) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
We have scheduled two public informational meetings and public hearings on this proposed rule to list the Central Texas mussels as endangered or threatened species with critical habitat. We will hold the public informational meetings and public hearings on the date and at the times listed above under
The public hearings will provide interested parties an opportunity to present verbal testimony (formal, oral comments) regarding this proposed rule. While the public informational meetings will be opportunities for dialogue with the Service, the public hearings are not: They are a forum for accepting formal verbal testimony. In the event there is a large attendance, the time allotted for oral statements may be limited. Therefore, anyone wishing to make an oral statement at the public hearing for the record is encouraged to provide a prepared written copy of their statement to us through the Federal eRulemaking Portal, or U.S. mail (see
Table 1, below, summarizes the petition history and proposed status of the Central Texas mussels under the Endangered Species Act. On June 25, 2007, we received a formal petition dated June 18, 2007, from Forest Guardians (now WildEarth Guardians), for 475 species in the southwestern United States. The petitioned group of species included the Texas fatmucket.
On October 15, 2008, we received a petition dated October 9, 2008, from WildEarth Guardians, requesting that the Service list as threatened or endangered and designate critical habitat for six species of freshwater mussels, including the Texas pimpleback, Texas fawnsfoot, and false spike.
On December 15, 2009, we published our 90-day finding that the above petitions presented substantial scientific information indicating that listing the Texas fatmucket, Texas pimpleback, Texas fawnsfoot, and false spike may be warranted (74 FR 66260). As a result of
The distribution of the newly described Guadalupe orb was previously fully contained within the distribution of the Texas pimpleback. Genetic information received in 2018 (Burlakova
This document constitutes our concurrent 12-month warranted petition finding for the false spike and proposed listing rule and proposed critical habitat rule for all six Central Texas mussel species.
Freshwater mussels, including the six Central Texas mussels, have a complex life history involving parasitic larvae, called glochidia, which are wholly dependent on host fish. As freshwater mussels are generally sessile (immobile), dispersal is accomplished primarily through the behavior of host fish and their tendencies to travel upstream and against the current in rivers and streams. Mussels are broadcast spawners; males release sperm into the water column, which is taken in by the female through the incurrent siphon (the tubular structure used to draw water into the body of the mussel). The developing larvae remain with the female until they mature and are ready for release as glochidia, to attach on the gills, head, or fins of fishes (Vaughn and Taylor 1999, p. 913; Barnhart
Glochidia die if they fail to find a host fish, attach to the wrong species of host fish, attach to a fish that has developed immunity from prior infestations, or attach to the wrong location on a host fish (Neves 1991, p. 254; Bogan 1993, p. 599). Successful glochidia encyst (enclose in a cyst-like structure) on the host's tissue, draw nutrients from the fish, and develop into juvenile mussels (Arey 1932, pp. 214-215). The glochidia will remain encysted for about a month through a transformation to the juvenile stage. Once transformed, the juveniles will excyst from the fish and drop to the substrate.
Freshwater mussel species vary in both onset and duration of spawning, how long developing larvae are held in the marsupial gill chambers (gills used for holding eggs and glochidia), and which fish species serve as hosts. The mechanisms employed by mussel species to increase the likelihood of interaction between host fish and glochidia vary by species.
Mussels are generally immobile; their primary opportunity for dispersal and movement within the stream comes when glochidia attach to a mobile host fish (Smith 1985, p. 105). Upon release from the host, newly transformed juveniles drop to the substrate on the bottom of the stream. Those juveniles that drop in unsuitable substrates die because their immobility prevents them from relocating to more favorable habitat. Juvenile freshwater mussels burrow into interstitial substrates and grow to a larger size that is less susceptible to predation and displacement from high flow events (Yeager
Host specificity can vary across mussel species, which may have specialized or generalized relationships with one or more taxa of fish. Mussels have evolved a wide variety of adaptations to facilitate transmission of glochidia to host fish including: Display/mantle lures mimicking fish or invertebrates; packages of glochidia (conglutinates) that mimic worms, insect larvae, larval fish, or fish eggs; and release of glochidia in mucous webs that entangle fish (Strayer
The Guadalupe fatmucket (
The Guadalupe fatmucket is a small to medium-sized freshwater mussel (to 4 inches (in) (100 millimeters (mm))) that exhibits sexual dimorphism and has a yellow-green-tan shell, and is similar in appearance to the Texas fatmucket (a more detailed description of the Texas fatmucket is found in Howells
Guadalupe fatmucket is currently found in one population, which occurs in 54 miles (87 km) of the Guadalupe River basin in Kerr and Kendall Counties, Texas (Randklev
A thorough review of the taxonomy, life history, and ecology of the Texas fatmucket is presented in the SSA report. Texas fatmucket has been characterized as a rare Texas endemic (Burlakova
The Texas fatmucket is a small to medium-sized freshwater mussel (to 4 in (100 mm)) that exhibits sexual dimorphism (males and females have different shapes) and has a yellow-
Host fishes for Texas fatmucket are members of the Family Centrarchidae (sunfishes) including bluegill (
Related species can expel conglutinates (packets of glochidia) and are known to use mantle lures (Barnhart
Related species in the genus
Texas fatmucket currently occur only in the upper reaches of major tributaries within the Colorado River basin (Randklev
The Texas fawnsfoot was originally described as
Texas fawnsfoot is a small- to medium-sized (2.4 in (60 mm)) mussel with an elongate oval shell (Howells 2014, p. 111). For a detailed description, see Howells
Host fish species are not confirmed for the Texas fawnsfoot, but we conclude they use freshwater drum (
Texas fawnsfoot are found in medium- to large-sized streams and rivers with flowing waters and mud, sand, and gravel substrates (Howells 2014, p. 111). Adults are most often found in bank habitats and occasionally in backwater, riffle, and point bar habitats, with low to moderate velocities that appear to function as flow refuges during high flow events (Randklev
Texas fawnsfoot occurs in the lower reaches of the Colorado and Brazos Rivers, and in the Trinity River (Randklev
Burlakova
The Guadalupe orb occurs only in the Guadalupe River basin in two separate and isolated populations: The upper Guadalupe River and the lower Guadalupe River (table 5; figure 4). An isolated individual not considered part of a functioning population has been found in the Blanco River, a tributary to the San Marcos River (Johnson
The Texas pimpleback was originally described as
Recent laboratory studies of the closely related Guadalupe orb suggest that channel catfish (
Texas pimpleback occurs in the Colorado River basin in five isolated populations: Concho River, Upper San Saba River, Lower San Saba River/Colorado River, Llano River, and the Lower Colorado River (table 6; figure 5). Only the Lower San Saba and Llano River populations are known to be successfully reproducing. Texas pimpleback was historically distributed throughout the Colorado River basin (Howells 2014, pp. 93-94; reviewed in Randklev
The false spike is native to the Brazos, Colorado, and Guadalupe basins in central Texas (Howells 2010, p. 4; Randklev
The false spike was originally described as
The false spike is a medium-sized freshwater mussel (to 5.2 in (132 mm)) with a yellow-green to brown or black elongate shell, sometimes with greenish rays. For a detailed description see Howells
Based on closely related species, false spike likely brood eggs and larvae from early spring to late summer and host fish are expected to be minnows (family Cyprinidae) (Pfeiffer
Related species in the genus
False spike occur in larger creeks and rivers with sand, gravel, or cobble substrates, and in areas with slow to moderate flows. The species is not known from impoundments, nor from deep waters (Howells 2014, p. 85).
False spike was once considered common wherever it was found; however, beginning in the early 1970s, the species began to be regarded as rare throughout its range, based on collection information (Strecker 1931, pp. 18-19; Randklev
Currently, the false spike occurs in four populations: In the Little River and some tributaries (Brazos River basin), the lower San Saba and Llano Rivers (Colorado River basin), and in the lower Guadalupe River (Guadalupe River Basin) (table 7; figure 6). For more information on these populations, see the SSA report. False spike is presumed to have been extirpated from the remainder of its historical range throughout the Brazos, Colorado, and Guadalupe Basins of central Texas (reviewed in Randklev
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an “endangered species” or a “threatened species.” The Act defines an endangered species as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects (
We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.
However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.
The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term foreseeable future extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.
The SSA report documents the results of our comprehensive biological status review for the Guadalupe fatmucket, Texas fatmucket, Texas fawnsfoot, Guadalupe orb, Texas pimpleback, and false spike, including an assessment of the potential stressors to each species. The SSA report does not represent a decision by the Service on whether the species should be proposed for listing as endangered or threatened species under the Act. The SSA report provides the scientific basis that informs our regulatory decision, which involves the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R2-ES-2019-0061 on
To assess the viability of the six Central Texas mussels, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages. During the first stage, we evaluated individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. This process used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.
In this discussion, we review the biological condition of the species and their resources, and the threats that influence the species' current and future conditions, in order to assess the species' overall viability and the risks to that viability.
Using various timeframes and the current and projected future resiliency, redundancy, and representation, we describe the species' levels of viability over time. For the Central Texas mussels to maintain viability, their populations or some portion thereof must be resilient. A number of factors influence the resiliency of Central Texas mussel populations, including occupied stream length, abundance, and recruitment. While some of the six species have life-history adaptations that help them tolerate dewatering and other stressors to some extent, each of these stressors diminishes the resiliency of populations to some degree and especially in combination. Elements of the species' habitat that determine whether Central Texas mussel populations can grow to maximize habitat occupancy influence those factors, thereby increasing the resiliency of populations. These
Evidence of reproduction is demonstrated by repeated captures of small-sized individuals (juveniles and subadults near the low end of the detectable range size ~35 mm; Randklev
We reviewed the potential risk factors (
Juvenile and adult Central Texas mussels inhabit microsites that have abundant interstitial spaces, or small openings in an otherwise closed matrix of substrate, created by gravel, cobble, boulders, bedrock crevices, tree roots, and other vegetation. Inhabited interstitial spaces have some amount of fine sediment (
Under a natural flow regime, a stream's sediment load is in equilibrium such that as sediments are naturally moved downstream from one microsite to another, the amount of sediment in the substrate is relatively stable, given that different reaches within a river or stream may be aggrading (gaining) or degrading (losing) sediment (Poff
In the range of the Central Texas mussels, these sources include streambank erosion from development, agricultural activities, livestock and wildlife grazing and browsing, in-channel disturbances, roads, and crossings, among others (Poff
All populations of Central Texas mussels face the risk of fine sediment accumulation to varying degrees. Multiple populations of the six Central Texas mussel species are experiencing increased sedimentation, including in particular the Clear Fork Brazos River (Texas fawnsfoot), middle and lower Brazos River (false spike and Texas fawnsfoot), and lower Colorado River (Texas pimpleback, Texas fawnsfoot). In the future, we expect sediment deposition to continue to increase across the range of all six species due to low water levels and decreasing frequency of cleansing flows at all populations and for longer periods due to climate change and additional human development in the watershed.
Freshwater mussels and their host fish require water in sufficient quantity and quality on a consistent basis to complete their life cycles. Urban growth and other anthropogenic activities across Texas are placing increased demands on limited freshwater resources that, in turn, can have deleterious effects on water quality. Water quality can be degraded through contamination or alteration of water chemistry. Chemical contaminants are ubiquitous throughout the environment and are a major reason for the current declining status of freshwater mussel species nationwide (Augspurger
Chemicals enter the environment through both point and nonpoint source discharges, including hazardous spills, industrial wastewater, municipal effluents, and agricultural runoff. These sources contribute organic compounds, trace metals, pesticides, and a wide variety of newly emerging contaminants (
Ammonia is of particular concern below wastewater treatment plants because freshwater mussels are particularly sensitive to increased ammonia levels (Augspurger
Municipal wastewater contains both ionized and un-ionized ammonia, and wastewater discharge permits issued by Texas Commission on Environmental
An additional type of water quality degradation that affects the Central Texas mussels is alteration of water quality parameters such as dissolved oxygen, temperature, and salinity levels. Dissolved oxygen levels may be reduced from increased nutrient inputs or other sources of organic matter that increase the biochemical oxygen demand in the water column as microorganisms decompose waste. Organic waste can originate from storm water or irrigation runoff or wastewater effluent, and juvenile mussels seem to be particularly sensitive to low dissolved oxygen (with sublethal effects evident at 2 ppm and lethal effects evident at 1.3 ppm; Sparks and Strayer 1998, pp. 132-133). Increased water temperature (over 30 °C and approaching 40 °C) from climate change and from low flows during drought can exacerbate low dissolved oxygen levels in addition to other drought-related effects on both juvenile and adult mussels (Sparks and Strayer 1998, pp. 132-133). Finally, high salinity concentrations are an additional concern in certain watersheds, where dissolved salts can be particularly limiting to Central Texas mussels. Upper portions of the Brazos and Colorado Rivers, originating from the Texas High Plains, contain saline water, sourced from both natural geological formations, and from oil and gas development. Salinity in river water is diluted by surface flow and as surface flow decreases salt concentrations increase, resulting in adverse effects to freshwater mussels. Even low levels of salinity (2-4 parts per thousand (ppt)) have been demonstrated to have substantial negative effects on reproductive success, metabolic rates, and survival of freshwater mussels (Blakeslee
Water quality and quantity are interdependent, so reductions in surface flow from drought, instream diversion, and groundwater extraction serve to concentrate contaminants by reducing flows that would otherwise dilute point and non-point source pollution. For example, salinity inherently poses a greater risk to aquatic biota under low flow conditions as salinity concentrations and water temperatures increase. Drought conditions can place additional stressors on stream systems beyond reduced flow by exacerbating contaminant-related effects to aquatic biota, including Central Texas mussels. Not only can temperature be a biological, physical, and chemical stressor, the toxicity of many pollutants to aquatic organisms increases at higher temperatures (
Central Texas mussels are adapted to flowing water (lotic habitats) rather than standing water (lentic habitats) and require free-flowing water to survive. Low flow events (including stream drying) and inundation can eliminate habitat appropriate for Central Texas mussels, and while these species can survive these events for a short duration, populations that experience prolonged drying events or repeated drying events will not persist over time.
Inundation has primarily occurred upstream of dams, both large (such as the Highland Lakes on the Colorado River and other major flood control and water supply reservoirs) and small (low water crossings and diversion dams typical of the tributaries and occurring usually on privately owned lands throughout Central Texas). Inundation causes an increase in sediment deposition, eliminating the crevices that many Central Texas mussel species inhabit. Inundation also includes the effects of reservoir releases where frequent variation in surface water elevation acts to make habitats unsuitable for Central Texas mussels. In large reservoirs, deep water is very cold and often devoid of oxygen and necessary nutrients. Cold water (less than 11 °Celsius (C) or 52 °F (F)) stunts mussel growth and delays or hinders spawning. The Central Texas mussels do not tolerate inundation under large reservoirs. Further, deep-water reservoirs with bottom release (like Canyon Reservoir) can affect water temperatures several miles downriver. The water temperature remains below 21.1 °C for the first 3.9 miles (6.3 km) of the 13.8-mile (22.2-km) Canyon Reservoir tailrace (Texas Parks and Wildlife Department (TPWD) 2007c, p. ii), cold enough to support a recreational non-native rainbow and brown trout fishery.
The construction of dams, inundation of reservoirs, and management of water releases have significant effects on the natural hydrology of a river or stream. For example, dams trap sediment in reservoirs, and managed releases typically do not conform to the natural flow regime (
Operation of flood-control, water-supply, and recreation reservoirs results in altered hydrologic regimes, including an attenuation of both high- and low-flow events. Flood-control dams store floodwaters and then release them in a controlled manner; this extended release of flood waters can result in significant scour and loss of substrates that provide mussel habitat. Along with this change in the flow of water, sediment dynamics are affected as sediment is trapped above and scoured below major impoundments. These changes in water and sediment transport
There are numerous dams throughout the range of Central Texas mussels. There are now 27 major reservoirs in the Brazos River basin (16 have >50,000 acre-feet of storage) (Brazos River and Associated Bay Estuary System Basin and Bay Expert Science Team (BBEST) 2012, p. 33); 31 major reservoirs in the Colorado River basin, including the Highland Lakes (Texas Water Development Board (TWDB) 2018d, p. 1); 9 major reservoirs on the Guadalupe River (BBEST 2011b, p. 2.2); and 31 major reservoirs in the Trinity River basin (BBEST 2009, p. 10). These reservoirs, subsequent inundation, and resulting fragmentation of mussel populations has been the primary driver of the current distribution of the Central Texas mussels. Additional reservoirs are planned for the future, including the Cedar Ridge Reservoir, proposed by the City of Abilene on the Clear Fork of the Brazos River near the town of Lueders, Texas (83 FR 16061), and more than one reservoir is proposed to be built off the main channel of the Lower Colorado River in Wharton and Colorado Counties, Texas (Lower Colorado River Authority (LCRA) 2018c, p. 1). The Allens Creek Reservoir is proposed for construction on Allens Creek near the City of Wallis, to provide water supply and storage for the City of Houston (Brazos River Authority (BRA) 2018b, p. 1). Water that is planned to be pumped from the Brazos River during high flows will be stored and released back into the river to meet downstream needs during periods of low flow.
Extreme water levels—both low flows and high flows—threaten population persistence of the Central Texas mussels. The effects of population losses associated with excessively low flows are compounded by population losses associated with excessively high flows. Whereas persistent low flow during times of drought results in drying of mussel habitats and desiccation of exposed mussels, rapid increases in flows associated with large-scale rain events and subsequent flooding results in scour of the streambed and physical displacement of mussels and appropriate substrates. Appropriately-sized substrates are moved during scouring high flow events and mussels are transported downstream to inappropriate sites or are buried by inappropriately sized materials. The Central Texas mussels are experiencing a repeating cycle of alternating droughts and flooding that, in combination with hydrological alterations, threatens population persistence.
Droughts that have occurred in the recent past have led to extremely low flows in several Central Texas rivers. Many of these rivers have some resiliency to drought because they are spring-fed (Colorado River tributaries, Guadalupe River), are very large (lower Brazos and Colorado Rivers), or have significant return flows (Trinity River), but drought in combination with increased groundwater pumping may lead to lower river flows of longer duration than have been recorded in the past. Reservoir releases can be managed to some extent during drought conditions to prevent complete dewatering below many major reservoirs. During the months of July and August 2018, the Clear Fork Brazos, Concho, San Saba, Llano, Pedernales, and upper Colorado and upper Guadalupe Rivers all had very low flows (U.S. Geological Survey (USGS) 2019).
Streamflow in the Colorado River above the Highland Lakes and downstream of the confluence with Concho River has been declining since the 1960s as evidenced by annual daily mean streamflow (USGS 2008b, pp. 812, 814, 848, 870, 878, 880), and overall river discharge for each of the rivers can be expected to continue to decline due to increased drought as a result of climate change, absent significant return flows. There are a few exceptions including the Llano River at Llano (USGS 2008b, p. 892), Pedernales River at Fredericksburg (USGS 2008b, p. 896), Onion Creek near Driftwood, and Onion Creek at Highway 183 (flows appear to become more erratic, characteristic of a developing watershed; USGS 2008b, pp. 930, 946). In the San Saba River, continuing or increasing surface and alluvial aquifer groundwater withdrawals in combination with drought is likely to result in reduced streamflow, affecting mussels in the future (Randklev
Flows have declined due to drought in the Brazos River in recent years upstream of Lake Whitney (USGS 2008b, pp. 578, 600, 626, 638; BRA 2018e, p. 6), although baseflows are maintained somewhat due to releases from Lake Granbury and other reservoirs in the upper basin (USGS 2008b, p. 644; BRA 2018e, p. 6). In the middle Brazos, U.S. Army Corps of Engineers (USACE) dams have reduced the magnitude of floods on the mainstem of the Brazos River downstream of Lake Whitney (USGS 2008b, pp. 652, 676 766, 776; BRA 2018e, p. 6), while flows in the lower Brazos and Navasota Rivers appear to have higher baseflows due to water supply operations in the upper basin that deliver to downstream users (USGS 2008b, pp. 754, 766, 776; BRA 2018e, p. 6). Lake Limestone releases also appear to be contributing to higher base flows in the Lower Brazos (BRA 2018e, p. 6). Flows have declined in the upper Guadalupe River (USGS 2008b, pp. 992, 994, 1000, 1018) but appear relatively unchanged at Comfort and Spring Branch and in the San Marcos River (USGS 2008b, pp. 1004, 1006, 1022), and in the lower Guadalupe River (USGS 2008b, pp. 1036, 1040). In the lower sections of the Colorado River, lower flows and reduced high flow events are more common now decades after major reservoirs were constructed (USGS 2008b, pp. 964, 966). In the Trinity River, low flows are higher (elevated baseflows) than they were in the past (USGS 2008b, pp. 370, 398, 400, 430) because of substantial return flows from Dallas area wastewater treatment plants.
Many of the tributary streams (
Low-flow events lead to increased risk of desiccation (physical stranding and drying) and exposure to elevated water temperature and other water quality degradations, such as contaminants, as well as to predation. For example, sections of the San Saba River, downstream of Menard, Texas, experienced very low flows during the summer of 2015, which led to dewatering of occupied habitats as evidenced by observations of recent dead shell material of Texas pimpleback and Texas fatmucket (TPWD 2015, pp. 2-3; described in detail by Randklev
High flow events lead to increased risk of physical removal, transport, and burial (entrainment) of mussels as unstable substrates are transported downstream by floodwaters and later redeposited in locations that may not be suitable. A site in the lower Colorado River near Altair, Texas, suffered significant changes in both mussel community structure and bathymetry (measurement of water depths) during extensive flooding (and resulting high flows) in August 2017, as a result of Hurricane Harvey (Bonner
The distribution of mussel beds and their habitats is affected by large floods returning at least once during the typical life span of an individual mussel (generally from 3 to 30 years). The presence of flow refuges mediates the effects of these floods, as shear stress is relatively low in flow refuges and where sediments are relatively stable, and individual mussels “must either tolerate high-frequency disturbances or be eliminated, and can colonize areas that are infrequently disturbed between events” (Strayer 1999, pp. 468-469). Shear stress and relative substrate stability are limiting to mussel abundance and species richness (Randklev
The Central Texas mussels have historically been, and currently remain, exposed to extreme hydrological conditions, including severe drought leading to dewatering, and heavy rains leading to damaging scour events with movement of mussels and substrate (
Sediment deposition may arise from human activities, as well. Sand and gravel can be mined from rivers or from adjacent alluvial deposits, and instream gravels often require less processing and are thus more attractive from a business perspective (Kondolf 1997, p. 541). Instream mining directly affects river habitats, and can indirectly affect river habitats through channel incision, bed coarsening, and lateral channel instability (Kondolf 1997, p. 541). Excavation of pits in or near to the channel can create a nickpoint, which can contribute to erosion (and mobilization of substrate) associated with head cutting (Kondolf 1997, p. 541). Off-channel mining of floodplain pits can become involved during floods, such that the pits become hydrologically connected and thus can affect sediment dynamics in the stream (Kondolf 1997, p. 545).
Predation on freshwater mussels is a natural phenomenon. Raccoons, muskrats, snapping turtles, wading birds, and fish are known to prey upon Central Texas mussels. Under natural conditions, the level of predation occurring within Central Texas mussel populations is not likely to pose a significant risk to any given population. However, during periods of low flow, terrestrial predators and wading birds have increased access to portions of the river that are otherwise too deep under normal flow conditions. High levels of predation during drought have been observed on the Llano and San Saba Rivers. As drought and low flow are predicted to occur more often and for longer periods due to the effects of future climate change, the Hill Country tributaries (of the Colorado River) in particular are expected to experience additional predation pressure into the future, and this may become especially problematic in the Llano and San Saba Rivers. Predation is expected to be less of a problem for the lower portions of the mainstem river populations because the rivers are significantly larger than the tributary streams and Central Texas mussels are less likely to be found by predators in exposed or very shallow habitats.
Certain mussel beds within some populations, due to ease of access, are vulnerable to overcollection and vandalism. These areas, primarily on the Llano and San Saba Rivers, have well-known and well-documented mussel beds that have been sampled repeatedly over the past few years by multiple researchers and others for a variety of projects. Given the additional stressors aforementioned in this section, these populations are being put at additional risk due to over-collection and over-harvest for scientific needs.
Central Texas mussels historically colonized new areas through movement of infested host fish, as newly metamorphosed juveniles would excyst from host fish in new locations. Today, the remaining Central Texas mussel populations are significantly isolated due to habitat fragmentation by major reservoirs such that recolonization of areas previously extirpated is extremely unlikely, if not impossible, due to existing dams creating permanent barriers to host fish movement. There is currently no opportunity for interaction among any of the extant Central Texas mussel populations, as they are isolated from one another by major reservoirs.
The overall distribution of mussels is, in part, a function of host fish dispersal (Smith 1985, p. 105). There is limited potential for immigration and emigration between populations other than through the movement of infected host fish between mussel populations. Small populations are more affected by this limited immigration potential because they are susceptible to genetic drift, resulting from random loss of genetic diversity, and inbreeding
Many of the Central Texas mussels' known or assumed primary host fish species are known to be common, widespread species in the Central Texas river basins. We know that populations of mussels and their host fish have become fragmented and isolated over time following the construction of major dams and reservoirs throughout Central Texas. We do not currently have information demonstrating that the distribution of host fish is a factor currently limiting Central Texas mussels distribution. However, a recent study suggested that the currently restricted distribution of false spike, Guadalupe orb, and other related species could be related to declining abundance of their host fish, particularly those fish having small home ranges and specialized habitat affinities (Dudding
Climate change has been documented to have already taken place, and continued greenhouse gas emissions at or above current rates will cause further warming (Intergovernmental Panel on Climate Change (IPCC) 2013, pp. 11-12). Warming in Texas is expected to be greatest in the summer (Maloney
While projected changes to rainfall in Texas are small (U.S. Global Change Research Program (USGCRP) 2017, p. 217), higher temperatures caused by anthropogenic factors lead to increased soil water deficits because of higher rates of evapotranspiration. This is likely to result in increasing drought severity in future climate scenarios just as “extreme precipitation, one of the controlling factors in flood statistics, is observed to have generally increased and is projected to continue to do so across the United States in a warming atmosphere” (USGCRP 2017, p. 231). Even if precipitation and groundwater recharge remain at current levels, increased groundwater pumping and resultant aquifer shortages due to increased temperatures are nearly certain (Loaiciga
A recent review of future climate projections for Texas concludes that both droughts and floods could become more common in Central Texas and projects that years like 2011 (the warmest on record) could be commonplace by the year 2100 (Mullens and McPherson 2017, pp. 3, 6). This trend toward more frequent drought is attributed to increases in hot temperatures, and the number of days at or above 100 °F are projected to “increase in both consecutive events and the total number of days” (Mullens and McPherson 2017, pp. 14-15). Similarly, floods are projected to become more common and severe because of increases in the magnitude of extreme precipitation (Mullens and McPherson 2017, p. 20). Recent “historic” flooding of the Llano River resulted in the transport of high levels of silt and debris to Lake Travis, so much so that the City of Austin's ability to treat raw water was affected and the City issued a boil water notice and call for water conservation (City of Austin 2018c, p. 3)
In the analysis of the future condition of the Central Texas mussels, we considered climate change to be an exacerbating factor, contributing to the increase of fine sediments, changes in water quality, loss of flowing water, and predation. Due to the effects of ongoing climate change (represented by representative concentration pathway (RCP) 4.5), we expect the frequency and duration of cleansing flows to decrease, leading to the increase in fine sediments at all populations. Many populations will experience increased frequency of low flows. More extreme climate change projections (RCP 8.5 and beyond) lead to further increases in fine sediment within the populations. Similarly, as lower water levels concentrate contaminants and cause unsuitable temperature and dissolved oxygen levels, we expect water quality to decline to some degree in the future. The SSA report includes a detailed analysis of the species' responses to both RCP 4.5 and 8.5.
Since 2011, when three of the Central Texas mussel species became candidates for listing under the Endangered Species Act, many agencies, non-governmental organizations, and other interested parties have been working to develop voluntary agreements with private landowners to restore or enhance habitats for fish and wildlife in the region, including in the watersheds where Central Texas mussels occur. These agreements provide voluntary conservation including upland habitat enhancements that will, if executed properly, reduce threats to the species while improving in-stream physical habitat and water quality, as well as adjacent riparian and upland habitats. Additionally, as many as three river authorities are developing (or have already developed) conservation plans that may lead to candidate conservation agreements with assurances to benefit one or more species of candidate mussels (including the Central Texas mussels) in their basins. Because these plans and agreements are not yet fully drafted and implemented, we are not considering the conservation actions in our evaluation of the status of the Central Texas mussels; however, we will evaluate any new information on these
Some publicly and privately owned lands in the watersheds occupied by Central Texas mussels are protected with conservation easements or are otherwise managed to support populations of native fish, wildlife, and plant populations. The Natural Resources Conservation Service (NRCS), along with the Service and State and local partners, are working with private landowners to develop and implement comprehensive conservation plans to address soil, water, and wildlife resource concerns in the lower Colorado River basin through a Working Lands for Wildlife project (NRCS 2019a, entire).
The Service has been hosting annual mussel research and coordination meetings to help manage and monitor scientific collection of mussel populations and encourage collaboration among researchers and other conservation partners since 2018 (USFWS 2018, p. 1, USFWS 2019a, p. 1). Additionally, work is under way to evaluate methods of captive propagation for the Central Texas mussel species at the Service's hatchery and research facilities (San Marcos Aquatic Research Center, Inks Dam National Fish Hatchery, and Uvalde National Fish Hatchery), including efforts to collect gravid females from the wild to infest host fish (Bonner
Here we discuss the current condition of each known population, taking into account the risks to those populations that are currently occurring, as well as management actions that are currently occurring to address those risks. We consider climate change to be currently occurring, resulting in changes to the timing and amount of rainfall affecting streamflow, increased stream temperatures, and increased accumulation of fine sediments. In the SSA report, for each species and population, we developed and assigned condition categories for three population and three habitat factors that are important for viability of each species. The condition scores for each factor were then used to determine an overall condition of each population: healthy, moderately healthy, unhealthy, or functionally extirpated. These overall conditions translate to our presumed probability of persistence of each population, with healthy populations having the highest probability of persistence over 20 years (greater than 90 percent), moderately healthy populations having a probability of persistence that falls between 60 and 90 percent, and unhealthy populations having the lowest probability of persistence (between 10 and 60 percent). Functionally extirpated populations are not expected to persist over 20 years or are already extirpated.
Overall, there is one known remaining population of Guadalupe fatmucket, in the Guadalupe River. Historically, Guadalupe fatmucket likely occurred through the Guadalupe River basin, but it currently only occurs in the upper Guadalupe River in an unhealthy population due to low abundance and little evidence of reproduction and recruitment. Very few individuals have been found in recent years, and the upper Guadalupe River in this reach already experiences very low water levels. These low water events are expected to continue into the future, and the population will be unlikely to rebound from any degraded habitat conditions.
Overall, there are five known remaining populations of Texas fatmucket, all limited to the headwater reaches of the Colorado River and its tributaries (see figure 2, above). Historically, most Texas fatmucket populations were likely connected by fish migration throughout the Colorado River basin, but due to impoundments and low water conditions in the Colorado River and tributaries they are currently isolated from one another, and repopulation of extirpated locations is unlikely to occur without human assistance. Two of the current populations are moderately healthy, two are unhealthy, and one is functionally extirpated.
There are seven remaining populations of Texas fawnsfoot, in the Trinity, Brazos, and Colorado River basins. Historically, Texas fawnsfoot occurred throughout each basin with populations connected by fish migration within each basin, but due to impoundments and low water conditions, they are currently isolated from one another, and repopulation of extirpated locations is unlikely to occur without human assistance. Four Texas fawnsfoot populations are moderately healthy, and three are unhealthy.
There are two remaining populations of the Guadalupe orb, all in the Guadalupe River basin. Historically, Guadalupe orb likely occurred throughout the basin with populations connected by fish migration, but due to impoundments and low water conditions, they are currently isolated from one another, and repopulation of extirpated locations is unlikely to occur without human assistance. Both of the Guadalupe orb populations are moderately healthy.
There are five remaining Texas pimpleback populations, all in the Colorado River basin. Historically, Texas pimpleback likely occurred throughout the basin with populations connected by fish migration, but due to impoundments and low water conditions, they are currently fragmented and isolated from one another and repopulation of extirpated locations is unlikely to occur without human assistance. Three of the remaining Texas pimpleback populations are unhealthy and are not reproducing, and two of the populations are moderately healthy.
Overall, there are four known remaining populations of false spike (see figure 6, above), comprising less than 10 percent of the species' known historical range. Historically, most false spike populations were likely connected by fish migration throughout each of the Brazos, Colorado, and Guadalupe river basins, but due to impoundments they are currently fragmented and isolated from one another and repopulation of extirpated locations is unlikely to occur without human assistance. Based on our analysis as described in the SSA Report, one population is moderately healthy, and three are unhealthy.
We note that, by using the SSA framework to guide our analysis of the scientific information documented in
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.
After evaluating threats to the six Central Texas mussel species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we found that all six species of Central Texas mussels have declined significantly in overall distribution and abundance. At present, most of the known populations exist in very low abundances and show limited evidence of recruitment. Furthermore, existing available habitats are reduced in quality and quantity, relative to historical conditions. Our analysis revealed five primary threats that caused these declines and pose a meaningful risk to the viability of the species. These threats are primarily related to habitat changes (Factor A from the Act): The accumulation of fine sediments, altered hydrology, and impairment of water quality, all of which are exacerbated by the effects of climate change. Predation and collection (Factor C) are also affecting those populations already experiencing low stream flow, and barriers to fish movement (Factor E) limit dispersal and prevent recolonization after stochastic events.
Because of historic and ongoing habitat destruction and fragmentation, remaining Central Texas mussel populations are now fragmented and isolated from one another, interrupting the once functional metapopulation dynamic that historically made mussel populations robust and very resilient to change. The existing fragmented and isolated mussel populations are largely in a state of chronic degradation due to a number of historical and ongoing stressors affecting flows, water quality, sedimentation, and substrate quality. Given the high risk of catastrophic events including droughts and floods, both of which are exacerbated by climate change, many Central Texas mussel populations are at a high risk of extirpation.
Beginning around the turn of the twentieth century until 1970, over 100 major dams had been constructed, creating reservoirs across Texas, including several reservoirs in the Brazos and Trinity basins, the chain of Highland Lakes on the Lower Colorado River, the Guadalupe Valley Hydroelectric Project, and the Canyon Reservoir on the Guadalupe River (Dowell 1964, pp. 3-8). The inundation and subsequent altered hydrology and sediment dynamics associated with operation of these flood-control, hydropower, and municipal water supply reservoirs have resulted in irreversible changes to the natural flow regime of these rivers. These changes have re-shaped and fragmented these aquatic ecosystems and fish and invertebrate communities, including populations of the six species of Central Texas mussels, which all depend on natural river flows.
Water quality has benefited from dramatically improved wastewater treatment technology in recent years, such that fish populations have rebounded but not completely recovered (Perkin and Bonner 2016, p. 97). However, water quality degradation continues to affect mussels and their habitats, especially as low flow conditions and excessive sedimentation interact to diminish instream habitats, and substrate-mobilizing and mussel-scouring flood events have become more extreme and perhaps more frequent.
Additionally, while host fish may still be adequately represented in contemporary fish assemblages, access to fish hosts can be reduced during critical reproductive times by barriers such as the many low-water crossings and low-head dams that now exist and fragment the landscape. Diminished access to host fish leads to reduced reproductive success just as barriers to fish passage impede the movement of fish, and thus compromise the ability of mussels to disperse and colonize new habitats following a disturbance (Schwalb
Populations of each of the six Central Texas mussels face risks from declining water quantity in both large and small river segments. Low flows lead to dewatering of habitats and desiccation of individuals, elevated water temperatures, and other quality degradations, as well as increased exposure to predation. Future higher air temperatures, higher rates of evaporation and transpiration, and changing precipitation patterns are expected in central Texas (Jiang and Yang 2012, pp. 234-239, 242). Future climate changes are expected to lead to human responses, such as increased groundwater pumping and surface water diversions, associated with increasing demands for and decreasing availability of freshwater resources in the State (reviewed in Banner
These threats, alone or in combination, are expected to cause the extirpation of additional mussel populations, further reducing the overall redundancy and representation of each of the six species of Central Texas mussels. Historically, each species, with a large range of interconnected populations (
The Guadalupe fatmucket has only one remaining population, and very few individuals have been detected and reported in recent years. The upper Guadalupe River in this reach already experiences very low water levels, putting this population at high risk of extirpation. The species has very low viability, with a single population at high risk of extirpation, and no additional representation or redundancy. Our analysis of the species' current and future conditions, as well as the conservation efforts discussed above, show that the Guadalupe fatmucket is in danger of extinction throughout all of its range due to the severity and immediacy of threats currently impacting the species.
Of the five remaining fragmented and isolated populations of Texas fatmucket, two are small in abundance and occupied stream length and have low to no resiliency (unhealthy), and one population is functionally extirpated. The other two current populations are moderately healthy. The upper/middle San Saba and Llano River populations are larger, with increased abundance and occupied stream length, but these populations are vulnerable to stream drying and overcollection. These very low flow events are expected to continue into the future, and both of these populations of Texas fatmucket are at risk of extirpation. Even if the locations of Texas fatmucket do not become dry, water quality degradation and increased sedimentation associated with low flows is expected. Additionally, the Llano River population does not appear to be successfully reproducing, further increasing the species' risk of extirpation at this location. The Texas fatmucket has no populations that are currently considered healthy. Loss of populations at high risk of extirpation leads to low levels of redundancy and representation. Overall, these low levels of resiliency, redundancy, and representation result in the Texas fatmucket having low viability, and the species currently faces a high risk of extinction. Our analysis of the species' current and future conditions shows that the Texas fatmucket is in danger of extinction throughout all of its range due to the severity and immediacy of threats currently impacting the species.
Seven populations of Texas fawnsfoot remain. Four populations are moderately healthy, and three are unhealthy or are functionally extirpated. Currently, two of the moderately healthy populations are not subject to flow declines similar to the remaining populations of this species, due to increased flow returns in the Trinity River from wastewater treatment facilities and a lack of impoundments on the mainstem of the lower Brazos River. In the future, however, as extreme flow events become more frequent as rainfall patterns change, and increased urbanization results in reduced groundwater levels, we expect even these populations to be at an increased risk of extirpation. Within 25 to 50 years, even under the best conditions and with additional conservation efforts undertaken, given the ongoing effects of climate change and human activities on altered hydrology and habitat degradation, we expect only one population to be in healthy condition, one population to remain in moderately healthy condition, four populations to be in unhealthy condition, and one population to become functionally extirpated. Given the likelihood of increased climate and anthropogenic effects in the foreseeable future, as many as five populations are expected to become functionally extirpated, leaving no more than three unhealthy populations remaining after 50 years. In the future, we anticipate that the Texas fawnsfoot will have reduced viability, with no highly resilient populations and limited representation and redundancy. Thus, after assessing the best available information, we determine that the Texas fawnsfoot is not currently in danger of extinction but is likely to become in danger of extinction within the foreseeable future throughout all of its range.
Only two fragmented and isolated populations of Guadalupe orb remain, and one of these populations is functionally extirpated. The San Marcos/Lower Guadalupe River population is more resilient but is at risk of catastrophic events, such as hurricane flooding, that can scour and reduce the abundance and distribution of this population. The Guadalupe orb has no populations that are considered healthy. Loss of populations at high risk of extirpation leads to low levels of redundancy and representation, and results in overall low viability. The Guadalupe orb currently faces a high risk of extinction. Our analysis of the species' current and future conditions, as well as the conservation efforts discussed above, show that the Guadalupe orb is in danger of extinction throughout all of its range due to the severity and immediacy of threats currently impacting the species.
Of the five remaining Texas pimpleback populations, three are unhealthy and are not reproducing, and two are moderately healthy. The populations that are not reproducing are considered functionally extirpated, and the two moderately healthy populations are expected to continue to decline. The population in the middle Colorado and lower San Saba Rivers has very little evidence of reproduction and is therefore likely to decline due to a lack of young individuals joining the population as the population ages. The lower Colorado River population has very recently experienced an extreme high flow event (
Of the four remaining fragmented and isolated populations of false spike, three are small in abundance and occupied stream length, having low to no resiliency. The remaining lower Guadalupe River population is larger, with increased abundance and occupied stream length; however, the risk of extreme high flow events in this reach is high. Therefore, the false spike has no populations that are currently considered healthy (
Our analysis of the species' current and future conditions, as well as the conservation efforts discussed above, show that the Guadalupe fatmucket, Texas fatmucket, Guadalupe orb, Texas pimpleback, and false spike are in danger of extinction throughout all their ranges due to the severity and immediacy of threats currently impacting their populations. The risk of extinction is high because the remaining fragmented populations have a high risk of extirpation, are isolated, and have limited potential for recolonization. We find that a threatened species status is not appropriate for Guadalupe fatmucket, Texas fatmucket, Guadalupe orb, Texas pimpleback, and false spike because of their currently contracted ranges, because all populations are fragmented and isolated from one another, because the threats are occurring across the entire range of these species, and because the threats are ongoing currently and are expected to continue or worsen into the future. Because these species are already in danger of extinction throughout their ranges, a threatened status is not appropriate.
After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we find that that Texas fawnsfoot populations will continue to decline over the next 25 years so that this species is likely to become in danger of extinction throughout all or a significant portion of its range within the foreseeable future due to increased frequency of drought and extremely high flow events, decreased water quality, and decreased substrate suitability. We considered whether the Texas fawnsfoot is presently in danger of extinction and determined that endangered status is not appropriate. The current conditions as assessed in the SSA report show two of the populations in two of the representative units are not currently subject to declining flows or extreme flow events. While threats are currently acting on the species and many of those threats are expected to continue into the future, we did not find that the species is currently in danger of extinction throughout all of its range. According to our assessment of plausible future scenarios in the SSA report, the species is likely to become an endangered species in the foreseeable future of 25 years throughout all of its range. Twenty-five years encompasses about 5 generations of the Texas fawnsfoot; additionally, models of human demand for water (Texas Water Development Board 2017, p. 30) and climate change (
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the Guadalupe fatmucket, Texas fatmucket, Guadalupe orb, Texas pimpleback, and false spike are in danger of extinction throughout all of their ranges, and accordingly did not undertake an analysis of whether there are any significant portions of these species' ranges. Because the Guadalupe fatmucket, Texas fatmucket, Guadalupe orb, Texas pimpleback, and false spike warrant listing as endangered throughout all of their ranges, our determination is consistent with the decision in
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. The court in
Following the court's holding in
We considered whether any of the threats acting on the species are geographically concentrated in any portion of the range at a biologically meaningful scale. We examined the following threats throughout the range of the species: The accumulation of fine sediments, altered hydrology, and impairment of water quality (Factor A); predation and collection (Factor C); and barriers to fish movement (Factor E).
We identified a portion of the range of Texas fawnsfoot, the upper Brazos
We then proceeded to the significance question, asking whether there is substantial information indicating that this portion of the range (
We evaluated the available information about the portion of the range of Texas fawnsfoot that occupies the upper Brazos River in this context, assessing its biological significance in terms of these three habitat criteria, and determined the information did not substantially indicate it may be significant. Texas fawnsfoot in these populations exhibit similar habitat and host fish use to Texas fawnsfoot in the remainder of its range; thus, there is no unique observable environmental usage or behavioral characteristics attributable to just this area's populations. The Upper Brazos River is not essential to any specific life-history function of the Texas fawnsfoot that is not found elsewhere in the range. Further, the habitat in the Upper Brazos River does not contain higher quality or higher value than the remainder of the species' range. The Upper Brazos River populations have a small number of individuals compared to most of the other populations throughout the range of Texas fawnsfoot (see Table 4, above). The Clear Fork Brazos River population may already be extirpated, and the Upper Brazos River population had 23 individuals found in 2017. These populations do not interact with other populations of the species.
Overall, we found no substantial information that would indicate the Upper Brazos River may be significant. While this area provides some contribution to the species' overall ability to withstand catastrophic or stochastic events (redundancy and resiliency, respectively), the species has a larger population that occupies a larger area downstream in the Brazos River. The best scientific and commercial information available indicates that the Upper Brazos River population's contribution is very limited in scope due to the small population sizes and isolation from other populations. Therefore, because we could not answer both the status and significance questions in the affirmative, we conclude that the Upper Brazos River portion of the range does not warrant further consideration as a significant portion of the range.
We did not identify any portions of the Texas fawnsfoot's range where: (1) The portion is significant; and, (2) the species is in danger of extinction in that portion. Therefore, we conclude that the Texas fawnsfoot is likely to become in danger of extinction within the foreseeable future throughout all of its range. This is consistent with the courts' holdings in
Our review of the best available scientific and commercial information indicates that the Guadalupe fatmucket, Texas fatmucket, Guadalupe orb, Texas pimpleback, and false spike meet the definition of endangered species. Therefore, we propose to list the Guadalupe fatmucket, Texas fatmucket, Guadalupe orb, Texas pimpleback, and false spike as endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.
Our review of the best available scientific and commercial information indicates that the Texas fawnsfoot meets the definition of a threatened species. Therefore, we propose to list the Texas fawnsfoot as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse species' decline by addressing the threats to survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
If these species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Texas would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Central Texas mussels. Information on our grant programs that are available to aid species recovery can be found at:
Although the Central Texas mussels are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for these species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the National Park Service.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the
Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:
(1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and,
(2) Normal residential landscape activities.
Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:
(1) Unauthorized handling or collecting of the species;
(2) Modification of the channel or water flow of any stream in which the Central Texas mussels are known to occur;
(3) Livestock grazing that results in direct or indirect destruction of stream habitat; and
(4) Discharge of chemicals or fill material into any waters in which the Central Texas mussels are known to occur.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Austin Ecological Services Field Office (see
Section 4(d) of the Act contains two sentences. The first sentence states that the “Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation” of species listed as threatened. The U.S. Supreme Court has noted that statutory language like “necessary and advisable” demonstrates a large degree of deference to the agency (see
The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition (see
Exercising its authority under section 4(d), the Service has developed a proposed rule that is designed to address the Texas fawnsfoot's specific threats and conservation needs. Although the statute does not require the Service to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Texas fawnsfoot. As discussed in the Summary of Biological Status and Threats section, the Service has concluded that the Texas fawnsfoot is likely to become in danger of extinction within the foreseeable future primarily due to habitat changes such as the accumulation of fine sediments, altered hydrology, and impairment of water quality, predation and collection, and barriers to fish movement. The provisions of this proposed 4(d) rule would promote conservation of the Texas fawnsfoot by encouraging riparian landscape conservation while also meeting the conservation needs of Texas fawnsfoot. By streamlining those projects that follow best management practices and improve instream habitat (such as streambank stabilization, instream channel restoration, and upland restoration that improves instream habitat), conservation is more likely to occur for Texas fawnsfoot, improving the condition of populations in those reaches. The provisions of this proposed rule are one of many tools that the Service would use to promote the conservation of the Texas fawnsfoot. This proposed 4(d) rule would apply only if and when the Service makes final the listing of the Texas fawnsfoot as a threatened species.
This proposed 4(d) rule would provide for the conservation of the Texas fawnsfoot by prohibiting the following activities, except as otherwise authorized or permitted: Take, possession, and import/export of unlawfully taken specimens.
As discussed in the Summary of Biological Status and Threats (above), habitat loss, predation and collection, and barriers to fish movement are affecting the status of the Texas fawnsfoot. A range of activities have the potential to impact the Texas fawnsfoot, including: Instream construction, water withdrawals, flow releases from upstream dams, riparian vegetation removal, improper handling, and wastewater treatment facility outflows. Regulating these activities will help preserve the species' remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors.
Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating incidental and intentional take will help preserve the species' remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors.
We have identified some exceptions to the prohibition on incidental and intentional take. Those exceptions include the following activities:
(1) Channel restoration projects that create natural, physically stable (streambanks and substrate remaining relatively unchanging over time), ecologically functioning streams or stream and wetland systems (containing an assemblage of fish, mussels, other invertebrates, and plants) that are reconnected with their groundwater aquifers. These projects can be accomplished using a variety of methods, but the desired outcome is a natural channel with low shear stress (force of water moving against the channel); bank heights that enable reconnection to the floodplain; a reconnection of surface and groundwater systems, resulting in perennial flows in the channel; riffles and pools composed of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacent riparian areas; and inclusion of riparian wetlands and woodland buffers. This exception to the proposed 4(d) rule for incidental take would promote conservation of Texas fawnsfoot by creating stable stream channels that are less likely to scour during high flow events, thereby increasing population resiliency.
(2) Bioengineering methods such as streambank stabilization using live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live fascines (live branch cuttings, usually willows, bound together into long, cigar-shaped bundles), or brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). These methods would not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion
(3) Soil and water conservation practices and riparian and adjacent upland habitat management activities that restore instream habitats for the species, restore adjacent riparian habitats that enhance stream habitats for the species, stabilize degraded and eroding stream banks to limit sedimentation and scour of the species' habitats, and restore or enhance nearby upland habitats to limit sedimentation of the species' habitats and comply with conservation practice standards and specifications and technical guidelines developed by the Natural Resources Conservation Service (NRCS) and available in the Field Office Technical Guide (FOTG). Soil and water conservation practices and aquatic species habitat restoration projects associated with NRCS conservation plans are designed to improve water quality and enhance fish and aquatic species habitats. This exception to the proposed 4(d) rule for incidental take would promote conservation of Texas fawnsfoot by creating stable stream channels and reducing sediment inputs to the stream, thereby increasing population resiliency.
(4) Presence or abundance surveys for Texas fawnfoot conducted by individuals who successfully complete and show proficiency by passing the end-of-course test with a score equal to or greater than 90 percent, with 100 percent accuracy in identification of mussel species listed under the Endangered Species Act, in an approved freshwater mussel identification and sampling course (specific to the species and basins in which the Texas fawnsfoot is known to occur), such as that administered by the Service, State wildlife agency, or qualified university experts. Those individuals exercising this exemption should provide reports to the Service annually on number, specific location (
We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: Scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
The Service recognizes the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Services in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Services shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, will be able to conduct activities designed to conserve Texas fawnsfoot that may result in otherwise prohibited take without additional authorization.
Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the Texas fawnsfoot. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above).
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation also does not allow the government or public to access private lands, nor does designation require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more-complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. The implementing regulations at 50 CFR 424.12(b)(2) further delineate unoccupied critical habitat by setting out three specific parameters: (1) When designating critical habitat, the Secretary will first evaluate areas occupied by the species; (2) the Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species; and (3) for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.
As the regulatory definition of “habitat” reflects (50 CFR 424.02), habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of these species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species to the maximum extent prudent and determinable. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and identification of critical habitat can be
(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.
As discussed in the proposed listing rule, above, while collection at certain locations has been identified as a threat to certain populations of Texas pimpleback, Texas fatmucket, and false spike in the Llano River, the location of these populations is well known and the identification and mapping of critical habitat is not expected to increase the degree of this threat. In our SSA report and proposed listing rule for the Central Texas mussels, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the Central Texas mussels and that those threats in some way can be addressed by section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the Central Texas mussels.
Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Central Texas mussels is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”
When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where these species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Central Texas mussels.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkali soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.
We derive the specific physical or biological features (PBFs) essential for Central Texas mussels from studies of these species' habitat, ecology, and life history. The life histories of the six Central Texas mussel species are very similar—mussels need flowing water, suitable substrate, suitable water quality, flow refuges, and appropriate host fish—and so we will discuss their common habitat needs and then describe species-specific needs thereafter.
Most freshwater mussels, including the Central Texas mussels, are found in aggregations, called mussel beds, that vary in size from about 50 to greater than 5,000 square meters (m
All six species of Central Texas mussels need flowing water for survival. They are not found in lakes, reservoirs, or in pools without flow, or in areas that are regularly dewatered. River reaches with continuous flow support all life stages of Central Texas mussels, while those with little or no flow do not. Flow rates needed by each species will vary depending on the species and the river size, location, and substrate type.
Additionally, each species of Central Texas mussel has specific substrate needs, including gravel/cobble (Guadalupe orb, Texas pimpleback, and false spike), gravel/sand/silt (Texas fawnsfoot), and bedrock crevices/vegetated runs (Guadalupe fatmucket and Texas fatmucket). Except for habitats for Texas fawnsfoot, these locations must be relatively free of fine sediments such that the mussels are not smothered.
Freshwater mussels, as a group, are sensitive to changes in water quality parameters such as dissolved oxygen, salinity, ammonia, and pollutants. Habitats with appropriate levels of these parameters are considered suitable, while those habitats with levels outside of the appropriate ranges are considered less suitable. We have used information for these six Central Texas mussel species, where available, and data from other species when species-specific information is not available. Juvenile freshwater mussels are particularly susceptible to low dissolved oxygen levels. Juveniles will reduce feeding behavior when dissolved oxygen is between 2-4 milligrams per liter (mg/L), and mortality has been shown to occur at dissolved oxygen levels below 1.3 mg/L. Increased salinity levels may also be stressful to freshwater mussels, and additionally, Central Texas mussels show signs of stress at salinity levels of 2 ppt or higher (Bonner
The release of pollutants into streams from point and nonpoint sources have immediate impacts on water quality conditions and may make environments unsuitable for habitation by mussels. Early life stages of freshwater mussels are some of the most sensitive organisms of all species to ammonia and copper (Naimo 1995, pp. 351-352; Augsperger
Finally, water temperature plays a critical role in the life history of freshwater mussels. High water temperatures can cause valve closure, reduced reproductive output, and death. The Central Texas mussels differ in their optimal temperature ranges, with some species much more tolerant of high temperatures than others. Laboratory studies investigating the effects of thermal stress on glochidia and adults has indicated thermal stress may occur at 29 °C (84.2) °F) (Bonner
Based on the above information, we determine that stream reaches with the following water quality parameters are suitable for the Guadalupe fatmucket, Texas fatmucket, Texas fawnsfoot, Guadalupe orb, Texas pimpleback, and false spike:
• Low salinity (less than 2 ppt);
• Low total ammonia (less than 0.77 mg/L total ammonia nitrogen);
• Low levels of contaminants;
• Dissolved oxygen levels greater than 2 mg/L;
• Water temperatures below 29 °C (84.2 °F).
As discussed above, freshwater mussel larvae are parasites that must attach to a host fish to develop into juvenile mussels. The Central Texas mussels use a variety of host fish, many of which are widely distributed throughout their ranges. The presence of these fish species, either singly or in combination, supports the life-history needs of the Central Texas mussels:
•
•
•
•
In summary, we derive the specific PBFs essential to the conservation of Central Texas mussels from studies of these species' habitat, ecology, and life history as described above. Additional information can be found in the SSA report available on
(1) Suitable substrates and connected instream habitats, characterized by geomorphically stable stream channels and banks (
(2) Adequate flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain benthic habitats where the species are found and to maintain connectivity of streams with the floodplain, allowing the exchange of nutrients and sediment for maintenance of the mussels' and fish hosts' habitat, food availability, spawning habitat for native fishes, and the ability for newly transformed juveniles to settle and become established in their habitats.
(3) Water and sediment quality (including, but not limited to, dissolved oxygen, conductivity, hardness, turbidity, temperature, pH, ammonia, heavy metals, and chemical constituents) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages.
(4) The presence and abundance of fish hosts necessary for recruitment of the Central Texas mussels.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the Central Texas mussels may require special management considerations or protections to reduce the following threats: Increased fine sediment, changes in water quality impairment, altered hydrology from both inundation and flow loss/scour, predation and collection, and barriers to fish movement.
Management activities that could ameliorate these threats include, but are
In summary, we find that the occupied areas we are proposing to designate as critical habitat contain the PBFs that are essential to the conservation of the species and that may require special management considerations or protection. Special management considerations or protection may be required of the Federal action agency to eliminate, or to reduce to negligible levels, the threats affecting the PBFs of each unit.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat.
We are proposing to designate critical habitat in areas within the geographical area that was occupied by the species at the time of listing. We also are proposing to designate specific areas outside the geographical area occupied by the species at the time of listing because we have determined that a designation limited to occupied areas would be inadequate to ensure the conservation of the species. The current distributions of all six of the Central Texas mussels are much reduced from their historical distributions. We anticipate that recovery will require continued protection of existing populations and habitat, as well as ensuring that there are adequate numbers of mussels in stable populations that occur over a wide geographic area. This strategy will help to ensure that catastrophic events, such as the effects of hurricanes (which can lead to flooding that causes excessive sedimentation, nutrients, and debris to disrupt stream ecology, etc.) and drought, cannot simultaneously affect all known populations. Rangewide recovery considerations, such as maintaining existing genetic diversity and striving for representation of all major portions of the species' current ranges, were considered in formulating this proposed critical habitat. The unoccupied areas included in this designation all contain at least one PBF, fall within the regulatory definition of “habitat” (50 CFR 424.02), and are reasonably certain to contribute to the conservation of the species, as discussed in the below unit descriptions.
Sources of data for this proposed critical habitat include multiple databases maintained by universities and State agencies, scientific and agency reports, and numerous survey reports on streams throughout the species' ranges (see SSA report).
The proposed critical habitat designations do not include all streams known to have been occupied by the species historically; instead, they focus on streams occupied at the time of listing that have retained the necessary PBFs that will allow for the maintenance and expansion of existing populations. A stream reach may not have all of the PBFs to be included as proposed critical habitat; in such reaches, our goal is to recover the species by restoring the missing PBFs. We defined “occupied” units as stream channels with observations of one or more live individuals. Specific habitat areas were delineated based on reports of live individuals and recently dead shells. We include “recent dead shell material” to delineate the boundaries of a unit because recently dead shell material at a site indicates the species is present in that area. Recently dead shells have tissue remaining on the shells or have retained a shiny nacre, indicating the animal died within days or weeks of finding the shell. It is highly unlikely that a dead individual represents the last remaining individual of the population, and recently dead shells are an accepted indicator of species' presence (
For occupied areas proposed as critical habitat, we delineated critical habitat unit boundaries using the following criterion: Evaluate habitat suitability of stream segments within the geographic area occupied at the time of listing, and retain those segments that contain some or all of the PBFs to support life-history functions essential for conservation of the species.
As a final step, we evaluated those occupied stream segments retained through the above analysis and refined the starting and ending points by evaluating the presence or absence of appropriate PBFs. We selected upstream and downstream cutoff points to reference existing easily recognizable geopolitical features including confluences, highway crossings, and county lines. Using these features as end points allows the public to clearly understand the boundaries of critical habitat. Unless otherwise specified, any stream beds located directly beneath bridge crossings or other landmark features used to describe critical habitat spatially, such as stream confluences, are considered to be wholly included within the critical habitat unit. Critical habitat stream segments were then mapped using ArcMap version 10 (ESRI, Inc.), a Geographic Information Systems program.
We consider the following streams to be occupied by the Guadalupe fatmucket at the time of proposed listing: Guadalupe River, North Fork Guadalupe River, and Johnson Creek (see
We consider the following streams to be occupied by the Texas fatmucket at the time of proposed listing: Bluff Creek, Elm Creek, San Saba River, Cherokee Creek, North Llano River, South Llano River, Llano River, James River, Threadgill Creek, Beaver Creek,
We consider the following streams to be occupied by the Texas fawnsfoot at the time of proposed listing: Clear Fork of the Brazos River, Upper Brazos River, Lower Brazos River, Navasota River, Little River, Lower San Saba River, Upper Colorado River, Lower Colorado River, East Fork of the Trinity River, and Middle Trinity River (see
We consider the following streams to be occupied by the Guadalupe orb at the time of proposed listing: Upper Guadalupe River, South Fork Guadalupe River, Lower Guadalupe River, and San Marcos River (see
We consider the following streams to be occupied by the Texas pimpleback at the time of proposed listing: Concho River, Upper Colorado River, Lower San Saba River, Upper San Saba River, Llano River, and Lower Colorado River (see
We consider the following streams to be occupied by false spike at the time of proposed listing: Little River, San Gabriel River, Brushy Creek, San Saba River, Llano River, San Marcos River, and Guadalupe River (see
We are not proposing to designate any areas outside the geographical area currently occupied by the false spike, Guadalupe orb, and Guadalupe fatmucket because we did not find any unoccupied areas that contained the necessary PBFs and were essential for the conservation of the species. However, each species needs the establishment and protection of additional resilient populations across their historical ranges to reduce their risk of extinction. While the species need these areas, we do not currently have adequate information to identify where these populations could be located at this time.
We have determined that a designation limited to the occupied units would be inadequate to ensure the conservation of the Texas fatmucket, Texas fawnsfoot, and Texas pimpleback. Of the five remaining fragmented and isolated populations of Texas fatmucket, two are small in abundance and occupied stream length and have low to no resiliency (
In the SSA report, we defined 50 miles (80 km) as a stream length long enough to sustain a highly resilient population of the Central Texas mussels because a single event is unlikely to affect the entire population, and the affected section may be repopulated by mussel beds up- or downstream. Where available, we identified areas outside the geographical area currently occupied by Texas fatmucket, Texas pimpleback, and Texas fawnsfoot as critical habitat in order to increase the occupied stream length of existing small populations. Not all small (less than 50 miles) occupied stream reaches may have adjacent unoccupied reaches that are reasonably certain to contribute to the conservation of the species, and while these smaller reaches will inherently have a higher risk of extirpation, these smaller areas contribute to the conservation of the species through maintaining redundancy and representation. Special management within smaller occupied units can reduce the risk of extirpation.
We are proposing to designate some areas outside the geographical area currently occupied by Texas fatmucket, Texas pimpleback, and Texas fawnsfoot we found to be essential for the conservation of each species. The proposed unoccupied subunits are essential to the conservation of the species because each provides for the growth and expansion of the species within portions of their historical ranges. The longer the reach occupied by a species, the more likely it is that the population can withstand stochastic events such as extreme flooding, dewatering, or water contamination. Therefore, the unoccupied subunits are each essential for the conservation of the species. These proposed areas are located immediately adjacent to currently occupied stream reaches, include one or more of the necessary PBFs, and would allow for expansion of existing populations necessary to improve population resiliency, extend physiographic representation, and reduce the risk of extinction for the species. The establishment of additional moderately healthy to healthy populations across the range of these species would sufficiently reduce their risk of extinction. Improving the resiliency of populations in the currently occupied streams, and into identified unoccupied areas, will increase species viability to the point that the protections of the Act are no longer necessary. The unoccupied reaches we are proposing for critical habitat designation are Elm Creek and Onion Creek for the Texas fatmucket; the Clear Fork Brazos River for the Texas fawnsfoot; and the Llano River and Concho River for the Texas pimpleback.
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the Central Texas mussels. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation under the Act with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
We propose to designate as critical habitat lands that we have determined are occupied at the time of listing (
The proposed critical habitat designations are defined by the map or
In total, we are proposing to designate approximately 1,944 river mi (3,129 river km), accounting for overlapping units, in 27 units (total of 50 subunits; Table 8) as critical habitat for one or more Central Texas mussel species: The false spike, Texas fatmucket, Guadalupe fatmucket, Texas pimpleback, Guadalupe orb, and Texas fawnsfoot. All but five of the subunits are currently occupied by one or more of the species, and each of the 50 subunits contains the physical and biological features essential to the conservation of each species. These proposed critical habitat areas, described below, constitute our current best assessment of areas that meet the definition of critical habitat for the six Central Texas mussel species. Each species historically occurred in a different subset of watersheds in Central Texas; therefore, there are large differences in the amount of critical habitat proposed for each species. For example, the Guadalupe fatmucket only occurred in the upper reaches of the Guadalupe River basin. As such, we have not proposed to designate areas outside of the very small historical range. In contrast, Texas fawnsfoot was historically widespread in three basins; therefore, to maintain the adaptive capacity of this species, we are proposing to designate a larger area for Texas fawnsfoot. Texas surface water is owned by the State, as are the beds of navigable streams; thus the actual critical habitat units (occupied waters and streambeds up to the ordinary high-water mark) are owned by the State of Texas (Texas Water Code Section 11.021, 11.0235). Adjacent riparian areas are in most cases, privately owned, and are what is reported in the discussion that follows. In many cases, activities on adjacent private land would not trigger section 7 consultation under the Act if those activities do not affect instream habitat.
We are proposing to designate approximately 54.1 river mi (87.1 river km) in a single unit (three subunits) as critical habitat for Guadalupe fatmucket. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for Guadalupe fatmucket. The unit we propose as critical habitat is GUFM-1: Guadalupe River Unit. Table 9 shows the occupancy of the unit, the riparian ownership, and approximate length of the proposed designated areas for the Texas fatmucket. We present a brief description of the proposed unit, and reasons why it meets the definition of critical habitat for Guadalupe fatmucket, below.
We are proposing to designate approximately 436.0 river mi (701.7 km) in 6 units (15 subunits) as critical habitat for Texas fatmucket. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for Texas fatmucket. The six areas we propose as critical habitat are: TXFM-1: Elm Creek Unit; TXFM-2: San Saba River Unit; TXFM-3: Cherokee Creek Unit; TXFM-4: Llano River Unit; TXFM-5: Pedernales River Unit; and TXFM-6: Onion Creek Unit. Table 10 shows the occupancy of the units, the riparian ownership, and approximate length of the proposed designated areas for the Texas fatmucket. We present brief descriptions of all proposed units, and reasons why they meet the definition of critical habitat for Texas fatmucket, below.
The Upper Elm Creek subunit is in a rural setting, is influenced by drought, low flows, and elevated chlorides, and is being affected by ongoing agricultural activities. Although it is considered unoccupied, portions of this subunit contain some or all of the physical or biological features essential for the conservation of the species. As previously mentioned, flow rates in this subunit are typically not within the range required by the Texas fatmucket (PBF 1). This subunit is often characterized by small, isolated pools separated by short riffles over bedrock during low flow and when dam releases are minimal. During the last decade, lower Elm Creek has experienced both the lowest and highest flow rates on record (see SSA report for more information). This subunit will require management actions that address flow rate and associated stream habitat quality.
Suitable stream habitat and hydrological connectivity (PBF 2) are unsupported throughout the entirety of this subunit. Specifically, low flows during times of drought punctuated by high flows are either scouring the stream habitat, or depositing stream sediments downstream. Because mussels are sedentary organisms, transportation of individuals during flooding events is often lethal.
The Texas fatmucket uses predatory fish (
This subunit is not included in Texas Commission on Environmental Quality classified stream segments; therefore, we have no specific water quality information. During times of normal flow this subunit likely supports healthy water quality parameters (PBF 4) for Texas fatmucket, but water quality is likely compromised during low flows, when water temperatures rise and dissolved oxygen drops. The Upper Elm Creek subunit will require additional management practices to ensure sufficient water quality standards are being met and maintained for Texas fatmucket.
Because this reach of Elm Creek periodically contains the flowing water conditions and host fish species used by Texas fatmucket, it qualifies as habitat according to our regulatory definition (50 CFR 424.02).
If the Texas fatmucket can be reestablished in this reach, it will expand the occupied reach length in Elm Creek to a length that will be more resilient to the stressors that the species is facing. The longer the reach occupied by a species, the more likely it is that the population can withstand stochastic events such as extreme flooding, dewatering, or water contamination. In the SSA report, we identified 50 miles (80.5 km) as a reach long enough for a population to be able to withstand stochastic events, and the addition of this 10.9-mile reach, as well as the adjacent tributary of Bluff Creek, would expand the existing Texas fatmucket population downstream in Lower Elm Creek and in Bluff Creek closer to 50 miles. The addition of multiple tributaries increases the value of the overall critical habitat unit, providing protection for the population should a stochastic event occur in one tributary. If Texas fatmucket were to become reestablished throughout this unit, it would likely be a moderately to highly resilient population due to longer stream length and would increase the species' future redundancy. This unit is
We are reasonably certain that this unit will contribute to the conservation of the species, because the need for conservation efforts is recognized and is being discussed by our conservation partners, and methods for restoring and reintroducing the species into unoccupied habitat are being developed. The Texas fatmucket is listed as threatened by the State of Texas, and the Texas Comptroller of Public Accounts has funded research, surveys, propagation, and reintroduction studies for this species. State and Federal partners have shown interest in propagation and reintroduction efforts for the Texas fatmucket. As previously mentioned, efforts are underway regarding a captive propagation program for Texas fatmucket at the San Marcos Aquatic Resource Center and Inks Dam National Fish Hatchery. The State of Texas, San Marcos Aquatic Resource Center, Inks Dam National Fish Hatchery, and the Service's Austin and Texas Coastal Field Offices collaborate regularly on conservation actions. Therefore, this unoccupied critical habitat subunit is essential for the conservation of the Texas fatmucket and is reasonably certain to contribute to such conservation.
This unit consists of 93.4 river mi (150.3 km) of the San Saba River in Menard, Mason, McCulloch, and San Saba Counties, Texas. This unit of the San Saba River extends from the Schleicher and Menard County line, near Fort McKavett, Texas, downstream to the San Saba River confluence with the Colorado River. The adjacent riparian areas are privately owned. This basin is largely rural and is dominated by mostly agricultural activities including cattle grazing and hay and pecan farming. This unit is affected by very low flows and drought during the summer, which is exacerbated by pumping. This unit contains all of the PBFs essential to the conservation of the Texas fatmucket and is currently occupied by the species. The San Saba River unit is influenced by drought, low flows, underlying geology resulting in a losing reach and is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, groundwater withdrawals and surface water diversions, and collection. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, improve habitat connectivity, and manage collection. Special management will be necessary to ensure adequate flow and prevent water quality degradation. This subunit is also occupied by Texas fawnsfoot, Texas pimpleback, and false spike.
This unit consists of 18.1 river mi (29.2 km) of Cherokee Creek in San Saba County, Texas. The adjacent riparian lands are privately owned. The Cherokee Creek unit extends from the County Road 409 bridge crossing downstream to the confluence with the Colorado River. This unit is occupied by the Texas fatmucket and contains all of the PBFs essential to the conservation of the species. Even though this unit is smaller than 50 miles, which we had determined was the reach length long enough to withstand stochastic events, this population increases the species' redundancy, making it more likely to withstand catastrophic events that may eliminate one or more of the other populations. The Cherokee Creek unit is in a rural setting, is influenced by drought and low flows, and is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, and groundwater withdrawals and surface water diversions. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. Special management may be necessary to limit the effect of low flow and drought conditions. With this special management, the threats to the population may be reduced, increasing the resiliency of the population, and providing additional redundancy and representation for the species.
This subunit is connected to known populations of Texas fatmucket in Subunits TXFM-4c and TXFM-4e, but there are no recent surveys of Beaver Creek itself. There are no instream structures in subunits TXFM-4c and TXFM-4e that would impede water flow; the flow regime is the same as in those subunits; and the host fish may move between the subunits freely. Based on this information, it is reasonable to conclude that the populations in subunits TXFM-4c and TXFM-4e are unlikely to stop at the most up- or downstream survey location; therefore, we conclude that this subunit is occupied.
However, due to the lack of recent surveys, we are analyzing this subunit against the second prong of the definition of critical habitat for unoccupied habitat out of an abundance of caution. If subunit TXFM-4f is not, in fact, occupied, it is essential to the conservation of the species because it provides for needed growth and expansion of the species in this portion of its historical range and connectivity between documented occupied reaches. Connecting occupied reaches increases the resiliency of the occupied reaches by allowing for gene flow and repopulation after stochastic events. The longer the occupied reach, the more likely it is that the Texas fatmucket population can rebound after stochastic events such as extreme flooding, dewatering, or water contamination. Therefore, subunit TXFM-4e is essential for the conservation of the species.
This unit is essential to the conservation of Texas fatmucket because it would expand the easternmost population; its loss would diminish the distribution of Texas fatmucket. Additionally, this population of Texas fatmucket is substantially far from the other population of the species, such that if a catastrophic event such as drought or extreme flooding were to occur it is likely that this population would be affected differently, increasing the chance of the species surviving such an event. The subunit is being affected by ongoing agricultural and development activities resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs.
Although it is considered unoccupied, portions of this subunit contain some or all of the physical or biological features essential for the conservation of the species. Water quantity (PBF 1) is likely present only during portions of the year. This subunit is subjected to extreme high and extreme low flows during periods of flash flooding and prolonged drought. This subunit requires management actions that address these hydrological alterations leading to extreme high and low flow events.
Suitable substrate and connected instream habitats (PBF 2) are not present through the majority of this reach. The Upper Onion Creek subunit's watershed is highly urbanized and even minor precipitation events frequently result in elevated flows, which scour, mobilize, and redeposit stream bed materials. Management actions addressing overland flows and the frequency of elevated flows in this subunit are required.
Access to host fishes (PBF 3) is the only physical or biological factor currently supported by this subunit because Texas fatmucket utilize common basses and sunfishes (see the SSA report for more details). Future management actions could focus on determining if the abundance and distribution of host fish are sufficient to support a robust Texas fatmucket population.
Urban runoff and resulting inflows from tributary streams contributes to elevated levels of salts and decreased dissolved oxygen levels in Onion Creek. While these parameters may be present during periods of normal flows, we believe they are degraded overall. Management actions that contribute to increased quality of key water parameters (PBF 4) would benefit this stream subunit and allow for the reestablishment of Texas fatmucket. This subunit occurs within the Barton Springs segment of the Edwards Aquifer recharge zone, and the continued management of this aquifer may indirectly benefit Texas fatmucket through water quality improvements.
Because this reach of Onion Creek periodically contains the flowing water conditions and host fish species used by Texas fatmucket, it qualifies as habitat according to our regulatory definition (50 CFR 424.02).
If the Texas fatmucket becomes reestablished in this reach, it will expand the occupied reach length in Onion Creek to a length that will be more resilient to the stressors that the species is facing. The longer the reach occupied by a species, the more likely it is that the population can withstand stochastic events such as extreme flooding, dewatering, or water contamination. The addition of this 18.9-mile reach to the 5.2-mile occupied section of Onion Creek would expand the existing Texas fatmucket population in Onion Creek to 25.1 miles. While this reach length is still less than 50 miles, (the stream length identified in the SSA report as a reach long enough for a population to be able to withstand stochastic events) the additional stream miles would substantially increase the resiliency of this population and dramatically reduce the likelihood of its extirpation. If this unit were established, it would likely be a moderately resilient population due to longer stream length and would increase the species' future redundancy This unit is essential for the conservation of the species because it will provide habitat for range expansion in portions of known historical habitat that is necessary to increase viability of the species by increasing its resiliency, redundancy, and representation.
We are reasonably certain that this unit will contribute to the conservation of the species because it is an extension of a currently occupied unit and it supports the host fish of the species (PBF 2), as well as the appropriate flowing water conditions (PBF 1) periodically. Additionally, the need for conservation efforts is recognized and is being discussed by our conservation partners, and methods for restoring and reintroducing the species into unoccupied habitat are being worked on. The Texas fatmucket is listed as threatened by the State of Texas, and the Texas Comptroller of Public Accounts has funded research, surveys, propagation, and reintroduction studies for this species. State and Federal partners have shown interest in propagation and reintroduction efforts for the Texas fatmucket. As previously mentioned, efforts are underway regarding a captive propagation program for Texas fatmucket at the San Marcos Aquatic Resource Center and Inks Dam National Fish Hatchery. The State of Texas, San Marcos Aquatic Resource Center, Inks Dam National Fish
We are proposing to designate approximately 917.2 river mi (1,476.1 km) in eight units (11 subunits) as critical habitat for Texas fawnsfoot. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for Texas fawnsfoot. The eight areas we propose as critical habitat are: TXFF-1: Clear Fork Brazos River Unit; TXFF-2: Upper Brazos River Unit; TXFF-3: Lower Brazos River Unit; TXFF-4: Little River; TXFF-5: Lower San Saba and Upper Colorado River Unit; TXFF-6: Lower Colorado River Unit; TXFF-7: East Fork Trinity River Unit; and TXFF-8: Trinity River Unit. Table 11 shows the occupancy of the units, the riparian ownership, and approximate length of the proposed designated areas for the Texas fawnsfoot. We present brief descriptions of all proposed units, and reasons why they meet the definition of critical habitat for Texas fawnsfoot, below.
The Upper Clear Fork Brazos River subunit is in a rural setting and is influenced by drought, low flows, and chlorides. The subunit is being affected by ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity.
This unit is essential to the conservation of Texas fawnsfoot because it would expand the most northern population; its loss would reduce the distribution of Texas fawnsfoot to only mainstem, higher order streams. Additionally, this population of Texas fawnsfoot is geographically distant from the other populations of the species, such that if a catastrophic event were to occur within the range of Texas fawnsfoot, such as extreme flooding or drought, it is likely that this population would not be affected in the same way, increasing the chance of the species surviving such an event. The Lower Clear Fork Brazos River Subunit is in a rural setting; is influenced by drought, low flows, and chlorides; and is being affected by ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs.
Although it is considered unoccupied, portions of this subunit contain some or all of the physical or biological features essential for the conservation of the species. Flowing water at rates needed by Texas fawnsfoot (PBF 1) is not adequate in this subunit throughout most of the year due to low precipitation, surface diversions, and groundwater withdrawals. In the SSA report, we noted that the Lower Clear Fork of the Brazos River experienced both the lowest flow rate (0 cfs) during the 2011 drought and the highest flow rate (approaching 4,000 cfs) during the 2015 floods. This altered hydrological regime also degrades stream habitat (PBF 2) by either scouring out available substrate or depositing large amounts of sediment on top of otherwise suitable areas. Appropriate substrates are found only in isolated reaches. Management
Freshwater drum, the Texas fawnsfoot's host fish (PBF 3), is expected to be present in the Lower Clear Fork of the Brazos River. However, it remains unclear if the abundance of host fish for the Texas fawnsfoot is currently sufficient. Thus, management actions may be necessary to ensure appropriate populations of host fish are co-occurring with Texas fawnsfoot.
Water quality (PBF 4) may not be sufficient in the Lower Clear Fork of the Brazos River. Elevated chloride levels from naturally occurring underground salt formations are exacerbated by reduced water flow. In order for Texas fawnsfoot populations to expand and occupy the Lower Clear Fork of the Brazos River subunit, management actions would be necessary to reduce chloride levels.
Because this reach of the Clear Fork Brazos River periodically contains the flowing water conditions and host fish species used by Texas fawnsfoot, it qualifies as habitat according to our regulatory definition (50 CFR 424.02).
If the Texas fawnsfoot can be reestablished in this reach, it will expand the occupied reach length in the Clear Fork Brazos River to a length that will be more resilient to the stressors that the species is experiencing. The longer the reach occupied by a species, the more likely it is that the population can withstand stochastic events such as extreme flooding, dewatering, or water contamination. In the SSA report, we identified 50 miles (80.5 km) as a reach long enough for a population to be able to withstand stochastic events, and the addition of this 28.6-mile reach to the 27.9-mile occupied section of the Clear Fork Brazos River would expand the existing Texas fawnsfoot population in the Clear Fork Brazos River to 56.5 miles, achieving a length that would allow for a highly resilient population to be reestablished, increasing the species' future redundancy. This unit is essential for the conservation of the species because it will provide habitat for range expansion in portions of known historical habitat that is necessary to increase viability of the species by increasing its resiliency, redundancy, and representation.
We are reasonably certain that this unit will contribute to the conservation of the species, because the need for conservation efforts is recognized and is being discussed by our conservation partners, and methods for restoring and reintroducing the species into unoccupied habitat are being developed. The Texas fawnsfoot is listed as threatened by the State of Texas, and the Texas Comptroller of Public Accounts has funded research, surveys, propagation, and reintroduction studies for this species. State and Federal partners have shown interest in propagation and reintroduction efforts for the Texas fawnsfoot. As previously mentioned, efforts are underway regarding a captive propagation program for Texas fawnsfoot at the San Marcos Aquatic Resource Center and Inks Dam National Fish Hatchery. The State of Texas, San Marcos Aquatic Resource Center, Inks Dam National Fish Hatchery, and the Service's Austin, Arlington and Texas Coastal Field Offices collaborate regularly on conservation actions for Texas fawnsfoot. Therefore, this unoccupied critical habitat subunit is essential for the conservation of the Texas fawnsfoot and is reasonably certain to contribute to such conservation.
The Upper Brazos River Unit consists of approximately 79.9 river mi (128.6 km) of the Brazos River in Palo Pinto and Parker Counties, Texas. The Upper Brazos River Unit extends from the FM 4 bridge crossing in Palo Pinto County, Texas, downstream to the FM 1189 bridge in Parker County, Texas. The unit is currently occupied by the species, and adjacent riparian lands are privately owned. This unit currently supports some of the PBFs essential to the conservation of Texas fawnsfoot, such as presence of appropriate fish hosts and suitable flow conditions during portions of the year, but becomes unsuitable during times of drought. The PBFs for water quality and sufficient flow are degraded in this unit, as excessive chloride concentrations and persistent low flows diminish habitat quality in this unit. Elevated chloride concentrations in this portion of Central Texas are often a result of natural causes, such as saline water inputs from spring releases flowing through subterranean salt deposits. However, while the Texas fawnsfoot may be able to tolerate some minor increases in salinity, low-flow rates in this unit exacerbate the concentrations of chlorides.
The Upper Brazos River Unit is in a rural setting with some urbanization; is influenced by drought, low flows, chlorides, and reservoir operations; and is being affected by rock, sand and gravel mining, ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. Special management may be required to improve the water quantity, water quality, and habitat connectivity in this unit.
The Lower Brazos River Subunit is in a rural setting with some urbanization; is influenced by drought, low flows, and reservoir operations; and is being affected by rock, sand and gravel mining, channel incision, ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, groundwater withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, restore riparian vegetation, and improve habitat connectivity. The Brazos River Authority (BRA) owns and manages surface water rights throughout the Brazos River basin, and, through operations of the BRA system of reservoirs, the BRA is able to manage flows in this subunit to some degree.
The Little River Unit consists of 35.6 river miles (57.3 km) of the Little River in Milam County, Texas. This subunit begins at the Bell and Milam county line and continues downstream to the confluence of the Little and San Gabriel rivers. The lands adjacent to the critical habitat unit are privately owned. The unit is currently occupied by the species and supports all of the PBFs essential to the conservation of the species. The Little River subunit is in a mostly rural setting, is influenced by ongoing development in the upper reaches associated with the Austin-Round Rock metropolitan area, and is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, and groundwater withdrawals and surface water diversions. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. The Little River Unit is also occupied by false spike.
The Upper Colorado River Subunit is influenced by reservoir operations and chlorides and is being affected by ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. This subunit is also occupied by the Texas pimpleback.
The Lower Colorado River Unit consists of approximately 124.4 river mi (200.2 river km) of the Colorado River in Colorado, Wharton, and Matagorda Counties, Texas. This unit begins at the Fayette and Colorado county line and continues downstream to the Texas State Highway 35 bridge near Bay City, Texas. Adjacent riparian habitats are privately owned. This unit is currently occupied by Texas fawnsfoot, and all PBFs essential to the conservation of the species are present in the unit. Upstream reservoir operation and urbanization in the Austin, Texas, metropolitan area contribute to altered flows and degraded water quality downstream.
The Lower Colorado River Unit is in a mostly rural setting with some urbanization downstream from an urban area; is influenced by reservoir operations, drought, low flows, flooding (leading to scour), and wastewater discharges; and is being affected by ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, wastewater inputs, and rock, sand and gravel mining. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. This subunit is also occupied by the Texas pimpleback.
This unit consists of approximately 15.6 river mi (25.1 km) of the East Fork of the Trinity River in Kaufman County, Texas. The East Fork of the Trinity River Unit extends from the Dallas and Kaufman county line downstream to the Trinity River confluence. This unit is currently occupied, and adjacent riparian lands are privately owned. Even though this unit is smaller than 50 miles, which we had determined was the reach length long enough to withstand stochastic events, the population increases the species' redundancy, making it more likely to withstand catastrophic events that may eliminate one or more of the other populations.
Some of the PBFs essential to the conservation of Texas fawnsfoot are present, such as host fishes and appropriate substrate. The East Fork Trinity River Unit is in an urban setting; is influenced by drought, low flows, wastewater discharges, and flooding (leading to scour); and is being affected by ongoing development activities, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation,
The Middle Trinity River Unit consists of approximately 157.0 river mi (252.7 km) of the Trinity River in Navarro, Henderson, Freestone, Anderson, Leon, Houston, and Madison Counties, Texas. This unit extends from the State Highway 31 bridge, west of Trinidad, Texas, to the State Highway 21 bridge in Madison County. This unit is occupied, and adjacent riparian lands are privately owned. This unit provides all of the PBFs essential to the conservation of Texas fawnsfoot, although flows in this portion of the Trinity River are elevated above natural levels due to altered hydrology within the basin and daily high mean discharge approaching 80,000 cubic feet per second. Runoff and wastewater effluent release in the Dallas-Fort Worth metropolitan area result in daily pulses of high and low flow moving through the Trinity basin.
The Middle Trinity River Unit is in a rural setting with some urbanization; is influenced by drought, low flows, wastewater discharges, reservoir operations, and flooding (leading to scour); and is being affected by channel incision, ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, restore riparian vegetation, and improve habitat connectivity.
We are proposing to designate approximately 294.5 river mi (474.0 river km) in two units (four subunits) as critical habitat for Guadalupe orb. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for Guadalupe orb. The two areas we propose as critical habitat are: GORB-1: Upper Guadalupe River Unit and GORB-2: Lower Guadalupe River Unit. Table 12 shows the occupancy of the units, the riparian ownership, and approximate length of the proposed designated areas for the Guadalupe orb. We present brief descriptions of all proposed units, and reasons why they meet the definition of critical habitat for Guadalupe orb, below.
The South Fork Guadalupe River Subunit is in a mostly rural setting; is influenced by drought, low flows, and flooding (leading to scour); and is being affected by ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, and ground water withdrawals and surface water diversions. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity.
The Upper Guadalupe River subunit is in a mostly rural setting with some urbanization; is influenced by drought, low flows, and flooding (leading to scour); and is being affected by ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. This subunit is also occupied by Guadalupe fatmucket.
The San Marcos River Subunit is in a mostly rural setting with some urbanization and downstream from an urban area; is influenced by drought, low flows, flooding (leading to scour), and wastewater discharges; and is being affected by ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. This subunit is also occupied by the false spike.
The Lower Guadalupe River subunit is in a mostly rural setting with some urbanization downstream from some urban areas; is influenced by reservoir operations, drought, low flows, flooding (leading to scour), and wastewater discharges; and is being affected by ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. This subunit is also occupied by the false spike.
We are proposing to designate approximately 494.7 river mi (796.1 km) in six units (10 subunits) as critical habitat for Texas pimpleback. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for Texas pimpleback. The five areas we propose as critical habitat are: TXPB-1: Elm Creek Unit; TXPB-2: Concho River Unit; TXPB-3: Upper Colorado River/Lower San Saba River Unit; TXPB-4: Upper San Saba River Unit; TXPB-5: Llano River Unit; and TXPB-6: Lower Colorado River Unit. Table 13 shows the occupancy of the units, the riparian ownership, and approximate length of the proposed designated areas for the Texas pimpleback. We present brief descriptions of all proposed units, and reasons why they meet the definition of critical habitat for Texas pimpleback, below.
This subunit is essential to the conservation of Texas pimpleback because it would expand one of the smaller populations to a length that would be highly resilient to stochastic events; its loss would shrink the distribution of Texas pimpleback and reduce redundancy of the species, limiting its viability. The Upper Concho River subunit is in a mostly rural setting with some urbanization downstream from an urban area; is influenced by reservoir operations, wastewater discharges, and chlorides; and is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, groundwater withdrawals and surface water diversions, and wastewater inputs.
Although it is considered unoccupied, portions of this subunit contain some or all of the physical or biological features essential for the conservation of the species. Flowing water (PBF 1) is not at levels appropriate for Texas pimpleback in this subunit. Several upstream reservoirs divert the already limited flows, and reduced precipitation has resulted in an overall decrease in river flow rates. Management actions to increase stream flows in this subunit would be required for the Texas pimpleback population to be reestablished.
Currently, appropriate substrates (PBF 2) exist in isolated areas throughout this subunit. These isolated pockets of suitable habitat could allow for expansion and recolonization of Texas pimpleback. However, future management actions that focus on habitat restoration in this reach to improve connectivity between habitat patches would improve the resiliency of this population, once restored.
Recent research on the closely related Guadalupe orb indicated that several species of catfishes are likely suitable host fishes for Texas pimpleback, as well. Currently, we believe appropriate host fishes (PBF 3) are occurring throughout the subunit and would allow for reproduction of Texas pimpleback when the species is reestablished. Management actions could address any deficit in the abundance and distribution of fish hosts in this area allowing for expansion and future reestablishment of this subunit from the adjacent occupied subunit TXPB-2a.
Water quality (PBF 4) is degraded in this subunit. The Upper Concho River subunit, due in part to low flows and high water temperature, experiences decreased levels of dissolved oxygen at such a level that could preclude mussel occupancy. We believe these periods of low dissolved oxygen primarily occur during hot summer months when droughts are common. Therefore, management actions that increase flow rates would also improve water quality in this reach.
Because this reach of the Concho River periodically contains the appropriate substrate conditions and host fish species used by Texas pimpleback, it qualifies as habitat according to our regulatory definition (50 CFR 424.02).
If the Texas pimpleback can be reestablished in this reach, it will expand the occupied reach length in the Concho River to a length that will be more resilient to the stressors that the species is facing. The longer the reach occupied by a species, the more likely it is that the population can withstand stochastic events such as extreme flooding, dewatering, or water contamination. In the SSA report, we identified 50 miles (80.5 km) as a reach long enough for a population to be able to withstand stochastic events, and the addition of this 16.0-mile reach to the 35.6-mile occupied section of the Concho River would expand the existing Texas fawnsfoot population in the Concho River to 51.6 miles, achieving a length that would allow for a highly resilient population to be reestablished, increasing the species' future redundancy. This unit is essential for the conservation of the species because it will provide habitat for range expansion in portions of known historical habitat that is necessary to increase viability of the species by increasing its resiliency, redundancy, and representation.
We are reasonably certain that this unit will contribute to the conservation of the species, because the need for conservation efforts is recognized and is being discussed by our conservation partners, and methods for restoring and reintroducing the species into unoccupied habitat are being worked on. The Texas pimpleback is listed as threatened by the State of Texas, and the Texas Comptroller of Public Accounts has funded research, surveys, propagation, and reintroduction studies for this species. State and Federal partners have shown interest in propagation and reintroduction efforts for the Texas pimpleback. As previously mentioned, efforts are underway regarding a captive propagation program
This subunit is primarily rural, with cattle grazing and irrigated orchards. Summer drought and water withdrawals cause occasional periods of low flow, which results in water quality degradation as water temperatures are high and dissolved oxygen is low. Additionally, high-flow events during flooding can result in habitat scour and sedimentation. The Lower San Saba River Subunit is experiencing some urbanization; is influenced by drought, low flows, and wastewater discharges; and is being affected by ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. This subunit is also occupied by Texas fawnsfoot and false spike.
The Upper San Saba River Unit consists of approximately 52.8 river mi (85.0 river km) of the San Saba River in Menard County, Texas. Adjacent riparian habitats are privately owned. The Upper San Saba River Unit extends from the Schleicher County line near Fort McKavett, Texas, downstream to the FM 1311 bridge crossing in Menard, County, Texas. Texas pimpleback occupies the Upper San Saba River Unit in low densities. The Upper San Saba River Unit contains the PBFs essential to the conservation of Texas pimpleback most of the year, although flows decline to low levels during summer drought. The PBFs of sufficient water flow and water quality are lacking during these times, as low-flow conditions lead to high water temperature and low dissolved oxygen. The Upper San Saba River unit is in a rural setting; is influenced by drought, low flows, and underlying geology resulting in a losing reach; and is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, groundwater withdrawals and surface water diversions, and collection. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. This subunit is also occupied by Texas fatmucket.
This subunit is essential to the conservation of Texas pimpleback because it would expand one of the smaller populations to a length that would be highly resilient to stochastic events in a separate tributary; its loss would reduce the distribution of Texas pimpleback and reduce redundancy of the species, limiting its viability. The Lower Llano River Subunit is in a rural setting; is influenced by drought, low flows, and flooding (leading to scour);
Although it is considered unoccupied, portions of this subunit contain some or all of the physical or biological features essential for the conservation of the species. Flowing water (PBF 1) is generally sufficient in this subunit during portions of the year. However, in the past decade the Llano River has seen both the highest and lowest flow rates ever recorded, with extremely low water levels and stranding of mussels during low flow, and scour and entrainment of mussels with subsequent deposition over suitable habitat during floods. Spring inputs from the South Llano River help mitigate the effects of drought in the lower portions of the Llano River, although water withdrawals for agricultural operations contribute to decreased flows during drought. Ongoing management actions by resource management agencies and non-profit organizations are contributing to restoring a natural flow regime.
In the Llano River, suitable substrates (PBF 2) exist as isolated riffles between larger pools. Given the hydrology of the Llano River basin, suitable substrates have been degraded in this reach and would need restoration.
The Texas pimpleback uses similar host fishes as the closely related Guadalupe orb, including channel catfish, flathead catfish, and tadpole madtom. Sufficient abundance of host fishes (PBF 3) are present in the lower Llano River subunit to support a population of Texas pimpleback.
Water quality in the lower Llano River subunit (PBF 4) are generally sufficient for the species during portions of the year. However, dissolved oxygen declines and water temperature increases during periods of low flow. Management to ensure sufficient flow rates in this reach will improve water quality as well.
Because this reach of the Llano River periodically contains the flowing water conditions, suitable substrates, and host fish species used by Texas pimpleback, it qualifies as habitat according to our regulatory definition (50 CFR 424.02).
If the Texas pimpleback can be reestablished in this reach, it will expand the occupied reach length in the Llano River to a length that will be more resilient to the stressors that the species is facing. The longer the reach occupied by a species, the more likely it is that the population can withstand stochastic events such as extreme flooding, dewatering, or water contamination. In the SSA report, we identified 50 miles (80.5 km) as a reach long enough for a population to be able to withstand stochastic events, and the addition of this 12.2-mile reach to the 38.3-mile occupied section of the Llano River would expand the existing Texas pimpleback population in the Llano River to 50.5 miles, achieving a length that would allow for a highly resilient population to be reestablished, increasing the species' future redundancy. This unit is essential for the conservation of the species because it will provide habitat for range expansion in portions of known historical habitat that is necessary to increase viability of the species by increasing its resiliency, redundancy, and representation.
We are reasonably certain that this unit will contribute to the conservation of the species, because the need for conservation efforts is recognized and is being discussed by our conservation partners, and methods for restoring and reintroducing the species into unoccupied habitat are being worked on. The Texas pimpleback is listed as threatened by the State of Texas, and the Texas Comptroller of Public Accounts has funded research, surveys, propagation, and reintroduction studies for this species. State and Federal partners have shown interest in propagation and reintroduction efforts for the Texas pimpleback. As previously mentioned, efforts are underway regarding a captive propagation program for Texas pimpleback at the San Marcos Aquatic Resource Center and Inks Dam National Fish Hatchery. The State of Texas, San Marcos Aquatic Resource Center, Inks Dam National Fish Hatchery, and the Service's Austin and Texas Coastal Field Offices collaborate regularly on conservation actions.
Therefore, this unoccupied critical habitat subunit is essential for the conservation of the Texas pimpleback and is reasonably certain to contribute to such conservation. This subunit is also occupied by Texas fatmucket and false spike.
The Lower Colorado River Unit consists of approximately 111.3 river mi (179.1 river km) of the Colorado River in Colorado and Wharton Counties, Texas. The Lower Colorado River unit extends from the Fayette and Colorado County line downstream to the Wharton and Matagorda County line. The unit is currently occupied, and adjacent riparian lands are privately owned. This unit contains all of the PBFs essential to the conservation of Texas pimpleback. Periodic low flows due to drought and water management activities contribute to diminished and variable flows, dewatering, scour, and water quality decline from urban run-off, agricultural operations, and wastewater treatment effluent. The Lower Colorado River Unit is in a mostly rural setting with some urbanization downstream from an urban area and is influenced by reservoir operations, drought, low flows, flooding (leading to scour), and wastewater discharges. The unit is being affected by ongoing agricultural activities and development, resulting in excessive sedimentation, water quality degradation, ground water withdrawals and surface water diversions, wastewater inputs, and rock, sand and gravel mining. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. This subunit is also occupied by Texas fatmucket.
We are proposing to designate approximately 328.2 river mi (528.2 km) in four units (seven subunits) as critical habitat for false spike. Each of the seven subunits is currently occupied by the species and contains all of the PBFs essential to the conservation of the species. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for false spike. The four areas we propose as critical habitat are: FASP-1: Little River Unit; FASP-2: San Saba River Unit; FASP-3: Llano River Unit; and FASP-4: Guadalupe River Unit. Table 14 shows the occupancy of the units, the riparian ownership, and approximate length of the proposed designated areas for the false spike. We present brief descriptions of all proposed units, and reasons why they meet the definition of critical habitat for false spike, below.
This unit consists of 50.4 river mi (81.1 km) of the San Saba River in San Saba County, Texas. The unit extends from the San Saba River and Brady Creek confluence and continues downstream to the confluence of the San Saba and Colorado Rivers. The riparian land adjacent to the critical habitat unit is privately owned. The unit is currently occupied by the species and contains all of the PBFs essential to the conservation of false spike. The San Saba River subunit is in a rural setting, is influenced by drought, low flows, and wastewater discharges, and is being affected by ongoing agricultural activities and development resulting in excessive sedimentation, water quality degradation, groundwater withdrawals and surface water diversions, and wastewater inputs. Therefore, special management is necessary to reduce sedimentation, improve water quality, maintain adequate flows, and improve habitat connectivity. Much of the land use in the watershed is agricultural, and special management considerations or protection may be required to address excess nutrients, sediment, and pollutants that enter the San Saba River and reduce instream water quality. Sources of these types of pollution are wastewater, agricultural runoff, and urban stormwater runoff. Additional special management considerations or protection may be required in this unit to address low water levels that result from water withdrawals and drought, as well as excessive erosion. This subunit is also occupied by Texas pimpleback.
This unit consists of 50.5 river mi (81.3 km) of the Llano River in Kimble and Mason Counties, Texas. The Llano River unit begins at the Ranch Road 385 bridge crossing in Kimble County and
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
We published a final regulation with a revised definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit or that involve some other Federal action. Federal agency actions within the species' habitat that may require conference or consultation or both include management and any other landscape-altering activities on Federal lands administered by the U.S. Fish and Wildlife Service, Army National Guard, U.S. Forest Service, and National Park Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251
Compliance with the requirements of section 7(a)(2), is documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, if subsequent to the previous consultation: (1) If the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (4) if a new species is listed or critical habitat designated that may be affected by the identified action. In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions.
The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.
Activities that the Service may, during a consultation under section 7(a)(2) of the Act, find are likely to destroy or adversely modify critical habitat include, but are not limited to:
(1) Actions that would alter the minimum flow or the existing flow regime. Such activities could include, but are not limited to, impoundment, channelization, water diversion, water withdrawal, and hydropower generation. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the Central Texas mussels and its fish host by decreasing or altering flows to levels that would adversely affect their ability to complete their life cycles.
(2) Actions that would significantly alter water chemistry or temperature. Such activities could include, but are not limited to, release of chemicals (including pharmaceuticals, metals, and salts), biological pollutants, or heated effluents into the surface water or connected groundwater at a point source or by dispersed release (non-point source). These activities could alter water conditions to levels that are beyond the tolerances of the mussel or its host fish and result in direct or cumulative adverse effects to these individuals and their life cycles.
(3) Actions that would significantly increase sediment deposition within the stream channel. Such activities could include, but are not limited to, excessive sedimentation from livestock grazing, road construction, channel alteration, timber harvest, off-road vehicle use, agricultural, industrial, and urban development, and other watershed and floodplain disturbances. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the mussel and its fish host by increasing the sediment deposition to levels that would adversely affect their ability to complete their life cycles.
(4) Actions that would significantly alter channel morphology or geometry. Such activities could include, but are not limited to, channelization, impoundment, road and bridge construction, mining, dredging, and destruction of riparian vegetation. These activities may lead to changes in water flows and levels that would degrade or eliminate the mussel or its fish host and/or their habitats. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of the mussel or its fish host.
(5) Actions that result in the introduction, spread, or augmentation of nonnative aquatic species in occupied stream segments, or in stream segments that are hydrologically connected to occupied stream segments, even if those segments are occasionally intermittent, or introduction of other species that compete with or prey on the Central Texas mussels. Possible actions could include, but are not limited to, stocking of nonnative fishes, stocking of sport fish, or other related actions. These activities can introduce parasites or disease for host fish, and can result in direct predation, or affect the growth, reproduction, and survival, of Central Texas mussels.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise the discretion to exclude the area only if such exclusion would not result in the extinction of the species. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
The Service is aware of efforts currently under way by the Brazos River Authority, Trinity River Authority of Texas, and Lower Colorado River Authority (collectively the River Authorities) to develop comprehensive management plans for one or more species of Central Texas mussels. The Service is currently working with the River Authorities individually to develop Candidate Conservation Agreements with Assurances (CCAAs) that address activities conducted by the River Authorities and conservation measures specifically designed to provide a net conservation benefit to the covered species, including the Central Texas mussels, in the covered area for the term of the CCAA. The Brazos River Authority CCAA would cover the false spike and Texas fawnsfoot. The Trinity River Authority of Texas is developing a CCAA that would cover the Texas fawnsfoot. The Colorado River Authority is developing a CCAA that would cover the Texas fawnsfoot and Texas pimpleback. Finally, the Guadalupe-Blanco River Authority, in partnership with the Upper Guadalupe River Authority, has plans to develop a comprehensive Habitat Conservation Plan (HCP) for the entire Guadalupe River Basin that would cover the false spike, Guadalupe orb, and Guadalupe fatmucket, among other species. None of these plans have been approved or operationalized as of the time this proposal is published. While these agreements are not yet completed, if and when they are, we may consider excluding areas covered by the completed agreements from our critical habitat designations.
Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate whether a specific critical habitat designation may restrict or modify specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”
The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socioeconomic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (
For these proposed designations, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from these proposed designations of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designations of critical habitat for the Central Texas mussels (Industrial Economics, Inc. (IEc) 2019, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs (
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the proposed critical habitat designations. In our December 4, 2019, IEM describing probable incremental economic impacts that may result from the proposed designations, we first identified probable incremental economic impacts associated with each of the following categories of activities: (1) Federal lands management (National Park Service, U.S. Forest Service, Department of Defense); (2) agriculture; (3) forest management/silviculture/timber; (4) development; (5) recreation; (6) restoration activities; and (7) transportation. We considered each industry or category individually. Additionally, we considered whether the activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we list any of the species, as proposed in this document, in areas where the Central Texas mussels are present, under section 7 of the Act, Federal agencies would be required to consult with the Service on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designations (
The proposed critical habitat designations for the Central Texas mussels totals approximately 1,944 river mi (3,129 river km) in 27 units with a combination of occupied and unoccupied areas. In occupied areas, any actions that may affect the species or their habitat would likely also affect proposed critical habitat, and it is unlikely that any additional conservation efforts would be required to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the species. Therefore, the only additional costs that are expected in the occupied proposed critical habitat designations are administrative costs, due to the fact that this additional analysis will require time and resources by both the Federal action agency and the Service. However, it is believed that, in most circumstances, these costs would not reach the threshold of “significant” under E.O. 12866. We anticipate incremental costs of section 7 consultations in occupied critical habitat to total less than $75,000 per year.
In unoccupied critical habitat, any costs of section 7 consultations would not be incurred due to the listing of the species. We are proposing to designate six subunits that are currently unoccupied by the Central Texas mussels. We anticipate approximately five new formal section 7 consultations to occur in the next 10 years in these subunits. Considering the costs of formal consultation as well as project modifications that arise from consultation, we project consultations in unoccupied critical habitat to cost approximately $15,000 per consultation.
In total, in both occupied and unoccupied critical habitat, we expect the total cost of critical habitat designations not to exceed $82,500 per year.
We are soliciting data and comments from the public on the DEA discussed above, as well as on all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts received during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90. If we receive credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion, we will conduct an exclusion analysis for the relevant area or areas. We may also exercise the discretion to evaluate any other particular areas for possible exclusion. Furthermore, when we conduct an exclusion analysis based on impacts identified by experts in, or sources with firsthand knowledge about, impacts that are outside the scope of the Service's expertise, we will give weight to those impacts consistent with the expert or firsthand information unless we have rebutting information. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
The first sentence of section 4(b)(2) of the Act requires the Service to consider the economic impacts (as well as the impacts on national security and any other relevant impacts) of designating critical habitat. In addition, economic impacts may, for some particular areas, play an important role in the discretionary section 4(b)(2) exclusion analysis under the second sentence of section 4(b)(2). In both contexts, the Service will consider the probable incremental economic impacts of the designation. When the Service undertakes a discretionary section 4(b)(2) exclusion analysis with respect to a particular area, we will weigh the economic benefits of exclusion (and any
The Service will use its discretion in determining how to weigh probable incremental economic impacts against conservation value. The nature of the probable incremental economic impacts and not necessarily a particular threshold level triggers considerations of exclusions based on probable incremental economic impacts. For example, if an economic analysis indicates high probable incremental impacts of designating a particular critical habitat unit of low conservation value (relative to the remainder of the designation), the Service may consider exclusion of that particular unit.
Under section 4(b)(2) of the Act, we consider whether there are lands where a national security impact might exist. In preparing this proposal, we have determined that there are no lands within the proposed designations of critical habitat for the Central Texas mussels owned or managed by the Department of Defense or Department of Homeland Security. We anticipate no impact on national security because there are no lands owned or managed by the Department of Defense within this proposal, and we have not identified any national security or homeland security activities that would be affected by the proposed designations. However, if through the public comment period we receive credible information regarding impacts on national security or homeland security from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will conduct a discretionary exclusion analysis to determine whether to exclude those areas under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements, or candidate conservation agreements with assurances (CCAAs), or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look whether there are Tribal conservation plans or parnerships, Tribal resources, or government-to-government relationships of the United States with Tribal entities that may be affected by the designation. We also consider any State, local, public health, community interest, environmental, or social impacts that might occur because of the designations.
In preparing this proposal, we have determined that there are currently no HCPs or other management plans for the Central Texas mussels, and the proposed designations do not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from these proposed critical habitat designations. We are aware of efforts currently under way by the River Authorities to develop CCAAs for the Central Texas mussels, as discussed above, and will take those efforts into account in a final designation. During the development of a final designation, we will consider any additional information received through the public comment period regarding other relevant impacts to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while 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 ends. The Executive order 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.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500
Under the RFA, as amended, and as understood in the light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking only on those entities directly regulated by the rulemaking itself and, therefore, are not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designations. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if promulgated, the proposed critical habitat designations will not have a significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designations would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designations will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that the designations of this proposed critical habitat will significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designations of critical habitat do not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this proposed rule would significantly or uniquely affect small governments because the lands being proposed for critical habitat designation are owned by the State of Texas. This government entity does not fit the definition of “small governmental jurisdiction.” Therefore, a Small Government Agency Plan is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Central Texas mussels in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify
In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of these proposed critical habitat designations with, appropriate State resource agencies in Texas. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the National Government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designations may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of designated critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We have determined that no tribal lands fall within the boundaries of the proposed critical habitat designations for the Central Texas mussels, so no tribal lands would be affected by the proposed designations.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this proposed rule are the staff members of the U.S. Fish and Wildlife Service's Species Assessment Team and the Austin Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(c) Texas fawnsfoot (
(i) Import or export, as set forth at § 17.21(b).
(ii) Take, as set forth at § 17.21(c)(1).
(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1).
(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e).
(v) Sale or offer for sale, as set forth at § 17.21(f).
(2)
(i) Conduct activities as authorized by a permit under § 17.32.
(ii) Take, as set forth at § 17.21(c)(2) through (4) for endangered wildlife.
(iii) Take, as set forth at § 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken Texas fawnsfoot, as set forth at § 17.21(d)(2).
(v) Take incidental to an otherwise lawful activity caused by:
(A) Channel restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their groundwater aquifers.
(B) Bioengineering methods such as streambank stabilization using live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live fascines (live branch cuttings, usually willows, bound together into long, cigar-shaped bundles), or brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). These methods would not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures. In addition, to reduce streambank erosion and sedimentation into the stream, work using these bioengineering methods would be performed at base-flow or low-water conditions and when significant rainfall is not predicted. Further, streambank stabilization projects must keep all equipment out of the stream channels and water.
(C) Soil and water conservation practices and riparian and adjacent upland habitat management activities that restore in-stream habitats for the species, restore adjacent riparian habitats that enhance stream habitats for the species, stabilize degraded and eroding stream banks to limit sedimentation and scour of the species' habitats, and restore or enhance nearby upland habitats to limit sedimentation of the species' habitats and comply with conservation practice standards and specifications, and technical guidelines developed by the Natural Resources Conservation Service.
(D) Presence or abundance surveys for Texas fawnfoot conducted by individuals who successfully complete and show proficiency by passing the end-of-course test with a score equal to or greater than 90 percent, with 100 percent accuracy in identification of mussel species listed under the Endangered Species Act, in an approved freshwater mussel identification and sampling course (specific to the species and basins in which the Texas fawnsfoot is known to occur), such as that administered by the Service, a State wildlife agency, or qualified university experts. Those individuals exercising the exemption in this paragraph (c)(2)(v)(D) should provide reports to the Service annually on number, location, and date of collection. The exemption in this paragraph (c)(2)(v)(D) does not apply if lethal take or collection is anticipated. The exemption in this paragraph (c)(2)(v)(D) only applies for 5 years from the date of successful course completion.
The additions read as follows:
(f) * * *
(1) A critical habitat unit is depicted for Kendall and Kerr Counties, Texas, on the map in this critical habitat entry.
(2) Within this area, the physical or biological features essential to the conservation of Guadalupe fatmucket consist of the following components within waters and streambeds up to the ordinary high-water mark:
(i) Flowing water at moderate to high rates with sufficient depth to remain sufficiently cool and oxygenated during low-flow periods;
(ii) Substrate including bedrock and boulder crevices, point bars, and vegetated run habitat comprising sand, gravel, and larger cobbles;
(iii) Green sunfish (
(iv) Water quality parameters within the following ranges:
(A) Dissolved oxygen >2 mg/L;
(B) Salinity <2 ppt;
(C) Total ammonia <0.77 mg/L total ammonia nitrogen;
(D) Water temperature <29 °C (84.2 °F); and
(E) Low levels of contaminants.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [EFFECTIVE DATE OF THE FINAL RULE].
(4) The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at
(5) Index map of critical habitat for the Central Texas mussels, which includes the Guadalupe fatmucket, follows:
(1) Critical habitat units are depicted for Blanco, Gillespie, Hays, Kimble, Llano, Mason, McCulloch, Menard, Runnels, San Saba, and Travis Counties, Texas, on the maps in this critical habitat entry.
(2) Within these areas, the physical or biological features essential to the conservation of Texas fatmucket consist of the following components within waters and streambeds up to the ordinary high-water mark:
(i) Flowing water at moderate to high rates with sufficient depth to remain sufficiently cool and oxygenated during low-flow periods;
(ii) Substrate including bedrock and boulder crevices, point bars, and vegetated run habitat comprising sand, gravel, and larger cobbles;
(iii) Green sunfish (
(iv) Water quality parameters within the following ranges:
(A) Dissolved oxygen >2 mg/L;
(B) Salinity <2 ppt;
(C) Total ammonia <0.77 mg/L total ammonia nitrogen;
(D) Water temperature <29 °C (84.2 °F); and
(E) Low levels of contaminants.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [EFFECTIVE DATE OF THE FINAL RULE].
(4) The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at
(5)
(6) Map of TXFM-1: Elm Creek follows:
(7) Map of Unit TXFM-2: San Saba River, Unit TXFM-3: Cherokee Creek, Unit TXFM-4: Llano River, and Unit TXFM-5: Pedernales River, follows:
(8) Map of Unit TXFM-6: Onion Creek follows:
(1) Critical habitat units are depicted for Anderson, Austin, Brazos, Burleson, Colorado, Falls, Fort Bend, Freestone, Grimes, Henderson, Houston, Kaufman, Lampasas, Leon, Madison, Matagorda, McLennan, Milam, Mills, Navarro, Palo Pinto, Parker, Robertson, San Saba, Shackelford, Stephens, Throckmorton, Waller, Washington, and Wharton Counties, Texas, on the maps in this critical habitat entry.
(2) Within these areas, the physical or biological features essential to the conservation of Texas fawnsfoot consist of the following components within waters and streambeds up to the ordinary high-water mark:
(i) Flowing water at rates suitable to prevent excess sedimentation but not so high as to dislodge individuals or sediment;
(ii) Stable bank and riffle habitats with gravel, sand, silt, and mud substrates that are clean swept by flushing flows;
(iii) Freshwater drum (
(iv) Water quality parameters within the following ranges:
(A) Dissolved oxygen >2 mg/L;
(B) Salinity <2 ppt;
(C) Total ammonia <0.77 mg/L total ammonia nitrogen;
(D) Water temperature <29 °C (84.2 °F); and
(E) Low levels of contaminants.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [EFFECTIVE DATE OF THE FINAL RULE].
(4) The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at
(5)
(6) Map of Unit TXFF-1: Clear Fork Brazos River follows:
(7) Map of Unit TXFF-2: Upper Brazos River follows:
(8) Map of Unit TXFF-3: Lower Brazos River follows:
(9) Map of Unit TXFF-4: Little River follows:
(10) Map of TXFF-5: Lower San Saba and Upper Colorado River follows:
(11) Map of Unit TXFF-6: Lower Colorado River follows:
(12) Map of Unit TXFF-7: East Fork Trinity River follows:
(13) Map of Unit TXFF-8: Trinity River follows:
(1) Critical habitat units are depicted for Caldwell, Comal, DeWitt, Gonzales, Guadalupe, Kendall, Kerr, and Victoria Counties, Texas, on the maps in this critical habitat entry.
(2) Within these areas, the physical or biological features essential to the conservation of Guadalupe orb consist of the following components within waters and streambeds up to the ordinary high-water mark:
(i) Flowing water at rates suitable to keep riffle habitats wetted and well-oxygenated and to prevent excess sedimentation or scour during high-flow events but not so high as to dislodge individuals;
(ii) Stable riffles and runs with substrate composed of cobble, gravel, and fine sediments;
(iii) Channel catfish (
(iv) Water quality parameters within the following ranges:
(A) Dissolved oxygen >2 mg/L;
(B) Salinity <2 ppt;
(C) Total ammonia <0.77 mg/L total ammonia nitrogen;
(D) Water temperature <29 °C (84.2 °F); and
(E) Low levels of contaminants.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [EFFECTIVE DATE OF THE FINAL RULE].
(4) The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at
(5)
(6) Map of Unit GORB-1: Upper Guadalupe River follows:
(7) Map of Unit GORB-2: Lower Guadalupe River follows:
(1) Critical habitat units are depicted for Brown, Coleman, Colorado, Concho, Kimble, Lampasas, Mason, McCulloch, Menard, Mills, San Saba, Tom Green, and Wharton Counties, Texas, on the maps in this critical habitat entry.
(2) Within these areas, the physical or biological features essential to the conservation of Texas pimpleback consist of the following components within waters and streambeds up to the ordinary high-water mark:
(i) Flowing water at rates suitable to keep riffle habitats wetted and well-oxygenated and to prevent excess sedimentation or scour during high-flow events but not so high as to dislodge individuals;
(ii) Stable riffles and runs with substrate composed of cobble, gravel, and fine sediments;
(iii) Channel catfish (
(iv) Water quality parameters within the following ranges:
(A) Dissolved oxygen >2 mg/L;
(B) Salinity <2 ppt;
(C) Total ammonia <0.77 mg/L total ammonia nitrogen;
(D) Water temperature <29 °C (84.2 °F); and
(E) Low levels of contaminants.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [EFFECTIVE DATE OF THE FINAL RULE].
(4) The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at
(5)
(6) Map of Unit TXPB-1: Elm Creek follows:
(7) Map of Unit TXPB-2: Concho River follows:
(8) Map of Unit TXPB-3: Upper Colorado River and Lower San Saba River follows:
(9) Map of Unit TXPB-4: Upper San Saba River follows:
(10) Map of Unit TXPB-5: Llano River follows:
(11) Map of Unit TXPB-6: Lower Colorado River follows:
(1) Critical habitat units are depicted for DeWitt, Gonzales, Kimble, Mason, Milam, San Saba, Victoria, and Williamson Counties, Texas, on the maps in this critical habitat entry.
(2) Within these areas, the physical or biological features essential to the conservation of false spike consist of the following components within waters and streambeds up to the ordinary high-water mark:
(i) Flowing water at rates suitable to keep riffle habitats wetted and well oxygenated, and to prevent excess sedimentation but not so high as to dislodge individuals;
(ii) Stable riffles and runs with cobble, gravel, and fine sediments;
(iii) Blacktail shiner (
(iv) Water quality parameters within the following ranges:
(A) Dissolved oxygen >2 mg/L;
(B) Salinity <2 ppt;
(C) Total ammonia <0.77 mg/L total ammonia nitrogen;
(D) Water temperature <29 °C (84.2 °F); and
(E) Low levels of contaminants.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [EFFECTIVE DATE OF THE FINAL RULE].
(4) The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at
(5)
(6) Map of Unit FASP-1: Little River follows:
(7) Map of Unit FASP-2: San Saba River follows:
(8) Map of Unit FASP-3: Llano River follows:
(9) Map of Unit FASP-4: Guadalupe River follows: